Innovation SERVICES AGREEMENT

Table of Contents

innovation SERVICES AGREEMENT

[Consider renaming this agreement to suit the activities to be undertaken by the successful proponent. For example, “Solution Development and Deployment Agreement”.]

AGREEMENT # [Insert]

Between

[Insert Name of Purchaser]

- and -

[Insert Name of Supplier]

[Drafting notes and input fields are set off with square brackets, shaded and in italics and bold. After considering all drafting notes, change any text that is to remain in the draft agreement so that the formatting aligns with the surrounding text.]

[Remove all instructions and ensure reference to other sections are accurate before issuing.]

Article 1 Interpretation 4

1.1 Definitions 4

1.2 Schedules 6

1.3 Order of Precedence 6

1.4 Rules of Interpretation 7

Article 2 Services 7

2.1 General 7

2.2 Value Enhancement 7

2.3 Additional Services 7

2.4 Finalization of Services 8

2.5 Ownership of Deliverables 8

2.6 Initiation of Production Phase 10

Article 3 Project Management 10

3.1 General 10

3.2 Supplier Project Manager 10

3.3 Reports 11

3.4 Personnel 11

3.5 Application of Purchaser’s Rules to Supplier’s Personnel 11

3.6 Purchaser Assistance 12

3.7 Workers’ Compensation 12

3.8 Workplace Safety 12

3.9 Regular Hours 13

3.10 Changes to Schedules 13

Article 4 Fees and Payment 13

4.1 Fees 13

4.2 Invoicing 13

4.3 Taxes 14

4.4 Other Costs and Expenses 14

Article 5 Representations, Warranties, Indemnities 14

5.1 Supplier’s Representations and Warranties 14

5.2 Nature of Warranties 15

5.3 Indemnity 15

5.4 Limitation of Liability 16

Article 6 Term and Termination 17

6.1 Term 17

6.2 Extension 17

6.3 Termination by Either Party 17

6.4 Termination by Purchaser 17

6.5 Obligations in the Event of Termination or Expiration of the Agreement 18

6.6 No Limitation of Remedies 19

6.7 Survival 19

Article 7 General 19

7.1 Liability Insurance 19

7.2 Compliance with Laws 20

7.3 Remedies Cumulative 20

7.4 Force Majeure 20

7.5 Alternative Dispute Resolution 21

7.6 Notices 22

7.7 Publicity 23

7.8 Confidentiality 23

7.9 Property of the Purchaser 25

7.10 Entire Agreement 25

7.11 Time of Essence 26

7.12 Assignment and Enurement 26

7.13 Amendment and Waivers 26

7.14 Independent Parties 26

7.15 Currency 26

7.16 Legislation 27

7.17 Governing Laws 27

Supplier’s Proposal Schedule 28

Personnel Schedule 29

Services and Fees Schedule 30

Information Practices Schedule 31

Production Phase Purchase Terms Schedule 34

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[Agreement Health Services Template]

INNOVATION SERVICES Agreement

[Consider renaming this agreement to suit the activities to be undertaken. For example, “Solution Development and Deployment Agreement”.]

THIS AGREEMENT (“Agreement”) is made as of [Insert date], between [Insert legal name of Purchaser], with an office at [Insert address] (the “Purchaser”) and [Insert legal name of supplier] with an office at [Insert address] (the “Supplier”).

[If several purchasers are acting in concert, it may be advisable to have one of them, or some other agent, act as the “Purchaser” under this Agreement (rather than have all of them sign it). For example, one hospital in a LHIN may take the lead, and be responsible for coordinating with the Supplier, and may be the named “Purchaser” of innovation services under this Agreement. This may assist with centralizing instructions and oversight. Additional legal and other advice may be needed, depending on the structure that is chosen (e.g., to ensure that any intellectual is appropriately owned; to avoid disadvantageous tax consequences, etc.). Note that if this Agreement includes a production phase, the Production Phase Purchase Terms Schedule contemplates that all prospective purchasers will be listed in that Schedule.]

