form bps agreement 2014

AGREEMENT

Proprietary & Confidential. © 2014 BravoSolution, S.p.A. All Rights Reserved. 1

THIS AGREEMENT (the “Agreement”), made in triplicate, for electronic tendering services is effective as

of the [**insert start date for the Term**]

BETWEEN:

[ ]

(referred to as the “Customer”)

AND:

BravoSolution US, Inc.

(referred to as “BravoSolution”)

In consideration of their respective agreements set out below, the parties covenant and agree as follows:

ARTICLE I. INTERPRETATION AND GENERAL PROVISIONS

1.01 Defined Terms

When used in this Agreement, the following words or expressions have the following meanings:

“Bid Document” means a document in paper or electronic form provided by the Customer to

BravoSolution containing all information required by a Subscriber to prepare and submit either market

intelligence information or a proposal to the Customer for an intended procurement. A Bid Document in

electronic form shall be in formats to be agreed upon from time to time between BravoSolution and the

Customer;

“Bid Document Database” means that portion of BravoSolution’s system which collects, stores and

transmits documents submitted by Subscribers in response to a Bid Document;

“BravoSolution Address” means:

US Headquarters: 217 N. Jefferson Street, Suite 400, Chicago, IL, 60661

“BravoSolution Representative” means:

Dan Warn

Vice President

Mobile: +1 617-821-5768

Email: [email protected]

“BravoSolution’s Intellectual Property” means Intellectual Property owned by BravoSolution prior to its

performance under the Contract or created by BravoSolution during the Term of the Contract

independently of the performance of its obligations under the Contract, including any enhancements,

modifications or derivative works of such BravoSolution Intellectual Property;

“BravoSolution's Personnel” includes the directors, officers, employees, agents, partners, affiliates

volunteers or Subcontractors of BravoSolution;

“Business Day” means any working day, Monday to Friday inclusive, but excluding statutory and other


holidays, namely: New Year's Day; Family Day; Good Friday; Easter Monday; Victoria Day; Canada Day;

Civic Holiday; Labour Day; Thanksgiving Day; Remembrance Day; Christmas Day; Boxing Day and any

other day which the Customer has elected to be closed for business;

“Conflict of Interest” includes, but is not limited to, any situation or circumstance where:

(a) in relation to the RFP process, the proponent has an unfair advantage or engages in conduct,

directly or indirectly, that may give it an unfair advantage, including but not limited to (i) having or

having access to information in the preparation of its proposal that is confidential to the Customer

and not available to other proponents; (ii) communicating with any person with a view to

influencing preferred treatment in the RFP process including the giving of a benefit of any kind, by

or on behalf of BravoSolution to anyone employed by, or otherwise connected with, the Customer;

or (iii) engaging in conduct that compromises or could be seen to compromise the integrity of the

open and competitive RFP process and render that process non-competitive and unfair; or

(b) in relation to the performance of its contractual obligations in a Customer contract, BravoSolution’s

other commitments, relationships or financial interests (i) could or could be seen to exercise an

improper influence over the objective, unbiased and impartial exercise of its independent

judgement; or (ii) could or could be seen to compromise, impair or be incompatible with the

effective performance of its contractual obligations;

“Contract” means the aggregate of:

(a) this Agreement, including Schedule 1 (Schedule of Services, Deliverables, Rates and

Supplementary Provisions), Schedule 2 (Change Management), Schedule 3 (Rates) and any

other schedule attached at the time of execution;

(b) the RFP, including any addenda;

(c) the Proposal; and

(d) any amendments executed in accordance with the terms of this Agreement;

“Customer Address” means:

[*insert address for Customer*]

“Customer Confidential Information” means all information of the Customer that is of a confidential

nature, including all confidential information in the custody or control of the Customer, regardless of

whether it is identified as confidential or not, and whether recorded or not, and however fixed, stored,

expressed or embodied, which comes into the knowledge, possession or control of BravoSolution in

connection with this Agreement.

For greater certainty, Customer Confidential Information shall include:

(a) all new information derived at any time from any such information whether created by the

Customer, BravoSolution or any third-party;

(b) all information (including Personal Information) that the Customer is obliged, or has the discretion,


not to disclose under provincial or federal legislation or otherwise at law;

but exclude:

(c) information that: (i) is or becomes generally available to the public without fault or breach on the

part of BravoSolution of any duty of confidentiality owed by BravoSolution to the Customer or to

any third-party; (ii) BravoSolution can demonstrate to have been rightfully obtained by

BravoSolution, without any obligation of confidence, from a third-party who had the right to transfer

or disclose it to BravoSolution free of any obligation of confidence; (iii) BravoSolution can

demonstrate to have been rightfully known to or in the possession of BravoSolution at the time of

disclosure, free of any obligation of confidence when disclosed; or (iv) is independently developed

by BravoSolution; but the exclusions in this subparagraph shall in no way limit the meaning of

Personal Information or the obligations attaching thereto under the Contract or at law;

“Customer Representative” means:

[*insert address and insert name, title, telephone and facsimile number for Customer Representative, as

well as same information for back-up person if available** ]

“Database” means the collection of the Customer’s Opportunity Notices and Bid Documents in electronic

form maintained by BravoSolution in accordance with this Agreement for access by Subscribers;

“Deliverables” means everything developed for or provided to the Customer in the course of performing

under the Contract (but excluding the BravoSolution Intellectual Property) or agreed to be provided to the

Customer under the Contract by BravoSolution, as further defined, but not limited by, Schedule 1,

including but not limited to any goods or services or any and all Intellectual Property and any and all

concepts, techniques, ideas, information, documentation and other materials, however recorded,

developed or provided;

“Documentation” means standard manuals, data models, flow charts and other materials regarding the

use of the Services and the Deliverables and generally supplied by BravoSolution to its Customers,

whether in printed or electronic format, as well as complete or partial copies of the foregoing.

“Expiry Date” means [*insert date which is Effective Date plus 3 years] or, if the original term is

extended, the final date of the extended term;

“FIPPA” means the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as

amended;

“Fiscal Year” means the period running from April 1 in one calendar year to, and including, March 31 in

the next calendar year;

“GSIN” means the Goods and Services Identification Number;

“Included Procurements” means an intended procurement for which the Customer has elected to

provide information (including Information) to BravoSolution for inclusion in the Service;

“ID” means the identification code provided by BravoSolution to an authorized user, or Subscriber, to


allow use of the Database access service;

“Indemnified Parties” means the Customer and its directors, officers, advisors, agents, appointees and

employees;

“Industry Standards” include, but are not limited to (a) the provision of any and all labour, supplies,

equipment and other goods or services that are necessary and can reasonably be understood or inferred

to be included within the scope of the Contract or customarily furnished by Persons providing Services and

the Deliverables of the type provided hereunder in similar situations in Ontario and; (b) adherence to

commonly accepted norms of ethical business practices, which shall include BravoSolution establishing,

and ensuring adherence to, precautions to prevent its employees or agents from providing or offering gifts

or hospitality of greater than nominal value to any person acting on behalf of or employed by the

Customer;

“Information” means all the Customer’s information relating to an Included Procurement, including

Opportunity Notices and Bid Documents;

“Intellectual Property” means any intellectual, industrial or other proprietary right of any type in any form

protected or protectable under the laws of Canada, any foreign country, or any political subdivision of any

country, including, without limitation, any intellectual, industrial or proprietary rights protected or

protectable by legislation, by common law or at equity;

“License” means a non-exclusive and non-transferable license granted by the Customer to

BravoSolution, in accordance with Section 6.06 of this Agreement, to distribute the Information to the

Subscribers as contemplated by this Agreement, subject to all terms and conditions set out in this

Agreement;

“Losses” means liabilities, costs, damages and expenses (including legal, expert and consulting fees);

“Ministry” means HER MAJESTY THE QUEEN in right of Ontario as represented by the Minister of

Government Services.

