Trading Partner Agreement (TPA)

• General Conditions Professional Services Medium Complexity - 2010B
• Software Development or Modification Services - 4002
• Licensed Software - 4003
• Maintenance and Support Services for Licensed Software - 4004
• Contractor to Own Intellectual Property Rights in Foreground Information - 4006
• Canada to Own Intellectual Property Rights in Foreground Information - 4007
• Clauses of General Application
• Operations Protocol
• TPA Signature Page
• Mandatory Requirements
• Certifications

The period of the Trading Partner Agreement (TPA) shall commence on the date that the Minister accepts the signature page signed by the Supplier. On that date, the Agreement with Her Majesty the Queen in right of Canada ("Her Majesty"), as represented by the Minister of Public Works and Government Services ("the Minister"), of the first part and a Supplier ("the Seller", "Contractor") of the second part.

Whereas the parties wish to establish a framework for agreements respecting the supply of professional services; the supply of such services will be facilitated by the use of Professional Services (PS) Online; and the parties have agreed that relations between the Supplier, the Minister and the Federal Government Department Users in the creation of contracts through the PS Online will be governed by the terms of this TPA.

THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:

Table of Contents

Article 1 Interpretation

• 1.01 Definitions
• 1.02 Terms and Conditions of TPA
• 1.03 Headings
• 1.04 Extended Meanings
• 1.05 Related Documents / Information
• 1.06 Amendments
• 1.07 Applicable Law

Article 2 Equipment and News Bulletins

• 2.01 Equipment
• 2.02 News Bulletins

Article 3 Reliability

• 3.01 Security
• 3.02 Reasonable Testing
• 3.03 Incomplete, Inaccurate or Corrupted Documents
• 3.04 Confidentiality
• 3.04.1 Promulgation of the TPA
• 3.05 Disaster Recovery
• 3.06 Certification of Accuracy

Article 4 Contractual Matters

• 4.01 Contracts
• 4.02 Terms and Conditions of Supplier's Offer and Resulting Contract
• 4.03 Enforceability
• 4.04 Periodic Reports

Article 5 Liability

• 5.01 Consequential Damages
• 5.02 Force Majeure
• 5.03 Disclosure of Data or Information
• 5.04 Applicable Laws to Data

Article 6 Supplier's Information

Article 7 Period of TPA, Termination, Setting Aside

• 7.01 Period of the TPA
• 7.02 Termination by the Supplier
• 7.03 Termination by the Minister / Setting Aside the TPA
• 7.04 Survival of Specified Sections

Article 8 Dispute Resolution

• 8.01 Dispute
• 8.02 Submission of Notice of Disputes
• 8.03 Other Remedies

TPA Signature Page

Mandatory Requirements

Certifications

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Article 1 - Interpretation

1.01 Definitions
When used in the TPA or in any Schedules hereto, the following words and terms shall have the following meanings:

"Active Account"
means supplier's information visible to Federal Government Department Users.

"Authorized Access Person (AAP)"
means the Supplier as represented by the one and only individual who is authorized to access the PS Online and identified on the TPA Signature Page;

"Clauses of General Application"
are the Clauses of General Application set out in the web site, which are incorporated, as applicable, into the Contract between the Supplier and the Federal Government Department User.

"Confidential Information"
means, with respect to each of the parties to this TPA respectively, the information and trade secrets of that party and the information and trade secrets of other persons in favor of which that party has undertaken, or is otherwise bound by, an obligation of confidentiality, regardless of the form in which such information is constituted, excluding however, information that is demonstrated by the party seeking entitlement to an exemption to comprise information which has become publicly available other than as a result of the misconduct of that party, information within the party's knowledge prior to the effective date of this TPA, information which is required to be released pursuant to the order of a tribunal or court of competent jurisdiction, or information that has been lawfully and legitimately disclosed to that party by another source;

"Contract"
refers to the business relationship between the parties in respect of the purchase and sale of services that result from an exchange of documents, via the PS Online and in accordance with Operations Protocol for the Parties, which incorporates the applicable terms and conditions identified in such documents;

"Federal Government Department User"
means Her Majesty as represented by an authorized user of any federal department, agency or Crown Corporation listed in Schedules I, I.1, II or III of the Financial Administration Act who is authorized to issue contracts to the Supplier;

"Document"
includes all data exchange between the Supplier and the Federal Government Department User, which results in a Contract. Documents include, but are not limited to, the information in the PS Online, Requests for Proposals (RFPs), Statements of Work (SOWs), and any other authorized correspondence between the Supplier and the Federal Government Department User which is intended to form part of the Contract;

"General Conditions Professional Services Medium Complexity"
means General Conditions Professional Services Medium Complexity - 2010B, which are incorporated into the Contract between the Supplier and the Federal Government Departmental User.

