Master Services Terms

This Agreement is between Insurance Corporation of British Columbia (“ICBC”) and the supplier named in a SOW (“Supplier”) and governs the provision of Services by Supplier to ICBC. By entering into a SOW that incorporates this Agreement, Supplier and ICBC accept and agree to the terms of this Agreement.

ICBC may unilaterally amend this Agreement only once per calendar year by posting a revised version of the Agreement on ICBC’s website before December of that year. The revised version of the Agreement will not take effect until the first day of January (of the subsequent year). Notwithstanding the above, ICBC may amend this Agreement at any time if ICBC considers it necessary to address a material change in Applicable Laws. An amendment to this Agreement will not be applicable to SOWs that were already in force prior to such amendment.

Each SOW is a separate contract that incorporates and is governed by the version of this Agreement and the other Contract Documents that are in force on the effective date of the SOW. Unless otherwise expressly provided, this version of this Agreement came into effect on the first day of January of the “version year” set out below.

NOW THEREFORE, for consideration (that is deemed sufficient) the parties agree as follows:

1. SERVICES

1.1 Statements of Work. Supplier will provide to ICBC the Services set out in each SOW and will comply with reasonable directives related to Services made by ICBC from time to time. A SOW will be effective only after it is signed by both parties.

1.2 Subcontractors. Supplier will not subcontract any of Supplier’s obligations under a SOW unless the subcontractor has been approved by ICBC in the SOW or otherwise in writing. For greater clarity, the term “Supplier Personnel” includes any subcontractor.

1.3 Supplier Personnel. Supplier will: (a) cause Supplier Personnel to comply with all Supplier’s obligations; (b) be liable for all acts and omissions of Supplier Personnel (so that a failure by Supplier Personnel to comply with Supplier’s obligations will be a breach by Supplier); (c) ensure Supplier Personnel have all necessary skills, experience, training, qualifications, and licenses; and (d) replace Supplier Personnel that provide Services within a reasonable time, if requested by ICBC.

1.4 Personnel Plan. Before entering into a SOW, Supplier will obtain ICBC’s written approval of a table in the form set by ICBC with details of each person that will provide Services under that SOW (the “Personnel Plan”).

1.5 Background Checks and Onboarding. Before any Supplier Personnel performs work for ICBC, Supplier will: (a) ensure that reasonable and industry standard background and reference checks have been done on the Supplier Personnel, and that ICBC has been fully informed of any potential issues or concerns that were identified; (b) comply with any reasonable and industry standard background and reference check requirements set by ICBC from time to time; and (c) cause the Supplier Personnel to consent to ICBC conducting its own reasonable and industry standard background and reference checks (including by using ICBC’s own data related to the Supplier Personnel). Supplier will also cause the Supplier Personnel to comply with any reasonable and industry standard onboarding processes required by ICBC.

1.6 Policies, Laws & Location. Supplier will, in relation to each SOW: (a) comply with ICBC’s Code of Ethics (but not the parts thereof that are clearly only intended for employees); (b) comply with all ICBC polices specified in the SOW; (c) comply with all Applicable Laws that relate to Supplier’s performance or obligations (including those relating to export and import); and (d) not provide any Services from outside Canada unless expressly approved by ICBC in the SOW. ICBC will, in relation to each SOW, comply with all Applicable Laws that relate to ICBC’s performance or obligations. All references to ICBC’s policies refer to the versions of those policies that are in force on the effective date of the applicable SOW.

1.7 Workers Compensation. Supplier will comply with, and will cause its subcontractors to comply with, all Applicable Laws relating to occupational health and safety, including the Workers Compensation Act in B.C. and similar laws in other jurisdictions. This will likely require Supplier and its subcontractors to register with WorkSafeBC.

1.8 Services Warranty. Supplier will ensure that the Services: (a) are provided with reasonable care and in accordance with Good Industry Practice; (b) comply with all specifications set out in the Contract Documents; (c) comply with all specifications set out in the procurement submissions and software user stories; (d) are free of material defects; and (e) are free of Malicious Code. If ICBC acting reasonably (based on objective grounds) determines that any Services fail to conform to this warranty, then Supplier will promptly refund, reperform or correct the Services, as directed by ICBC (in each case at Supplier’s own cost).

1.9 Deliverable Acceptance Testing. ICBC may test each Deliverable. Within 30 days of providing a Deliverable, Supplier must obtain ICBC’s written acceptance thereof. If there is more than one related Deliverable, then Supplier must obtain acceptance of each related Deliverable separately and cumulatively. Supplier may obtain ICBC’s written acceptance of Deliverables in any reasonable and industry standard manner.