“Newly Created Intellectual Property” means any Intellectual Property created by BravoSolution in the

course of performance of its obligations under the Contract;

“Notice or Solicitation Notice” includes, but is not limited to, notice of proposed procurement, notice of

planned procurement, letter of interest, request for proposal, request for quotation, request for tender,

request for information, price and availability notice, intention to directly award notice advance contract

award notice, contract award notice, general award notice, updates and amendments;

“Opportunity Notice” means a summary in paper or electronic form of the Information;

“Ontario Agreement” means the Agreement between BravoSolution and the Ministry dated as of

November 1, 2013;

“Person” if the context allows, includes any individuals, persons, firms, partnerships or corporations or

any combination thereof;


“Personal Information” has the same definition as in subsection 2 (1) of the Freedom of Information and

Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA);

“Proceeding” means any action, claim, demand, lawsuit, or other proceeding;

“Proposal” means all the documentation submitted by BravoSolution in response to the RFP;

“Rates” means the applicable price, in Canadian funds, to be charged for any additional services required

as a result of operation of the Change Management provisions which Rates shall not exceed the per diem

price quoted by BravoSolution in their proposal, as set out in Schedule 3, representing the full amount

chargeable by BravoSolution for the provision of any required additional Deliverables, including but not

limited to: (a) all applicable duties and taxes; (b) all labour and material costs; (c) all travel and carriage

costs; (d) all insurance costs; and (e) all other overhead including any fees or other charges required by

law;

“Record”, for the purposes of the Contract, means any recorded information, including any Personal

Information, in any form: (a) provided by the Customer to BravoSolution, or provided by BravoSolution to

the Customer, for the purposes of the Contract; or (b) created by BravoSolution in the performance of the

Contract;

“Requirements of Law” mean all applicable requirements, laws, statutes, codes, acts, ordinances,

orders, decrees, injunctions, by-laws, rules, regulations, official plans, permits, licences, authorisations,

directions, and agreements with all Authorities that now or at any time hereafter may be applicable to

either the Contract or the Services and the Deliverables or any part of them;

“RFP” means the Request for Proposals dated February 21, 2013 for the Supply and Delivery of

Electronic Tendering Services, reference number OSS-00377058 issued by HER MAJESTY THE

QUEEN in right of Ontario as represented by the Minister of Government Services for the Services and

the Deliverables and any addenda to it, but excluding Appendix A, Appendix I and Appendix L

“Services” means the BravoSolution eTendering Solution, including its modules, functions, and add-ins,

implemented as a Software-as- a-Service (SaaS), including a publicly-accessible Web Portal, that

facilitates Procurement specific notifications and communication to the Supplier community interested in

doing business with Customer and provides functionality for the development of Procurement documents

and facilitates the electronic Bid Submission from interested Suppliers.

“Subscriber” means a person (excluding an individual person), firm or organization of any nature

whatsoever that has entered into an agreement with BravoSolution to access Information, including a

person or other entity that orders documents through the Service on a one-time basis;

“Subscriber Information” means the information transmitted by a Subscriber via the Bid Document

Database;

“Subscriber Rates” means the applicable price, in Canadian funds, to be charged to the Subscribers for

the Subscriber services, as set out in Schedule 1, representing the full amount chargeable by

BravoSolution for the provision of the Subscriber Services;


“Term” means the period of time from the effective date first above written up to and including the earlier

of: (i) the Expiry Date or (ii) the date of termination of the Contract in accordance with its terms;

“Third-Party Intellectual Property” means any Intellectual Property owned by a party other than the

Customer or BravoSolution.

1.02 No Indemnities from Customer

Notwithstanding anything else in the Contract, any express or implied reference to the Customer

providing an indemnity or any other form of indebtedness or contingent liability that would directly or

indirectly increase the indebtedness or contingent liabilities of the Customer, whether at the time of

execution of this Agreement or at any time during the Term, shall be void and of no legal effect.

1.03 Entire Agreement

The Contract embodies the entire agreement between the parties with regard to the provision of Services

and the Deliverables and supersedes any prior understanding or agreement, collateral, oral or otherwise

with respect to the provision of the Services and the Deliverables, existing between the parties at the date

of execution of this Agreement.

1.04 Severability

If any term or condition of the Contract, or the application thereof to the parties or to any Persons or

circumstances, is to any extent invalid or unenforceable, the remainder of the Contract, and the

application of such term or condition to the parties, Persons or circumstances other than those to which it

is held invalid or unenforceable, shall not be affected thereby.

1.05 Interpretive Value of Contract Documents

In the event of a conflict or inconsistency in any provisions in the Contract: (a) the main body of this

Agreement shall govern over the Schedules to this Agreement; (b) this Agreement (including its

Schedules) shall govern over the RFP and the Proposal; and (c) the RFP shall govern over the Proposal.

1.06 Interpretive Value of Headings

The headings in the Contract are for convenience of reference only and in no manner modify, interpret or

construe the Contract.

1.07 Force Majeure

Neither party shall be liable for damages caused by delay or failure to perform its obligations under the

Contract where such delay or failure is caused by an event beyond its reasonable control. The parties

agree that an event shall not be considered beyond one’s reasonable control if a reasonable business

person applying due diligence in the same or similar circumstances under the same or similar obligations

as those contained in the Contract would have put in place contingency plans to either materially mitigate

or negate the effects of such event. Without limiting the generality of the foregoing, the parties agree that

force majeure events shall include natural disasters and acts of war, insurrection and terrorism but shall


not include shortages or delays relating to supplies or services. If a party seeks to excuse itself from its

obligations under this Contract due to a force majeure event, that party shall immediately notify the other

party of the delay or non-performance, the reason for such delay or non-performance and the anticipated

period of delay or non-performance. If the anticipated or actual delay or non-performance exceeds fifteen

(15) Business Days, the other party may immediately terminate the Contract by giving notice of

termination and such termination shall be in addition to the other rights and remedies of the terminating

party under the Contract, at law or in equity.

1.08 Notices by Prescribed Means

Notices shall be in writing and shall be delivered by postage-prepaid envelope, personal delivery or

facsimile and shall be addressed to, respectively, the Customer Address to the attention of the Customer

Representative and to BravoSolution Address to the attention of BravoSolution Representative. Notices

shall be deemed to have been given: (a) in the case of postage-prepaid envelope, five (5) Business Days

after such notice is mailed; or (b) in the case of personal delivery or facsimile one (1) Business Day after

such notice is received by the other party. In the event of a postal disruption, notices must be given by

personal delivery or by facsimile. Unless the parties expressly agree in writing to additional methods of

notice, notices may only be provided by the methods contemplated in this paragraph.

1.09 Governing Law

The Contract shall be governed by and construed in accordance with the laws of the Province of Ontario

and the federal laws of Canada applicable therein.

ARTICLE 2. NATURE OF RELATIONSHIP BETWEEN CUSTOMER AND BRAVOSOLUTION

2.01 BravoSolution’s Power to Contract

BravoSolution represents and warrants that it has the full right and power to enter into the Contract and

there is no agreement with any other Person that would in any way interfere with the rights of the

Customer under this Contract.

2.02 Representatives May Bind the Parties

The parties represent that their respective representatives have the authority to legally bind them to the

extent permissible by the Requirements of Law.