WHEREAS the Purchaser issued a request for proposals (“RFP”) dated [Insert date] for [insert description of the Services and Solution at a high level. For example: the design and development, and at the Purchaser’s option, the implementation, production and installation, of the Solution (as defined below).] (the “Project”);

AND WHEREAS the Supplier submitted a proposal dated [Insert date] in response to the RFP;

AND WHEREAS upon the completion of the evaluation process pursuant to the RFP, the Supplier was identified by the Purchaser as the preferred proponent pursuant to the RFP;

AND WHEREAS the Supplier and the Purchaser were able to agree on the terms and conditions of this Agreement in respect of the Project;

NOW THEREFORE, for good and valuable consideration, the parties hereto agree as follows:

Article 1 Interpretation

1.1 Definitions

In this Agreement, unless the context otherwise requires, the following terms have the meanings indicated below:

(a) “Business Day” or “Business Days” means Monday to Friday between the hours of 9:00 a.m. to 5:00 p.m., except when such a day is a public holiday, as defined in the Employment Standards Act (Ontario) or as otherwise agreed to by the parties in writing.

(b) “Days” means calendar days.

(c) “Deliverables” means all services and work to be provided or performed by the Supplier, under the Agreement, and includes everything that is necessary to be supplied, done, or delivered by the Supplier in respect of the Solution.

(d) “Effective Date” means the date that this Agreement is made, as first shown above.

(e) “Event of Force Majeure” means any cause beyond the reasonable control of a party to this Agreement, including any act of God, outbreak, or epidemic of any kind, communicable and virulent disease, strike, flood, fire, embargo, boycott, act of terrorism, insurrection, war, explosion, civil disturbance, shortage of gas, fuel or electricity, interruption of transportation, governmental order, unavoidable accident, or shortage of labour or raw materials.

(f) “Fees” means the fees payable in respect of the Services set out in Section 4.1 (Fees).

(g) “FIPPA” means the Freedom of Information and Protection of Privacy Act (Ontario).

(h) “Governmental Authorities” means governments, regulatory authorities, governmental departments, agencies, agents, commissions, bureaus, officials, ministers, Crown corporations, courts, bodies, boards, tribunals, or dispute settlement panels or other law, rule, or regulation-making organizations or entities having or purporting to have jurisdiction on behalf of any nation, province, territory, state, or other geographic or political subdivision thereof; or exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory, or taxing authority or power, and includes the MOHLTC and Health Canada.

(i) “Indemnitees” means the Purchaser and its officers, directors, agents, employees, or physicians.

(j) “Intellectual Property Rights” includes any proprietary rights provided under: (i) patent law; (ii) copyright law (including moral rights); (iii) trade-mark law; (iv) design patent or industrial design law; (v) semi-conductor chip or mask work law; or (vi) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, or the expression or use of same; or any applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing;

(k) “Personal Information” means recorded information about an identifiable individual or that may identify an individual (including PHI), but does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

(l) “PHI” means personal health information as defined in the Personal Health Information Protection Act, 2004 (Ontario).

(m) “Privacy Office” means the privacy office of the Purchaser.

(n) “Purchasing Organization” means the organization that conducted the RFP process on behalf of the Purchaser.

(o) “Services” means the services described in the Agreement and the Services and Fees Schedule.

(p) “Solution” means the [insert general description of the solution that is the intended output of the Services – this should describe what the solution should do, rather than a fixed description of exactly how it should be done].

(q) “Supplier Materials” means the materials and information possessed by the Supplier prior to the commencement of the Supplier’s delivery of the Services, or acquired by the Supplier during the performance of the Services, except to the extent that such materials and information: (i) were developed or acquired (whether alone or jointly with others) specifically and exclusively for the Purchaser in connection with the Services; or (ii) were provided to the Supplier by the Purchaser, whether directly or indirectly.

(r) “Supplier’s Personnel” means the Supplier’s employees, agents, representatives, and subcontractors who are listed in the Personnel Schedule.

(s) “Supplier Project Manager” means the manager designated in accordance with Section 3.1 (Supplier Project Manager).

(t) “Term” means the effective period of the Agreement as set out in Section 6.1 (Term).

1.2 Schedules

The following Schedules are attached to and form an integral part of this Agreement:

(a) Supplier’s Proposal Schedule

(b) Personnel Schedule

(d) Information Practices Schedule

(e) Production Phase Purchase Terms Schedule

[This list may require alteration or may be augmented to reflect the RFP process.]

1.3 Order of Precedence

In the event of any conflict or inconsistency in the Agreement, the following is the order of precedence of documents comprising this Agreement:

(a) Article 1 to Article 7 of this Agreement;

(b) the Schedules annexed to this Agreement, except for the Supplier’s Proposal Schedule; and

1.4 Rules of Interpretation

This Agreement shall be interpreted according to the following provisions, unless the context requires a different meaning:

(a) Unless the context otherwise requires, wherever used herein the plural includes the singular, the singular includes the plural, and each of the masculine and feminine includes the other gender.