1.10 Deliverable Testing Failure. If Supplier cannot obtain ICBC’s acceptance of a Deliverable, then Supplier must obtain ICBC’s reasons for the rejection. Supplier, at its own cost, will correct the deficiencies within 10 days following receipt of ICBC’s reasons for rejection, and resubmit the Deliverables to ICBC for acceptance testing.

1.11 Additional Deliverable Testing Failures. If there is more than one acceptance testing failure in relation to a Deliverable, then ICBC is entitled to: (a) return the Deliverable to Supplier; (b) terminate all or part of the applicable SOW; and (c) claim and receive a refund of all fees relating to such returned Deliverable.

1.12 Staff Augmentation. Notwithstanding any other term of this Agreement, when a staff augmentation SOW is explicitly used: (a) Supplier Personnel will act under the direction of ICBC to support project objectives defined by ICBC; and (b) unless otherwise stated in the staff augmentation SOW: (i) there will be no formal acceptance testing of Deliverables; and (ii) Sections 1.8(b) to 1.8(d) will not apply to the Services.

2. FEES AND EXPENSES

2.1 Fees. Notwithstanding any other term of the Contract Documents, ICBC will only pay to Supplier up to the maximum amounts specified in a SOW. For time and material transactions, ICBC will pay the rates in the applicable Rate Card (unless otherwise expressly provided). Supplier will only increase the rates set out in the Rate Card in accordance with the terms of the Rate Card and this Agreement. Unless otherwise stated in the Rate Card, Supplier may only increase the Rate Card rates once per contract year (by providing at least 30 days notice of the rate increase). A rate increase will not be applicable to SOWs (including any Personnel Plans) that were already in effect prior to the rate increase.

2.2 Expenses. Supplier is responsible for all its expenses unless otherwise provided in a SOW. If a SOW provides that ICBC will reimburse expenses, then Supplier must ensure that such expenses are: (a) pre-approved by ICBC acting reasonably (if over $500); (b) reasonable in amount; (c) invoiced monthly in arrears (unless otherwise set out in the SOW); (d) supported by reasonable receipts and supporting documentation (if over $25); (e) charged at cost without any mark-up; and (f) in compliance with ICBC’s travel and expenses policy (unless otherwise set out in the Rate Card or SOW).

2.3 Payment. Unless otherwise provided in a SOW, fees and expenses will be invoiced by Supplier monthly in arrears. All invoices will be payable by ICBC within 30 days after ICBC’s receipt of such invoice. Supplier will comply with all reasonable ICBC requests related to the content, form, submission, and supporting documents of the invoice. ICBC is not obligated to pay the portion of an invoice that is disputed by ICBC in good faith. Payment will not be deemed to be acceptance of any Services. ICBC may set off any liability it owes to Supplier against any liability Supplier owes to ICBC.

2.4 Interest. If ICBC fails to pay any undisputed amount by the due date, and such failure is not cured within 30 days after notice of such failure by Supplier, then Supplier may assess an interest charge at the Bank of Canada prime interest rate plus 1% per annum, not to exceed in total a maximum of 9% per annum. No interest will be assessed or charged on amounts that are disputed by ICBC in good faith.

2.5 Taxes. Supplier will collect from ICBC and remit to the relevant authorities in a timely and proper manner all federal goods and services taxes (“GST”), provincial sales taxes (“PST”), and other equivalent sales taxes payable by ICBC under Applicable Laws based on payments to Supplier by ICBC. Supplier will specify such taxes as separate line items on each invoice. If required by Applicable Laws, Supplier must be registered in good standing for GST, PST, and other equivalent sales taxes. Supplier is responsible for paying and remitting all other taxes, duties, charges, levies, fees, tariffs, and assessments to the relevant authorities in a timely and proper manner (unless otherwise expressly provided in a Rate Card or SOW).

2.6 Deductions, Payments and Remittances. Supplier is responsible and liable for making all deductions, payments, and remittances required by Applicable Laws related to the Contract Documents (including those related to Supplier’s income taxes and employees). Supplier’s responsibility and liability under this Section is limited to deductions, payments, and remittances that are ordinarily made by suppliers.