2.03 BravoSolution Not a Partner, Agent or Employee

BravoSolution shall have no power or authority to bind the Customer or to assume or create any obligation

or responsibility, express or implied, on behalf of the Customer. BravoSolution shall not hold itself out as

an agent, partner or employee of the Customer. Nothing in the Contract shall have the effect of creating

an employment, partnership or agency relationship between the Customer and BravoSolution (or any of

BravoSolution's directors, officers, employees, agents, partners, affiliates, volunteers or subcontractors) or


constitute an appointment under the Public Service of Ontario Act, 2006, S.O. 2006, Chapter 35, as

amended.

2.04 Responsibility of BravoSolution

BravoSolution agrees that it is liable for the acts and omissions of its directors, officers, employees,

agents, partners, affiliates, volunteers and subcontractors. This paragraph is in addition to any and all of

BravoSolution’s liabilities under the Contract and under the general application of law. BravoSolution shall

advise these individuals and entities of their obligations under the Contract and shall ensure their

compliance with the applicable terms of the Contract. In addition to any other liabilities of BravoSolution

pursuant to this Agreement or otherwise at law or in equity, BravoSolution shall be liable for all damages,

costs, expenses, losses, claims or actions arising from any breach of the Contract resulting from the

actions of the above mentioned individuals and entities This paragraph shall survive the termination or

expiry of this Contract.

2.05 No Subcontracting or Assignment

BravoSolution shall not subcontract or assign the whole or any part of the Contract or any monies due

under it without the prior written consent of the Customer. Such consent shall be in the sole discretion of

the Customer and subject to the terms and conditions that may be imposed by the Customer. Without

limiting the generality of the conditions which the Customer may require prior to consenting to

BravoSolution’s use of a subcontractor, every contract entered into by BravoSolution with a subcontractor

shall adopt all of the terms and conditions of this Contract as far as applicable to those parts of the

Services and the Deliverables provided by the subcontractor. Nothing contained in the Contract shall

create a contractual relationship between any subcontractor or its directors, officers, employees, agents,

partners, affiliates or volunteers and the Customer.

2.06 Duty to Disclose Change of Control

In the event that BravoSolution undergoes a change in control BravoSolution shall immediately disclose

such change in control to the Customer and shall comply with any terms and conditions subsequently

prescribed by the Customer resulting from the disclosure.

2.07 Conflict of Interest

BravoSolution shall: (a) avoid any Conflict of Interest in the performance of its contractual obligations; (b)

disclose to the Customer without delay any actual or potential Conflict of Interest that arises during the

performance of its contractual obligations; and (c) comply with any requirements prescribed by the

Customer to resolve any Conflict of Interest. In addition to all other contractual rights or rights available at

law or in equity, the Customer may immediately terminate the Contract upon giving notice to

BravoSolution where: (a) BravoSolution fails to disclose an actual or potential Conflict of Interest; (b)

BravoSolution fails to comply with any requirements prescribed by the Customer to resolve a Conflict of


Interest; or (c) BravoSolution’s Conflict of Interest cannot be resolved. This paragraph shall survive any

termination or expiry of the Contract.

2.08 Contract Binding

The Contract shall inure to the benefit of and be binding upon the parties and their successors, executors,

administrators and their permitted assigns.

ARTICLE 3. PERFORMANCE BY BRAVOSOLUTION AND INFORMATION MANAGEMENT

3.01 Commencement of Performance

BravoSolution shall commence performance upon receipt of written instructions from the Customer.

3.02 Performance Standards

BravoSolution shall meet all performance standards specified in this Agreement.

3.03 Performance Warranty

BravoSolution hereby represents and warrants that the Services and the Deliverables shall be provided

fully and diligently in a professional and competent manner by persons qualified and skilled in their

occupations and furthermore that all Services and the Deliverables will be provided in accordance with: (a)

the Contract; (b) Industry Standards; and (c) Requirements of Law. If any of the Services and the

Deliverables, in the opinion of the Customer, are inadequately provided or require corrections,

BravoSolution shall forthwith make the necessary corrections at its own expense as specified by the

Customer in a rectification notice.

3.04 Use and Access Restrictions

BravoSolution acknowledges that unless it obtains specific written preauthorization from the Customer,

any access to or use of Customer property, technology or information that is not necessary for the

performance of its contractual obligations with the Customer is strictly prohibited. BravoSolution further

acknowledges that the Customer may monitor BravoSolution to ensure compliance with this paragraph.

This paragraph is in addition to and shall not limit any other obligation or restriction placed upon

BravoSolution.

3.05 Notification by BravoSolution to Customer

During the Term, BravoSolution shall advise the Customer promptly of: (a) any contradictions,

discrepancies or errors found or noted in the Contract; (b) supplementary details, instructions or directions

that do not correspond with those contained in the Contract; and (c) any omissions or other faults that

become evident and should be corrected in order to provide the Services and the Deliverables in

accordance with the Contract and Requirements of Law.

3.06 Condonation Not a Waiver


Any failure by the Customer to insist in one or more instances upon strict performance by BravoSolution of

any of the terms or conditions of the Contract shall not be construed as a waiver by the Customer of its

right to require strict performance of any such terms or conditions, and the obligations of BravoSolution

with respect to such performance shall continue in full force and effect.

3.07 Changes By Written Amendment Only

Any changes to the Contract shall be by written amendment signed by the parties. No changes shall be

effective or shall be carried out in the absence of such an amendment.

3.08 BravoSolution to Comply With Reasonable Change Requests

The Customer may, in writing, request changes to the Contract, which may include altering, adding to, or

deleting any of the Services and the Deliverables. BravoSolution shall comply with all reasonable

Customer change requests and the performance of such request shall be in accordance with the terms

and conditions of the Contract as set out in Schedule 2 “Change Management”. If BravoSolution is unable

to comply with the change request, it shall promptly notify the Customer and provide reasons for such

non-compliance. In any event, any such change request shall not be effective until a written amendment

reflecting the parties have executed the change.

3.09 Non-Exclusive Contract, Work Volumes

BravoSolution acknowledges that it is providing the Services and the Deliverables to the Customer on a

non-exclusive basis. The Customer makes no representation regarding the volume of goods and services

required under the Contract. The Customer reserves the right to contract with other parties for the same

or similar goods and services as those provided by BravoSolution and reserves the right to obtain the

same or similar goods and services internally.

3.10 Performance by Specified Individuals Only

BravoSolution agrees that to the extent that specific individuals are named in the Contract as being

responsible for the provision of the Services and the Deliverables. only those individuals shall provide the

Services and the Deliverables under the Contract. BravoSolution shall not replace or substitute any of the

individuals named in the Contract without the prior written approval of the Customer, which may not

arbitrarily or unreasonably be withheld. Should BravoSolution require the substitution or replacement of

any of the individuals named in the Contract, it is understood and agreed that any proposed replacement

must possess similar or greater qualifications than the individual named in the Contract. BravoSolution

shall not claim fees for any replacement individual greater than the Rates established under the Contract.

3.11 Customer Rights and Remedies and BravoSolution Obligations Not Limited to Contract

The express rights and remedies of the Customer and obligations of BravoSolution set out in the Contract

are in addition to and shall not limit any other rights and remedies available to the Customer or any other

obligations of BravoSolution at law or in equity.


3.12 Publication

BravoSolution shall advertise, publish and distribute to Subscribers through the Service the Information

made available by the Customer to BravoSolution.

3.13 Distribution

BravoSolution shall not distribute the Information or any part thereof in any manner other than through the

Service, except with the prior written permission of the Customer.

3.14 Meetings

BravoSolution shall, at its expense, attend the schedule of meetings set out in the RFP with the Customer

in each year of this Agreement to review any aspect of this Agreement, the Services and the

Deliverables. These meetings shall be held at times and in locations in Toronto specified by the Customer

and agreed to by BravoSolution, acting reasonably.