(b) Words in the Agreement shall bear their natural meaning.

(c) References containing terms such as “includes” and “including”, whether or not used with the words “without limitation” or “but not limited to”, shall not be deemed limited by the specific enumeration of items but shall, in all cases, be deemed to be without limitation and construed and interpreted to mean “includes without limitation” and “including without limitation”.

(d) In construing the Agreement, general words introduced or followed by the word “other” or “including” or “in particular” shall not be given a restrictive meaning because they are followed or preceded (as the case may be) by particular examples intended to fall within the meaning of the general words.

Article 2 Services

2.1 General

The Supplier agrees to provide the Services in accordance with the requirements of this Agreement and in a professional manner.

2.2 Value Enhancement

In performing the Services, the Supplier shall work with the Purchaser to identify potential savings and/or service improvements in the Solution and shall make recommended changes to the methods and processes used by the Purchaser in connection with the Solution.

2.3 Additional Services

Services not described in the Agreement shall be performed only upon the Purchaser’s written authorization.

2.4 Finalization of Services

(a) If any part of the Services provided are not acceptable to the Purchaser, acting reasonably, the Purchaser shall provide notice to the Supplier, which notice shall explain the deficiency(ies) in the Services.

(b) Upon receiving such notice, the Supplier shall take immediate corrective action and remedy the deficiency(ies) within 10 Days.

(c) Where the Supplier’s attempt to correct such deficiency(ies) is unsuccessful, in the Purchaser’s sole discretion, the Purchaser may:

(i) provide notice to the Supplier in accordance with 2.4(a) and give the Supplier the opportunity to remedy the deficiency or deficiencies pursuant to 2.4(b); or

(ii) terminate the Agreement in accordance with the provisions set forth in Article 6 (Term and Termination).

2.5 Ownership of Deliverables

[This section 2.5 contemplates that the Purchaser will “own” the intellectual property rights in the Deliverables. This may not reflect the intended arrangement, such as where the Supplier will develop a Solution that it will own and license or provide to the Purchaser. The form of agreement attached to the RFP should be clear as to whether the Purchaser intends to own these rights. This clarity is essential for the proponents to submit accurately priced proposals and to allow for a proper comparison of proposals. If the Supplier is to own the intellectual property rights in the Deliverables, consider the following in place of the clause below:

2.5.1 General

(a) The Purchaser acknowledges that, except in respect of the Purchaser Materials (the licensing of which is set out in Section 2.5.2(b)), all Intellectual Property Rights in all Deliverables shall be retained by the Supplier and the Purchaser shall have no Intellectual Property Rights in such Deliverables.

(b) All Intellectual Property Rights in all Purchaser Materials shall be retained by the Purchaser subject to a grant by the Purchaser to the Supplier of an irrevocable, non-exclusive, worldwide, royalty-free license to use any Purchaser Materials that are incorporated into the Deliverables to the extent necessary for Purchaser to use or access the Deliverables, whether for the purposes contemplated hereby or for such other purposes as are reasonable given the nature of the Deliverables.

Also, add the following definition to the Definitions Section and delete the defined term for “Supplier Materials”:

“Purchaser Materials” means the materials and information (i) possessed by the Purchaser prior to the commencement of the Supplier’s delivery of the Services, or (ii) provided by the Purchaser to the Supplier during the performance of the Services (and were not previously provided to the Purchaser by the Supplier, whether directly or indirectly).]

2.5.2 General

(a) Except in respect of Supplier Materials (the licensing of which is set out in Section 2.5.2(b)), all Intellectual Property Rights in all Deliverables shall be and hereby are assigned to the Purchaser and the Supplier shall have no Intellectual Property Rights in such Deliverables. At the request and expense of the Purchaser, the Supplier shall do all acts necessary and sign all documentation necessary in order to assign to the Purchaser all such Intellectual Property Rights and to enable the Purchaser to register patents, copyrights, trade-marks, mask works, industrial designs and such other protections for the Deliverables as the Purchaser deems advisable anywhere in the world.

(b) All Intellectual Property Rights in all Supplier Materials shall be retained by the Supplier subject to a grant by the Supplier to the Purchaser of an irrevocable, non-exclusive, worldwide, royalty-free license to use any Supplier Materials that are incorporated into the Deliverables to the extent necessary for Purchaser to use or access the Deliverables, whether for the purposes contemplated hereby or for such other purposes as are reasonable given the nature of the Deliverables.