2.7 Withholdings. If Supplier is not resident in Canada and renders Services in Canada, then ICBC may be required by law to withhold certain amounts from fees and expenses otherwise payable to Supplier and to remit such amounts on Supplier’s behalf to the relevant authorities. Supplier will fully cooperate with ICBC in relation to the above (including by repaying any prepaid amounts that ICBC determines to be subject to withholding tax). Supplier will separately identify on each invoice all Services rendered outside Canada.

2.8 ICBC Not Required to Pay. Except as otherwise expressly set out in the applicable SOW, ICBC is not required to pay any amount: (a) to perform warranty work; or (b) to correct or replace any defective Services.

3. PROJECT TERMS

3.1 Project Management. For each SOW, each party will designate one of its Representatives as its project manager. Each party will ensure that its project manager is sufficiently available to act as the primary day-to-day contact for all matters relating to the SOW. If requested by ICBC, Supplier will designate one of its Representatives as its account manager with responsibility for overall relationship management and oversight of administrative issues related to this Agreement. Supplier will comply with any reasonable reporting requirements set by ICBC from time to time.

3.2 Project Methodology. Supplier will execute all its SOW obligations and manage the project using methodologies, tools, and procedures in accordance with Good Industry Practice. Supplier’s project methodology must integrate with ICBC’s project methodology (including project phases, governance, and reporting). If required by ICBC, Supplier will prepare a project plan that is acceptable to ICBC, acting reasonably.

3.3 KPIs. If the Contract Documents include key performance indicators or service levels (collectively, “KPIs”) and Supplier fails to meet a KPI, then Supplier will be in breach of contract and will promptly: (a) investigate the failure; (b) correct the failure (to the extent possible); and (c) fully advise ICBC of the above breach, actions, and outcomes.

4. RISK MANAGEMENT

4.1 Risk Management. Supplier will provide to ICBC such reasonable information as ICBC may from time to time request for the purpose of assessing risks associated with Supplier or the Services, including information on Supplier’s own risk management practices and other information required to assess Supplier’s ability to perform.

4.2 Significant Events. Supplier will promptly notify ICBC of any significant circumstances or events that a reasonable person would interpret as potentially having negative consequences for ICBC or the Services.

4.3 Records Retention. For the duration of each SOW and 2 years thereafter, Supplier will maintain records necessary to substantiate: (a) the amount of all payments under the SOW; (b) that the Services were provided in accordance with the Contract Documents; and (c) that Supplier otherwise complied with the Contract Documents.

4.4 ICBC Audits. For the duration of each SOW and 2 years thereafter, ICBC may inspect any materials, practices, and premises relevant to Supplier’s compliance with the Contract Documents (“Audit”), and Supplier will promptly (and without charge) cooperate with such Audit, including by: (a) allowing inspection of reports; (b) delivering material; and (c) as a last resort, allowing access to premises on reasonable notice. If any Audit determines that Supplier is not in compliance with the Contract Documents, then Supplier will correct such non-compliance. During an Audit, ICBC must comply with Supplier’s reasonable timing, security, and client confidentiality requirements.

4.5 Insurance. Supplier will comply with the insurance terms in Schedule C [Insurance].

5. CONFIDENTIAL AND PERSONAL INFORMATION

5.1 Use and Disclosure. Recipient will: (a) only use and disclose Confidential Information for the purpose of performing its obligations and enforcing its rights under the Contract Documents and, in the case of ICBC, enjoying the benefit of the Services; and (b) only disclose Confidential Information to those with a “need to know” for the purpose. All ICBC Confidential Information is provided “AS IS” and without any representation or warranty as to its accuracy or completeness.

5.2 Additional Permitted Disclosures. Notwithstanding Section 5.1: (a) Confidential Information may be disclosed in accordance with the written approval of the Discloser or as required by Applicable Laws; (b) Supplier consents to ICBC disclosing Confidential Information to the Province of B.C., to ICBC’s regulators, and to ICBC’s brokers, business partners, and suppliers (that are not in direct competition with Supplier); (c) either party may disclose the terms of the Contract Documents to its affiliates, legal counsel, accountants, and other similar professional advisors on appropriate obligations of confidentiality; and (d) Supplier acknowledges that ICBC is a public body under FIPPA and that Supplier Confidential Information may be subject to rights of access under FIPPA.

5.3 Disclosure Required by Applicable Laws. If Recipient is required by Applicable Laws to disclose any Confidential Information, then (unless prohibited by Applicable Laws) Recipient will promptly notify Discloser and provide any reasonable assistance requested by Discloser.