3.15 Types of Information

The Customer shall make available to BravoSolution one of the following sets of Information for each

Included Procurement:

(a) An Opportunity Notice or Bid Document in electronic format; or

(b) A portion of an Opportunity Notice or a Bid Document in electronic format and related

specifications, drawings and other attachments in hard copy format; or

(c) An Opportunity Notice in electronic format and the related Bid Document in hard copy format.

3.16 Opportunity Notices

BravoSolution shall place the Opportunity Notice for the Bid Document on the Service in accordance with

the terms and conditions of this Agreement.

3.17 Accuracy of Information

The Customer acknowledges that BravoSolution assumes no responsibility or liability for the availability,

completeness, timeliness or accuracy of any of the Information, including where:

(a) The Information provided by BravoSolution to the Subscriber is, through the fault or error of the

Customer, (or otherwise incomplete, insufficient or untimely as a result of an act or omission by

the Customer) different or less complete than the Information provided by the Customer to

BravoSolution, and

(b) Delivery of the Information to the Subscriber is not made in a timely manner, except where the

problem is the direct result of the negligent or wilful acts or omissions of BravoSolution or that of its

employees or subcontractors.

3.18 Backup of Data


The Customer is responsible for maintaining adequate backup of its records and data to enable their

restoration if needed for any reason. If the Customer’s records or data in BravoSolution’s possession or

control are harmed by BravoSolution or a subcontractor’s negligence or wilful act, BravoSolution is

responsible, at its expense, for restoring the Customer’s records and data to the same state as in the last

available backup copy, within a timeframe mutually agreed upon between BravoSolution and the

Customer.

3.19 Data Transfer to the Alberta Purchasing Connection

BravoSolution agrees that it shall list Customer OPS tender abstract information on the Alberta

Purchasing Connection website (the “APC Website”) as further detailed in Schedule 3 to this Agreement

and in accordance with a separate agreement to provide such services.

(a) Further, BravoSolution shall also list Non-OPS Entity tender abstract information on the APC

website if requested to do so.

3.20 Subscriber Terms and Conditions

BravoSolution shall not amend the Subscriber terms and conditions for the Electronic Bidding Services,

without Customer consent, which shall not be withheld unreasonably. For the purpose of this provision,

the Subscriber Rates do not form part of the Subscriber terms and conditions.

ARTICLE 4. PAYMENT FOR PERFORMANCE AND AUDIT

4.01 Cost to Customer

BravoSolution shall provide all Services specified in the RFP at no cost to the Customer. If additional

services not captured by the definition of “Services” in the RFP are required they shall be payable by the

Customer in accordance with the process set out in the Change Management provisions of this

Agreement and at a Rate not to exceed the per diem amount submitted by BravoSolution in their

Proposal.

4.02 Cost to Subscribers

(a) All Subscribers in Canada shall be charged the same rates for the Service provided by

BravoSolution, regardless of the location of the Subscriber or originating point of access to the

Service. This provision includes, but is not limited to, communication charges, courier, and

telephone charges associated with the operation of the Service.

(b) Subscribers in Canada shall be charged in accordance with the rates detailed in Schedule 1 of

this Agreement.

(c) Subscribers outside Canada shall be charged rates that are consistent with the rates for services

provided by BravoSolution for Canadian Subscribers, plus an amount that reasonably reflects

increases in costs for delivering the services outside of Canada.

4.03 Table of Subscriber Rates


(a) Applicable rates payable by Subscribers for use of the Service are described in Schedule 1, of this

Agreement.

(b) The parties agree to establish a mutually agreeable periodic price review and revision process, in

accordance with (c) below, with respect to the Subscriber Rates set out in Schedule 1. No

Subscriber Rate increase made under any periodic review and revision process as established

shall be effective:

(i) Without a written amendment to this Agreement; and

(ii) Prior to the first Expiry Date of this Agreement;

(c) Subscribers Rates may be periodically increased by BravoSolution as follows:

(i) by an amount not to exceed 5% of the then applicable Subscriber Rate effective as of the

first day of the first optional term (years 4 and 5); and,

(ii) by an amount not to exceed 5% of the then applicable Subscriber Rate effective as of the

first day of the second optional term (years 6 and 7).

4.04 No Expenses or Additional Charges

There shall be no other charges payable by the Customer under the Contract to BravoSolution other than

the Rates established under the Contract.

4.05 Payment and Collection of Taxes and Duties

BravoSolution shall pay or charge and remit, as required, all applicable taxes, including excise taxes

incurred by or on BravoSolution's behalf with respect to the Contract.

4.06 Withholding Tax

The Customer shall withhold any applicable withholding tax from amounts due and owing to BravoSolution

under this Agreement and shall remit it to the appropriate government in accordance with applicable tax

laws. This paragraph shall survive any termination or expiry of the Contract.

4.07 Interest on Late Payment

If a payment is in arrears through no fault of BravoSolution, the interest charged by BravoSolution, if any,

for any late payment shall not exceed the pre-judgment interest rate established under section 127(2) of

the Courts of Justice Act, R.S.O. 1990, c. C45, in effect on the date that the payment went into arrears.

4.08 Document Retention and Audit

For seven (7) years after the Expiry Date or any date of termination of the Contract, BravoSolution shall

maintain all necessary records to substantiate (a) all charges and payments under the Contract and (b)

that the Services and the Deliverables were provided in accordance with the Contract and with

Requirements of Law. During the Term, and for seven (7) years after the Term, BravoSolution shall permit

and assist the Customer in conducting audits of the operations of BravoSolution to verify (a) and (b)

above. The Customer shall provide BravoSolution with at least ten (10) Business Days prior notice of its


requirement for such audit. BravoSolution’s obligations under this paragraph shall survive any termination

or expiry of the Contract.

4.09 Site Inspection

At any time during the term of this Agreement the Customer may request a site inspection with sufficient

lead time (at minimum one [1] month notice) by security and/or other specialists to audit the safe guards,

safe keeping and security of the Customer data. The Customer will be responsible for travel expenses as

applicable; any other expenses incurred to allow for a site inspection will be the responsibility of

BravoSolution.

ARTICLE 5. CONFIDENTIALITY AND FIPPA

5.01 Non-Disclosure

BravoSolution and the Customer shall not, at any time, disclose the Confidential Information to any person

or entity, other than for the purpose of performing the terms of this Agreement, and shall disclose such

Confidential Information only:

(a) To such employees, officers, directors, agents or consultants of that party who have a need to

know such Confidential Information to perform the terms of this Agreement;

(b) Where the prior written consent of the other party has been obtained; and

(c) Where ordered by a court of law or by the Information and Privacy Commissioner of Ontario.

5.02 Confidentiality and Promotion Restrictions

Any publicity or publications related to the Contract shall be at the sole discretion of the Customer. The

Customer may, in its sole discretion, acknowledge the Services and the Deliverables provided by

BravoSolution in any such publicity or publication. BravoSolution shall not make use of its association with

the Customer without the prior written consent of the Customer. Without limiting the generality of this

paragraph, BravoSolution shall not, among other things, at any time directly or indirectly communicate

with the media in relation to the Contract unless it has first obtained the express written authorization to do

so by the Customer.