"Inactive Account"
means supplier's information is invisible to Federal Government Department Users.

"Notice"
Any notice shall be in writing and may be delivered by courier, by registered mail, or by electronic mail (e-mail) that provides a paper record of the text of the notice, addressed to the party for whom it is intended. Any notice shall be deemed to be effective on the day it is received.

"Professional Services Online" or "Professional Services" or "PSO" or "PS"
means the e-procurement solution managed by PWGSC to assist Federal Government Department Users in acquiring professional services up to the NAFTA threshold;

"Operations Protocol"
means the technical procedures and rules, identified in the Operations Protocol, governing the requirements of documents and other communications between the parties via PS Online;

"Receiver"
in relation to a document means the party that receives it;

"Re-instatement"
means the process where the Supplier accesses or updates its information in the PS Online;

"Sender"
in relation to any document means the party that sends it;

"Statement of Work (SOW)"
means the functional or technical description of the whole of the activities, services, software, matters and things required to be delivered or performed by the Supplier in accordance with the terms of the Contract;

Supplemental General Conditions Professional Services Medium Complexity"
Software Development or Modification Services - 4002; Licensed Software - 4003; Maintenance and Support Services for Licensed Software - 4004; Contractor to Own Intellectual Property Rights in Foreground Information - 4006 and Canada to Own Intellectual Property Rights in Foreground Information - 4007, which are incorporated if applicable into the contract between the Supplier and the Federal Government Departmental User.

"Supplier's Information"
means the supplier's company and consultants profiles in the PS Online database;

1.02 Terms and Conditions of this TPA
It is understood that the terms and conditions of this TPA are NOT negotiable and that by signing the signature page, the Supplier accepts all terms and conditions of this TPA.

1.03 Headings
The division of this TPA into Articles and Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this TPA. References herein to Articles and Sections are to Articles and Sections of this TPA.

1.04 Extended Meanings
In this TPA, words importing the singular number only shall include the plural and vice versa, words importing the masculine gender shall include the feminine and neuter genders and vice versa and words importing persons shall include individuals, unincorporated organizations and corporations.

1.05 Related Documents/Information
The following documents and information form part of this TPA:

Operations Protocol for the Parties (Suppliers - The Minister, Federal Government Department Users)

Assessment Framework for the Parties (Suppliers and Federal Department Users)

Clause of General Conditions Professional Services Medium Complexity - 2010B; Software Development or Modification Services - 4002; Licensed Software - 4003; Maintenance and Support Services for Licensed Software - 4004; Contractor to Own Intellectual Property Rights in Foreground Information - 4006; and Canada to Own Intellectual Property Rights in Foreground Information - 4007.

PS Online - TPA Signature page

1.06 Amendments
The text of this TPA or of any Schedule may be amended by the Minister of Public Works and Government Services Canada (PWGSC) by posting a message in the "News Bulletins" on the web site, for a period of twenty-eight (28) calendar days prior to Implementation.

1.07 Applicable Law
This TPA and any contract resulting from the use of the PS Online shall be governed by and construed in accordance with the laws in force in the Province in which Canada's office issuing such documentation is situated and the Federal laws applicable therein.

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Article 2 - Equipment and News Bulletins

2.01 Equipment
Each party shall obtain, install and test, at its own expense, all the computer equipment, supporting equipment, software and services, including communications services that it will require in order to use the PS Online.

2.02 News Bulletins
Each party shall obtain all messages by accessing the News Bulletins on the web site.

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Article 3 - Reliability

3.01 Security
Each party shall undertake all commercially reasonable steps necessary to prevent unauthorized access to and use of any portion of the PS Online that is under its control. Each party shall comply with the procedures specified in the Operations Protocol.