5.4 Safeguarding and Breach. Recipient will take reasonable steps to keep the Confidential Information secure and confidential, to a standard not less than Good Industry Practice. Recipient will promptly notify Discloser of any real or suspected breach of this Section 5 (including any loss, inappropriate use, or unauthorized disclosure of Confidential Information) and, if possible, will promptly remedy any such breach.

5.5 Ownership. All Confidential Information of Discloser is and will continue to be the exclusive property of Discloser and the persons who have licensed or otherwise provided the Confidential Information to Discloser. The Contract Documents do not grant any right or license (of any kind) in or to the Confidential Information, except as otherwise expressly set out in the Contract Documents.

5.6 Compliance by Others. Recipient will cause all persons to whom it discloses Confidential Information to comply with Recipient’s obligations under this Section 5 and will be liable for all acts and omissions of such persons (so that a failure by such persons to comply with Recipient’s obligations will be a breach by Recipient). This Section 5.6 does not apply to disclosures made by ICBC to the Province of B.C., to ICBC’s regulators, or under FIPPA.

5.7 Destruction. At the end of the applicable SOW or at Discloser’s request (whichever occurs earlier), Recipient will promptly cause all Confidential Information to be destroyed in a manner that will permanently prevent the retrieval or reconstruction of any part thereof. Confidential Information on automatic backup systems must be destroyed as soon as it is practical to do so. On the request of Discloser, Recipient will certify that it has complied with this Section 5.7. Nothing herein requires ICBC to destroy or stop using any Confidential Information that allows ICBC to fully enjoy the benefits of the Services. Notwithstanding any other term of this Agreement: (a) Recipient may retain Confidential Information for archival, audit, legal, or regulatory purposes for as long as reasonably required for such purposes; but (b) all ICBC PI must be destroyed in accordance with Schedule B [Protection of Personal Information]. In addition to the above, Recipient will comply with any reasonable requirement or request by Discloser to return Confidential Information before such destruction.

5.8 Access to ICBC Premises & ICBC Systems. If Supplier is given access to ICBC premises or ICBC Systems, then Supplier will comply with all instructions, policies and procedures provided by ICBC to Supplier from time to time relating to such access.

5.9 Personal Information. If Supplier accesses, collects, uses, or discloses ICBC PI (or allows others to do so), then Supplier will comply with the personal information terms in Schedule B [Protection of Personal Information].

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Supplier Retained Rights. Supplier or its licensors retain ownership of all Supplier Pre-existing IP (including all pre-existing Supplier data and materials) and Supplier Confidential Information. ICBC acquires no rights in these except as expressly provided in the Contract Documents.

6.2 ICBC Retained Rights. ICBC or its licensors retain ownership of all ICBC Pre-existing IP, ICBC Material, ICBC PI, ICBC Confidential Information, and ICBC Systems. Notwithstanding anything to the contrary in the other Contract Documents, Supplier acquires no rights in these except for license rights expressly granted to Supplier in this Agreement.

6.3 License Granted to Supplier. Exclusively to provide Services under a specific SOW, ICBC grants to Supplier a non-exclusive, non-sublicensable and non-transferable license during the term of that SOW for Supplier to use ICBC Pre-existing IP and ICBC Material that is provided or made accessible to Supplier in relation to that SOW.

6.4 Deliverable Ownership. Subject to ICBC complying with its payment obligations in Section 2 (and unless otherwise expressly provided in a SOW): (a) ICBC is and will be the owner of each Deliverable and all Intellectual Property Rights therein as of the date the Deliverable or the work in it is first created, conceived, reduced to practice, or reduced to a tangible medium of expression, whichever occurs first, other than any Supplier Pre-existing IP (including all pre-existing Supplier data and materials), Supplier Confidential Information, and ICBC-approved Third Party Materials that may be included in the Deliverable; (b) Supplier assigns and agrees to assign to ICBC each Deliverable and all Intellectual Property Rights therein, other than any Supplier Pre-existing IP (including all pre-existing Supplier data and materials), Supplier Confidential Information, and ICBC-approved Third Party Materials that may be included in the Deliverable; and (c) Supplier agrees to waive, and agrees to cause Supplier Personnel to agree to waive, all moral rights or similar rights in each Deliverable.