5.03 Customer Confidential Information

During and following the Term, BravoSolution shall:

(a) keep all Customer Confidential Information confidential and secure;

(b) limit the disclosure of Customer Confidential Information to only those of its directors, officers,

employees, agents, partners, affiliates, volunteers or subcontractors who have a need to know it

for the purpose of providing the Services and the Deliverables and who have been specifically

authorized to have such disclosure;

(c) not directly or indirectly disclose, destroy, exploit or use any Customer Confidential Information

(except for the purpose of providing the Services and the Deliverables. or except if required by


order of a court or tribunal), without first obtaining: (i) the written consent of the Customer and (ii)

in respect of any Customer Confidential Information about any third-party, the written consent of

such third-party;

(d) provide Customer Confidential Information to the Customer on demand; and

(e) return all Customer Confidential Information to the Customer before the end of the Term, with no

copy or portion kept by BravoSolution.

5.04 Restrictions on Copying

BravoSolution shall not copy any Customer Confidential Information, in whole or in part, unless copying is

essential for the provision of the Services and the Deliverables. On each copy made by BravoSolution,

BravoSolution must reproduce all notices that appear on the original.

5.05 Injunctive and Other Relief

BravoSolution acknowledges that breach of any provisions of this Article may cause irreparable harm to

the Customer or to any third-party to whom the Customer owes a duty of confidence, and that the injury to

the Customer or to any third- party may be difficult to calculate and inadequately compensable in

damages. BravoSolution agrees that the Customer is entitled to obtain injunctive relief (without proving

any damage sustained by it or by any third-party) or any other remedy against any actual or potential

breach of the provisions of this Article.

5.06 Notice and Protective Order

If BravoSolution or any of its of its directors, officers, employees, agents, partners, affiliates, volunteers or

subcontractors become legally compelled to disclose any Customer Confidential Information,

BravoSolution will provide the Customer with prompt notice to that effect in order to allow the Customer to

seek one or more protective orders or other appropriate remedies to prevent or limit such disclosure, and

it shall co-operate with the Customer and its legal counsel to the fullest extent. If such protective orders or

other remedies are not obtained, BravoSolution will disclose only that portion of Customer Confidential

Information which BravoSolution is legally compelled to disclose, only to such person or persons to which

BravoSolution is legally compelled to disclose, and BravoSolution shall provide notice to each such

recipient (in co-operation with legal counsel for the Customer) that such Customer Confidential

Information is confidential and subject to non-disclosure on terms and conditions equal to those contained

in this Agreement and, if possible, shall obtain each recipient's written agreement to receive and use such

Customer Confidential Information subject to those terms and conditions.

5.07 FIPPA Records and Compliance

BravoSolution and the Customer acknowledge and agree that FIPPA applies to and governs all Records

and may require the disclosure of such Records to third parties. Furthermore, BravoSolution agrees:

(a) to keep Records secure;


(b) to provide Records to the Customer within seven (7) calendar days of being directed to do so by

the Customer for any reason including an access request or privacy issue;

(c) not to access any Personal Information unless the Customer determines, in its sole discretion,

that access is permitted under FIPPA and is necessary in order to provide the Services and the

Deliverables;

(d) not to directly or indirectly use, collect, disclose or destroy any Personal Information for any

purposes that are not authorized by the Customer;

(e) to ensure the security and integrity of Personal Information and keep it in a physically secure and

separate location safe from loss, alteration, destruction or intermingling with other records and

databases and to implement, use and maintain the most appropriate products, tools, measures

and procedures to do so;

(f) to restrict access to Personal Information to those of its directors, officers, employees, agents,

partners, affiliates, volunteers or subcontractors who have a need to know it for the purpose of

providing the Services and the Deliverables and who have been specifically authorized by the

Customer Representative to have such access for the purpose of providing the Services and the

Deliverables;

(g) to implement other specific security measures that in the reasonable opinion of the Customer

would improve the adequacy and effectiveness of BravoSolution's measures to ensure the

security and integrity of Personal Information and Records generally; and

(h) that any confidential information supplied to the Customer may be disclosed by the Customer

where it is obligated to do so under FIPPA, by an order of a court or tribunal or pursuant to a legal

proceeding;

and the provisions of this paragraph shall prevail over any inconsistent provisions in the Contract.

5.08 Bid Document Database

BravoSolution shall at all times during the term of this Agreement maintain an operating environment for

the Bid Document Database consistent with the availability and requirements for the service as set out in

the Ontario Agreement, and shall adhere to all policies, procedures and specifications relating to

maintenance of the equipment used in support of the Bid Document Database.

5.09 Personal Information

The parties acknowledge that BravoSolution will, for the purposes contemplated in this Agreement, have

access to or come into the possession of Personal Information.

5.10 Handling of Personal Information

Where the Bid Document Database contains any Personal Information for any time period, BravoSolution

shall comply with the Customer instructions regarding its handling and shall retain the Personal

Information only for the period authorized. If, at the end of the period of retention authorized,


BravoSolution has not received any instructions from the Customer, BravoSolution shall request

instructions from the Customer regarding the future retention or disposal of the Personal Information.

5.11 Ownership of Personal Information

The Personal Information or Subscriber Information that is provided to BravoSolution pursuant to this

Agreement by the Customer or the Subscribers shall remain at all times the sole and exclusive property of

the Customer or the Subscribers, as the case may be.

5.12 Return of Information

The Customer may at any time during the term of this Agreement and within six (6) months after the expiry

or termination of this Agreement require BravoSolution to return, retain or dispose of the Personal

Information or Subscriber Information in accordance with written instructions given by the Customer to

BravoSolution, and BravoSolution shall comply with any such instructions.

5.13 Access to Bid Document Database

The Bid Document Database will be kept by BravoSolution in a physically secure location and

BravoSolution will ensure that the access to the Bid Document Database is restricted to employees of

BravoSolution who have been specifically authorized to have such access.

5.14 Security of Bid Document Database

BravoSolution shall implement and maintain measures to ensure the security and integrity of the Bid

Document Database to protect it against loss, alteration and destruction, and against access by

unauthorized persons, by selecting and maintaining the most appropriate products, tools and procedures.

BravoSolution shall, immediately upon discovery, make a report to the Customer setting out full details of

any security lapse or unintentional access to the Database, Bid Document Database or any other

Customer Confidential Information in the possession of BravoSolution

5.15 Disclosure of Information

BravoSolution shall not either directly or indirectly use, disclose or in any way refer to the information in the

Bid Document Database or any portions thereof except where necessary for the performance by

BravoSolution of the services under this Agreement, or where the Customer has given its prior written

consent. In such case the Customer's consent will identify the particular information to be used, disclosed

or referred to.

5.16 Use of Information

BravoSolution shall not develop or derive for any purpose whatsoever any product, in any form

whatsoever that incorporates, modifies or uses in any manner any of the Personal Information or

Subscriber Information in the Bid Document Database.

5.17 Interruption of Service


If any unscheduled interruption of the Bid Document Database occurs, BravoSolution shall expeditiously

repair or replace such Bid Document Database. BravoSolution shall forthwith provide the Customer with

notice of any unscheduled interruption lasting for more than 24 hours and with notice of the successful

repair or replacement and restoration of the Bid Document Database.

5.18 Modification of Service

BravoSolution shall provide the Customer with at least 90 days’ notice of any proposed modification to the

configuration of the Bid Document Database. The Customer may object to such a proposed modification if

it would adversely affect the Customer. If BravoSolution proceeds with the proposed modification despite

the Customer's objection, the Customer may terminate this Agreement in whole or in part.

5.19 Survival

The provisions of this Article shall survive any termination or expiry of the Contract.

ARTICLE 6. INTELLECTUAL PROPERTY

6.01 Customer Intellectual Property

BravoSolution agrees that all Customer Intellectual Property and every other right, title and interest in and

to all concepts, techniques, ideas, information and materials, however recorded, (including images and

data) provided by the Customer to BravoSolution shall remain the sole property of the Customer at all

times.