3.02 Reasonable Testing
Upon receipt of a Document, the Receiver shall promptly review it and notify the Sender of any discrepancies.

3.03 Incomplete, Inaccurate or Corrupted Documents
If the Receiver of a document or other communication reasonably suspects that such document or communication is incomplete, inaccurate, corrupted in transmission, or not intended for the Receiver, the Receiver shall promptly notify the Sender and request clarification. The Receiver shall not otherwise act in reliance upon any such document, pending clarification by the Sender. When so notified, the Sender shall promptly re-send such document or take such other corrective actions as may reasonably be required in the circumstances. All communications initiated pursuant to this section are at the expense of the party sending the same.

3.04 Confidentiality
Each party acknowledges that documents may contain Confidential Information of the other party. Each party shall notify any personnel who may have access to documents of the confidential nature of such information and shall instruct such personnel to refrain from disclosing such information except in accordance with Access to Information and Privacy legislation and to the extent reasonably necessary to enable the performance of their duties and to undertake all reasonable steps necessary to preserve the confidentiality of Confidential Information of the other party including the exercise of not less than the same degree of discretion and precaution applicable with respect to the Confidential Information of the party by which they are engaged. To the extent that personal information of individuals, as defined in the Privacy Act, is posted on the PS Online, the Supplier shall obtain the written consent of the individual concerned prior to posting such information.

3.04.1 Promulgation of the TPA
The Supplier agrees by signing the signature page of this TPA that its name, the names of the individual(s) it proposes to perform the work, their per diem rates and individual skills sets, will be promulgated in the PS Online, and will be accessible to all Federal Government Department Users of these services. Canada cannot guarantee, and makes no representations or warranties, that other Suppliers will not be able to access such information.

3.05 Disaster Recovery
If the PS Online ceases to be available to the parties or ceases to be operational by reason of some failure of equipment or services, whether or not caused by a party or constituting force majeure as described in Section 5.02, each party will use its best efforts to continue normal communications between it and the other party by alternate means, and restore normal operating condition, as soon as reasonably practicable.

3.06 Certification of Accuracy
The Supplier hereby certifies that all information posted by it on the PS Online, including per diem rates, is correct and accurate. If this information is found by the Department of Public Works and Government Services (PWGSC) to be incorrect or inaccurate the Supplier will be suspended and or the Supplier's TPA will be set aside for default and the Supplier's information will be removed from the database by PWGSC, PS Online Team Leader.

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Article 4 - Contractual Matters

4.01 Contracts
The parties hereby express their mutual intention that contracts created using the PS Online are legally binding. However, for greater certainty, the obligations to give effect to each Contract shall for all purposes be deemed to be binding only upon the receipt of all documents constituting an offer and acceptance, in accordance with this Article. By acknowledging a document, a Receiver accepts and agrees to be bound by it or by its contents.

4.02 Terms and Conditions of Supplier's Offer and Resulting Contract
Each response submitted by the Supplier to a Request for Proposal and each contract between the Federal Government Department User and the Supplier shall incorporate and be subject to the provisions of this TPA as well as the applicable Terms and Conditions.

4.03 Enforceability
The parties agree that, as between them, each document that is received by the Receiver shall be deemed to constitute a memorandum in writing signed and delivered by or on behalf of the Sender thereof for the purposes of any statute or rule of law that requires a contract to be evidenced by a written memorandum or be in writing, or requires any such written memorandum to be signed and/or delivered. Each party acknowledges that in any legal proceedings between them respecting or in any way related to a contract it hereby expressly waives any right to raise any defense or waiver of liability based upon the absence of a memorandum in writing or of a signature.

4.04 Periodic Reports
The Supplier shall provide a Quarterly Usage Report to the PWGSC PS Online Representative, on a quarterly basis. The report should include the following information:

1. A list of all contracts issued under PS Online
2. For each contracts the following is to be provided:
   1. Department
   2. Region
   3. Contract Number
   4. Amendment Number (if applicable)
   5. Total value of the contract/amendment
   6. Name of the consultant
3. The total value of the contracts per department

Suppliers are to create their own form and submit the report no later than the dates identified below. Even a nil report is to be submitted.