6.02 Newly Created Intellectual Property

BravoSolution shall be the sole owner of any Newly Created Intellectual Property.

6.03 BravoSolution Intellectual Property

Subject to Section 6.04, the Customer agrees that all Intellectual Property and every other right, title and

interest in and to all concepts, techniques, ideas, information and materials, however recorded, (including

images and data) provided by BravoSolution to the Customer that is not: (i) Customer Intellectual Property;

or, (ii) Third Party Intellectual Property shall remain the sole property of BravoSolution at all times.

6.04 Presumption Governing Intellectual Property Ownership

If BravoSolution’s Intellectual Property or Third Party Intellectual Property forms any part of the Services

and the Deliverables. BravoSolution shall notify the Customer of such prior to the delivery of the particular

Deliverable containing any such BravoSolution Intellectual Property or Third Party Intellectual Property. In

the absence of any such notice, the presumption governing the Contract shall be that the Customer is the

sole owner of any Intellectual Property in any form contained in any of the Services and the Deliverables.

6.05 BravoSolution’s Grant of Licence

To the extent that the Services and the Deliverables contain, in whole in part, BravoSolution Intellectual

Property, Newly Created Intellectual Property or Third Party Intellectual Property, and subject to all of the


terms and conditions of this Agreement, BravoSolution grants to Customer a limited term, worldwide, non-

exclusive, non-transferable, license (i) to access, use, display and perform the Services and the

Deliverables in object code form solely in accordance with the Documentation; (ii) for any web based

functionality provided within the Services and the Deliverables. to allow authorized participants to use the

Services and the Deliverables for the purpose of accessing and using the Services and the Deliverables

via a standard Internet Explorer web browser in the manner and to the extent provided for by the

Documentation; and (iii) to use the Documentation solely for the purposes of supporting Customer's use

of the Services and the Deliverables in accordance with the terms of the Documentation. This is a license

agreement and not an agreement for sale. All rights not specifically granted shall be reserved to

BravoSolution.

6.06 Customer’s Grant of License

(a) The Customer hereby grants to BravoSolution, subject to all the terms and conditions set out in

this Agreement, a License, to the Information as contemplated by this Agreement.

(b) The terms of the License shall commence on the effective date of this Agreement, and shall

terminate on the earlier of the date of expiry of this Agreement, or until this Agreement or the

License is otherwise terminated.

(c) The Customer undertakes to provide BravoSolution with the Information subject to the License.

BravoSolution is under no obligation to make available to the Subscribers any data, which has not

been provided to it by the Customer.

(d) The primary source of revenue (but not sole or exclusive source) to BravoSolution will be derived

through the sale of subscriptions to obtain Bid Documents electronically at no additional charge.

(e) BravoSolution has the right to enter into partnerships or alliances with other service providers for

the provision of the Service, but is solely responsible to the Customer for meeting all performance,

security, privacy and other requirements in this Agreement.

6.07 No Restrictive Material in Services and the Deliverables

BravoSolution shall not incorporate into any Services and the Deliverables anything that would restrict the

right of the Customer to modify, further develop or otherwise use the Services and the Deliverables in any

way that the Customer deems necessary, or that would prevent the Customer from entering into any

contract with any contractor other than BravoSolution for the modification, further development of or other

use of the Services and the Deliverables.

6.08 BravoSolution Representation and Warranty Regarding Third-Party Intellectual Property

BravoSolution represents and warrants that the provision of the Services and the Deliverables shall not

infringe or induce the infringement of any Third-Party Intellectual Property rights. BravoSolution further

represents and warrants that it has obtained assurances with respect to any BravoSolution Intellectual


Property and Third-Party Intellectual Property that any rights of integrity or any other moral rights

associated therewith have been waived.

6.09 Assurances Regarding Moral Rights

At the request of the Customer, at any time or from time to time, BravoSolution shall execute and agrees

to cause BravoSolution’s Personnel to execute an irrevocable written waiver of any moral rights or other

rights of integrity in the applicable Deliverable(s) in favour of the Customer, such waiver to be in a form

acceptable to the Customer, and which waiver may be invoked without restriction by any person

authorized by the Customer to use the Services and the Deliverables. BravoSolution shall deliver such

written waiver(s) to the Customer within ten (10) Business Days of the receipt of the request from the

Customer.

6.10 Copyright Notice

BravoSolution shall place a copyright notice on all recorded Deliverables it provides to the Customer under

the Contract in the following form:

“© [Customer legal name], [insert year of publication]”

6.11 Further Assurances Regarding Copyright

At the request of the Customer, at any time or from time to time, BravoSolution shall execute and agrees

to cause BravoSolution’s Personnel to execute a written assignment of copyright in the applicable

Deliverable(s) to the Customer in a form acceptable to the Customer. BravoSolution shall deliver such

written assignment(s) to the Customer within ten (10) Business Days of the receipt of the request from the

Customer. BravoSolution shall assist the Customer in preparing any Canadian copyright registration that

the Customer considers appropriate. BravoSolution will obtain or execute any other document reasonably

required by the Customer to protect the Intellectual Property of the Customer.

6.12 No Use of Customer Insignia

BravoSolution shall not use any insignia or logo of the Customer except where required to provide the

Services and the Deliverables, and only if it has received the prior written permission of the Customer to

do so.

6.13 Customer May Prescribe Further Compliance

The Customer reserves the right to prescribe the specific manner in which BravoSolution shall perform its

obligations relating to this Article.

6.14 Survival

The obligations contained in this Article shall survive the termination or expiry of the Contract.

ARTICLE 7. INDEMNITY AND INSURANCE

7.01 BravoSolution Indemnity


BravoSolution shall indemnify and hold harmless the Indemnified Parties from and against all Losses and

Proceedings, by whomever made, sustained, incurred, brought or prosecuted, arising out of, or in

connection with anything done or omitted to be done by BravoSolution or BravoSolution’s Personnel in the

course of the performance of BravoSolution’s obligations under the Contract or otherwise in connection

the Contract. The obligations contained in this section shall survive the termination or expiry of this

Agreement.

7.02 BravoSolution’s Insurance

BravoSolution hereby agrees to put in effect and maintain insurance for the Term, at its own cost and

expense, with insurers having a secure A.M. Best rating of B + or greater, or the equivalent, all the

necessary and appropriate insurance that a prudent person in the business of BravoSolution would

maintain including, but not limited to, the following:

(a) commercial general liability insurance on an occurrence basis for third party bodily injury, personal

injury and property damage, to an inclusive limit of not less than Two Million Dollars

($2,000,000.00) per occurrence, One Million Dollars ($1,000,000.00) products and completed

operations aggregate. The policy is to include the following:

(i) the Indemnified Parties as additional insureds with respect to liability arising in the course

of performance of BravoSolution’s obligations under, or otherwise in connection with, the

Contract; contractual liability coverage;

(ii) cross-liability clause;

(iii) employers liability coverage (or compliance with the section below entitled “Proof of

W.S.I.A. Coverage” is required);

(iv) tenants 30 day written notice of cancellation, termination or material change;

(v) legal liability coverage (if applicable and with applicable sub-limits); and,

(vi) non-owned automobile coverage with blanket contractual coverage for hired automobiles;

and,

(b) errors & omissions liability insurance, insuring liability for errors and omissions in the performance

or failure to perform the services contemplated in the Contract, in the amount of not less than

Three Million Dollars ($3,000,000.00) per claim and in the annual aggregate.

7.03 Proof of Insurance

BravoSolution shall provide the Customer with certificates of insurance or other proof as may be requested

by the Customer, that confirms the insurance coverage as provided for in Section 7.02, and renewal

replacements on or before the expiry of any such insurance. Upon the request of the Customer, a copy of

each insurance policy shall be made available to it. BravoSolution shall ensure that each of its

Subcontractors obtains all the necessary and appropriate insurance that a prudent person in the business

of the Subcontractor would maintain and that the Indemnified Parties are named as additional insureds


with respect to any liability arising in the course of performance of the Subcontractor's obligations under

the subcontract for the provision of the Services and the Deliverables.

7.04 Proof of W.S.I.A. Coverage

If BravoSolution is subject to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule

A (“WSIA”), it shall submit a valid clearance certificate of WSIA coverage to the Customer prior to the

execution of this Agreement by the Customer. In addition, BravoSolution shall, from time to time at the

request of the Customer, provide additional WSIA clearance certificates. BravoSolution covenants and

agrees to pay when due, and to ensure that each of its Subcontractors pays when due, all amounts

required to be paid by it/its Subcontractors, from time to time during the Term, under the WSIA, failing

which the Customer shall have the right, in addition to and not in substitution for any other right it may

have pursuant to the Contract or otherwise at law or in equity, to pay to the Workplace Safety and

Insurance Board any amount due pursuant to the WSIA and unpaid by BravoSolution or its

Subcontractors and to deduct such amount from any amount due and owing from time to time to

BravoSolution pursuant to the Contract together with all costs incurred by the Customer in connection

therewith.

7.05 BravoSolution Participation in Proceedings

BravoSolution shall, at its expense, to the extent requested by the Customer, participate in or conduct the

defence of any Proceeding against any Indemnified Parties referred to in this Article and any negotiations

for their settlement. The Customer may elect to participate in or conduct the defence of any such

Proceeding by notifying BravoSolution in writing of such election without prejudice to any other rights or

remedies of the Customer under the Contract, Agreement, at law or in equity. Each party participating in

the defence shall do so by actively participating with the other’s counsel. BravoSolution shall not enter into

any settlement unless it has obtained the prior written approval of the Customer. If BravoSolution is

requested by the Customer to participate in or conduct the defence of any such Proceeding, the Customer

agrees to co-operate with and assist BravoSolution to the fullest extent possible in the Proceedings and

any related settlement negotiations. If the Customer conducts the defence of any such Proceedings,

BravoSolution agrees to co- operate with and assist the Customer to the fullest extent possible in the

Proceedings and any related settlement negotiations. This section shall survive any termination or expiry

of the Contract.

ARTICLE 8. TRANSITION PERIOD, TERMINATION, EXPIRY AND EXTENSION

8.01 Provision of Information to Customer

Three (3) months prior to the expiry of this Agreement, BravoSolution will turn over to the Customer copies

of the Subscriber Database, the Database and functional specifications and user documentation for the

Service, as well (where applicable) a copy of all program enhancements paid for by the Customer that

have been made to the components described in this Agreement. The Customer will use the copy of the


Subscriber Database only for the purpose of effecting an orderly transition of the Service to a new

contractor or successor service (including in-house to the Customer) with similar purposes.

8.02 Destruction of Information

BravoSolution will erase or otherwise destroy (where applicable) all other copies of the Database, and

program enhancements paid for by the Customer, in its possession within three (3) months following the

expiry or termination of this Agreement, and BravoSolution will deliver a certified statement of destruction

to the Customer within this same time period.

8.03 Cooperation with Subsequent Vendor

BravoSolution will, at its own expense, cooperate with the Customer and any new contractor to ensure an

orderly transition of the operation to the new environment, including, but not limited to: providing

instruction on the operation of the Service to the new contractor; turning over copies of the Subscriber

Database three (3) months in advance, in a mutually agreeable format on mutually agreeable media; and

advertising the change of service on the Service and in any BravoSolution newsletter or promotional

material.

8.04 Refund of Subscription Monies

BravoSolution will refund to or otherwise credit to the benefit of Subscribers any prepaid subscriptions or

Subscriber deposits applicable to any period of time following the expiry or termination of this Agreement,

within sixty (60) days following the expiry or termination of this Agreement. BravoSolution will send an

explanatory letter to Subscribers describing the refund or credit process at least one (1) month prior to this

Agreement expiry date.

8.05 Representation and Warranty

BravoSolution represents and warrants that it has the full authority and ability to meet its obligations

related to transition as set out in this Article.

8.06 Immediate Termination of Contract

The Customer may immediately terminate the Contract upon giving notice to BravoSolution where:

(a) BravoSolution is adjudged bankrupt, makes a general assignment for the benefit of its creditors or

a receiver is appointed on account of BravoSolution’s insolvency;

(b) BravoSolution breaches any provision in Article 6 (Confidentiality and FIPPA) of this Agreement;

(c) BravoSolution breaches the Conflict of Interest paragraph in Article 2 (Nature of Relationship

Between Customer and BravoSolution) of this Agreement;

(d) BravoSolution, prior to or after executing this Agreement, makes a material misrepresentation or

omission or provides materially inaccurate information to the Customer;

(e) BravoSolution undergoes a change in control which adversely affects BravoSolution’s ability to

satisfy some or all of its obligations under the Contract;


(f) BravoSolution subcontracts for the provision of part or all of the Services and the Deliverables or

assigns the Contract without first obtaining the written approval of the Customer; or

(g) BravoSolution’s acts or omissions constitute a substantial failure of performance;

and the above rights of termination are in addition to all other rights of termination available at law, or

events of termination by operation of law.

8.07 Dispute Resolution by Rectification Notice

Subject to the above paragraph, where BravoSolution fails to comply with any of its obligations under the

Contract, the Customer may issue a rectification notice to BravoSolution setting out the manner and time

frame for rectification. Within seven (7) Business Days of receipt of that notice, BravoSolution shall either:

(a) comply with that rectification notice; or

(b) provide a rectification plan satisfactory to the Customer. If BravoSolution fails to either comply with

that rectification notice or provide a satisfactory rectification plan, the Customer may immediately

terminate the Contract. Where BravoSolution has been given a prior rectification notice, the same

subsequent type of non-compliance by BravoSolution shall allow the Customer to immediately terminate

the Contract.

8.08 Termination on Notice

The Customer reserves the right to terminate the Contract, without cause, upon sixty (60) calendar days

prior notice to BravoSolution.

8.09 BravoSolution’s Obligations on Termination.

On termination of the Contract, BravoSolution shall, in addition to its other obligations under the Contract

and at law:

(a) at the request of the Customer, provide the Customer with any completed or partially completed

Deliverables;

(b) provide the Customer with a report detailing: (i) the current state of the provision of Deliverables by

BravoSolution at the date of termination; and (ii) any other information requested by the Customer

pertaining to the provision of the Deliverables and performance of the Contract;

(c) execute such documentation as may be required by the Customer to give effect to the termination

of the Contract; and

(d) comply with any other instructions provided by the Customer, including but not limited to

instructions for facilitating the transfer of its obligations to another Person.

This paragraph shall survive any termination of the Contract.

8.10 BravoSolution’s Payment Upon Termination

On termination of the Contract, the Customer shall only be responsible for the payment of the Services

and the Deliverables provided under the Contract up to and including the effective date of any termination.


Termination shall not relieve BravoSolution of its warranties and other responsibilities relating to the

Services and the Deliverables performed or money paid. In addition to its other rights of hold back or set

off, the Customer may hold back payment or set off against any payments owed if BravoSolution fails to

comply with its obligations on termination.

8.11 Termination in Addition to Other Rights

The express rights of termination in this Agreement are in addition to and shall in no way limit any rights or

remedies of the Customer under the Contract, at law or in equity.