The reporting periods are defined as:

January 01 and March 31 - deadline for the report is April 15; and
April 01 and June 30 - deadline for the report is July 15; and
July 01 and September 30 - deadline for the report is October 15; and
October 01 and December 31 - deadline for the report is January 15.

Failure to comply may result in the setting aside of the Supplier's TPA and the termination of the Supplier's account.

The quarterly report is to be submitted to Public Works and Government Services Canada at rcnspenligne.ncrpsonline@tpsgc-pwgsc.gc.ca.

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Article 5 - Liability

5.01 Consequential Damages
The parties acknowledge that the existence and use of the PS Online are for their mutual benefit. The information obtained by each about the affairs of the other by the negotiation and performance of this TPA shall not be used to impose liability for consequential damages or in any other way to increase the liability of either in the event of a failure to perform its obligations under a contract, beyond what it would have incurred for a breach of contract if the parties had never entered into this TPA.

5.02 Force Majeure
A party shall not be liable for any loss or damage suffered by the other caused by a failure to perform any duty imposed by this TPA where such failure is caused by an event, omission or condition not reasonably within the control of the defaulting party and which could not have been mitigated by the defaulting party.

5.03 Disclosure of Data or Information
Neither party shall be entitled to make claim against the other party for any damages or loss whatsoever if data belonging to a party is disclosed or released without the fault or neglect of the other party.

5.04 Applicable Laws to Data
Notwithstanding the location of the facilities or the mailboxes of either party, the laws in force in the Province in which Canada's office issuing such documentation is situated shall apply to the release, disclosure and control of data owned or transmitted by either party to this TPA.

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Article 6 – Supplier Information

It is the responsibility of the supplier to keep their firm's and consultants' information in the PS Online database up to date.

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Article 7 - Period of TPA, Termination, Setting Aside

7.01 Period of TPA
The period of this TPA shall commence on the date the signature page of the TPA is accepted by the Minister and shall continue in accordance to the terms of this TPA.

7.02 Termination by the Supplier
The Supplier may terminate this TPA at any time upon giving twenty-four (24) hours prior Notice to the Minister. Upon receipt of the Notice of termination, the Minister will delete all of the Supplier's information from the PS Online database. Should the Supplier terminate this TPA for any reason, it may not enter into a new TPA with the Minister for a period of ninety (90) calendar days from the date of termination of the previous TPA.

7.03 Termination by the Minister / Setting Aside the TPA
The Minister may terminate this TPA, upon issuance of Notice, in case of the supplier's failure to adhere to the terms of the TPA.

PWGSC will take the following steps as required before setting aside the TPA:

1. a notice will be sent to the Supplier stating the deficiencies and a specific period of time to correct the situation which will vary with the gravity of the deficiencies and the Supplier will be deactivated from the PS Online;
2. after this period, should the situation not be corrected to the satisfaction of PWGSC, the TPA will be set aside; and
3. when the TPA is set aside, after a six-month period and at the Supplier's written request, PWGSC may review the situation with a view to reactivate the Supplier's account.

7.04 Survival of Specified Sections
Sections 3.04 and 5.02 of this TPA shall survive the completion, expiry or termination or setting aside of this TPA and shall continue in full force and effect thereafter until such time as the parties mutually agree in writing to a full release of the obligations imposed by such provisions.

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Article 8 - Dispute Resolution

8.01 Disputes
All disputes of any nature arising out of or in connection with this TPA shall be subject to resolution pursuant to this Article.

8.02 Submission of Notice of Dispute
Any such dispute shall first be submitted by Notice to the Minister, who shall have fifteen (15) days to deliver a Notice of decision.

8.03 Other Remedies
If the decision of the Minister is unsatisfactory to the Supplier, the Supplier may then take such actions or proceedings as it considers appropriate, including, without limiting the foregoing, all suits, remedies, rights and entitlements, and, if mutually agreeable to the Parties, arbitration in accordance with the Commercial Arbitration Act, R.S.C. 1985, C.17 (2nd Supplement), that would otherwise have been immediately available to the Supplier but for this Article.

TPA Signature Page