8.12 Expiry and Extension of Contract

The Contract shall expire on the original Expiry Date, unless the Customer exercises its option to extend

the Contract for two (2) additional periods of up to two (2) years each, such extensions to be upon the

same terms (including the Rates in effect at the time of extension), conditions and covenants contained in

the Contract, excepting the option to renew. The options shall be exercisable by the Customer giving

notice to BravoSolution not less than thirty (30) days prior to the original Expiry Date or the Expiry date as

extended by exercise of the optional periods above. The notice shall set forth the precise duration of the

extension.


IN WITNESS WHEREOF the parties hereto have executed this Agreement effective as of the date first

above written.

[Customer]

By:

Name:

Title:

Date:

BRAVOSOLUTION US, INC.

By:

Name:

Title:

Date:

Schedule 1 - Schedule of Deliverables, Rates, Subscriber Rates and Supplementary Provisions


A. DESCRIPTION OF SERVICES AND THE DELIVERABLES

A.1 Project Objective

A.2 Background

A.3 Services

A.4 Deliverables

A.5 Schedule or Time Lines or Milestones

A.6 Reporting Requirements

B. RATES AND DISBURSEMENTS

C. BILLING STATEMENTS

Schedule 2 - Change Management


A. Changes to Scope of Work

A.1 The Ministry has detailed the requirements for the eTendering Solution within the RFP as captured

within the definition of “Services” and the Deliverables to be provided by BravoSolution under the

resulting Ontario Agreement. However, there may be a necessity for changes or additions to the

Services and the Deliverables procured through this Agreement. During the Term of this Agreement

and any extensions, if a Customer initiated change is required the Customer will issue a Change

Request to BravoSolution.

A.2 BravoSolution will be required to provide, including, but not limited to, additional computer resources

and/or person-based services to support the implementation and ongoing maintenance of any such

changes. Where the Customer requests a change to expand the Service, the Customer will either pay

BravoSolution or will allow BravoSolution to price and sell the additional services to Subscribers as a

separate option.

A.3 Where a Customer change request includes an increase in the scope of the previously contemplated

Services and the Deliverables not within the definition of Services under the RFP, the Customer shall

set out, in its change request, the proposed prices for the contemplated changes. Where the Rates in

effect at the time of the change request:

(a) include pricing for the particular type of goods or services contemplated in the change request,

BravoSolution shall not unreasonably refuse to provide those goods or services at prices consistent

with those Rates; or

(b) are silent to the applicable price for the particular goods or services contemplated in the change

request, the price shall be set at an amount not to exceed the per diem Rate set out in

BravoSolution’s Proposal;

and in any event, such change request shall not become effective until a written amendment reflecting

the parties have executed the change.

A.4 Any such changes, charges therefore, and the schedule for completion thereof, shall be negotiated on

the basis of additional work to be undertaken by BravoSolution in terms of incremental personnel

requirements and disk storage/updating requirements. The rates to form the basis of any such

negotiations shall be in accordance with the average industry rates in Canada in effect at the time of

negotiations, negotiated with the Customer. A written amendment to this Agreement signed by the

parties will be required to authorize such additional work. BravoSolution will advise the Customer of

proposed changes to be offered to Subscribers prior to implementation.

A.5 In the event that BravoSolution receives compensation of any kind from any other Canadian federal,

provincial or territorial government for the provision of changes in the functionality of the Service, such

changes shall be made available to the Customer, within a mutually agreeable timeframe. Subject to

the approval of the Customer, such changes shall be incorporated into this Agreement by an

amendment in writing signed by both parties.

A.6 Where the Customer requests changes to the scope of the services provided under the Service and

such changes increase the cost to BravoSolution of operating the Service, then BravoSolution shall be

entitled to negotiate with the Customer in advance of implementing such changes regarding the

recovery by BravoSolution of such increased costs from the Subscribers and/or the Customer.


A.7 BravoSolution will provide a test facility for the Customer that permits end-to-end testing and shall

participate in testing with the Customer when either BravoSolution or the Customer changes its

environment. BravoSolution will facilitate up to two (2) test cycles per day for planned environment

upgrades. BravoSolution will facilitate up to five

A.8 (5) test cycles each day when it is necessary to resolve interface (service) problems. This standard will

be met at least 98% of the time over any four (4) week period.

A.9 BravoSolution will provide a change management system to establish control, including time

guidelines, over the delivery of system enhancements identified by the Customer.

A.10 A facility will be provided to enable the Customer to login suggested enhancements (such log-ins

to be referred to as a heat ticket).

A.11 A change management process will be made available to the Customer.

A.12 BravoSolution shall allow the Customer access to BravoSolution’ s records during the Term in

respect of any changes to the Service pursuant to Section 1.1 for the Customer to satisfy in

accordance with the particular changes as requested by the Customer. It is agreed that the Customer

shall provide BravoSolution with five (5) Business Days’ prior notice of its requirement for such access.

BravoSolution shall promptly provide, at the sole expense of the Customer, a certified copy of any part

of BravoSolution’s records in respect of the changes requested by the Customer.

A.13 The Customer shall own property to any goods acquired and paid for by the Customer in

accordance with this Agreement, including intellectual property rights therein.

A.14 No change shall be effective against either party until it forms a mutually executed written

amendment to this Agreement.

Schedule 3 - Rates


Years 1 - 3 (Fixed Rates) Fees

Unit Download Documents Download Fees HST

Electronic Bid Submission E-bidding Fees HST

Per Supplier

Fee per Procurement Opportunity $0.00 $0.00 Fee per Electronic Bid Submission $300.00 $39.00

Yearly Subscription Fee (unlimited document downloads for all

Ontario public sector buying organizations)

$0.00 $0.00 E-Bid Yearly Subscription Fee

(unlimited document downloads for each Ontario public sector buying organizations)

$750.00 $97.50

Yearly Subscription Fee for each Additional User

(unlimited document downloads for all Ontario public sector buying

organizations)

$0.00 $0.00

Optional Terms Price Escalation

Years 4 and 5 Years 6 and 7

Percentage (%) increase from Years 1 - 3 fixed rates identified above 5.00%

Percentage (%) increase from Years

4 and 5 rates 5.00%

Change Requests

In the event the MinistryCustomer initiates a Change Request during the Term of this Agreement, the VendorBravoSolution will charge a blended per diem rate which that shall include the cost of all necessary roles and/or resources needed to complete the Request. Proponents should provided per diem rates below. refer to Section 2.xx Change Management when completing this section.

Contract Term Blended per diem rates HST

Years 1 - 3 (Initial Contract Term) $2,000.00 $260.00

Years 4 and 5 (First Optional Term) $2,100.00 $273.00

Years 6 and 7

(Second Optional Term)

$2,200.00 $286.00

Sum of Blended Rates (for evaluation purposes)

$6,300.00

Filename: FORM BPS Agreement 2014 Directory: C:\Users\u958duffy\Documents\00. Projects\000. Account

Management\Agreements\New BPS Agreements Template: C:\Users\u958duffy\AppData\Roaming\Microsoft\Templates\Normal.dotm Title: Form of Agreement Subject: Author: Christopher G. Kuhn Keywords: Comments: Creation Date: 10/6/2014 10:23:00 AM Change Number: 4 Last Saved On: 10/6/2014 10:34:00 AM Last Saved By: Chris Kuhn Total Editing Time: 3 Minutes Last Printed On: 10/10/2014 9:27:00 AM As of Last Complete Printing Number of Pages: 30 Number of Words: 10,877 (approx.) Number of Characters: 62,000 (approx.)