6.5 License Granted to ICBC. Subject to ICBC complying with its payment obligations in Section 2 (and unless otherwise expressly provided in a SOW), if and to the extent that ICBC does not own all Intellectual Property Rights in a Deliverable, Supplier grants to ICBC an irrevocable, perpetual, non-exclusive, sublicensable (through multiple tiers), transferable, worldwide, royalty-free, fully paid-up license to Use the Deliverable (including any incorporated Supplier Pre-existing IP, pre-existing Supplier data and materials, Supplier Confidential Information, and Third Party Materials) without restriction or limitation and for any purpose.

6.6 Third Party Materials. Unless specified on a Rate Card or SOW (or otherwise approved by ICBC in writing), Supplier will ensure that: (a) Deliverables do not contain Third Party Materials; (b) ICBC’s Use of the Services will not require ICBC to obtain any rights or licenses to Use Third Party Materials; and (c) no Deliverable is governed in whole or in part by a copyleft open source license. If ICBC approves Third Party Materials in writing, then, if requested by ICBC, Supplier will deliver to ICBC documentation confirming ICBC’s rights to the Third Party Materials.

7. WARRANTIES

7.1 Supplier Warranties. Supplier represents and warrants to ICBC and agrees that: (a) all information provided by Supplier to ICBC in connection with the Contract Documents is true and accurate in all material respects ; (b) Supplier holds and will continue to hold all authority, permits, licenses, and approvals required by Applicable Laws that are necessary to provide the Services to ICBC and to allow ICBC to Use the Services in Canada; (c) Supplier has or will have all rights in the Services necessary to perform its obligations under the Contract Documents and to grant to ICBC the ownership and licenses granted by the Contract Documents; (d) the Services will be free and clear of all security interests, liens, and encumbrances; and (e) the Services do not and will not infringe any Intellectual Property Rights of any third party.

7.2 Exclusion of Warranties. Except as expressly provided in the Contract Documents, there are no representations, warranties, or conditions (express or implied) with respect to the Services, and Supplier specifically disclaims all other representations, warranties, or conditions, including any warranties or conditions of merchantability, durability, fitness for a particular purpose, or non-infringement.

8. INDEMNIFICATION

8.1 Supplier Indemnity. Supplier will indemnify and hold harmless (and if requested defend) ICBC and its Representatives from and against any third party Claims (including third party Damages and costs of defending any third party Claim) incurred by any of them, relating to: (a) a breach by Supplier or Supplier Personnel of the Contract Documents; (b) a failure by Supplier or Supplier Personnel to comply with Applicable Laws; (c) alleged infringement of an Intellectual Property Right related to Services; (d) gross negligence or willful misconduct by Supplier or Supplier Personnel; (e) a Security Incident caused by Supplier or Supplier Personnel; (f) any death, bodily injury, or property damage caused by Supplier or Supplier Personnel; or (g) any allegation that ICBC has statutory or other liability for a tax, assessment, penalty, interest, wage, benefit, or other amount relating to Supplier Personnel or Services (other than taxes payable by ICBC under Section 2.5). Notwithstanding the above, Supplier’s obligation to indemnify and hold harmless ICBC and its Representatives from and against any third party Claims shall be reduced to the extent that the third party Claims (including third party Damages) were contributed to by the errors, omissions, willful misconduct, or gross negligence of ICBC and its Representatives.

8.2 Intellectual Property Remedy. If ICBC is enjoined from its Use of, or Supplier is enjoined from its provision of, any Services, then Supplier will, at its expense and without limiting its indemnification obligations under Section 8.1, take any one or more of the following actions: (a) procure for ICBC the right to continue to Use the Services; (b) replace the Services with non-infringing Services acceptable to ICBC; (c) modify the Services to be non-infringing in a manner acceptable to ICBC; or (d) refund all fees relating to the Services.

8.3 Indemnification Process. If ICBC requests that Supplier defend a Claim, then: (a) ICBC retains the right to participate in the defense and any settlement negotiations involving the Claim (at its own cost and with its own lawyers); (b) Supplier will not settle the Claim or admit liability on the part of ICBC or its Representatives without ICBC’s prior written consent; and (c) ICBC may assume or resume the defense of the Claim at any time by notice to Supplier.

9. LIMITATION OF LIABILITY

9.1 No Consequential Damages, Etc. Subject to Section 9.3, in no event will either party be liable to the other party for any indirect, consequential, special, incidental, or punitive damages, including lost profits or loss of goodwill, whether based on contract, warranty, tort, or otherwise, and whether or not such damages were foreseeable.

9.2 Limitation of Liability. Except as set out in Section 9.3 (and except for ICBC’s payment obligations in Section 2), each party’s aggregate liability arising from a specific SOW (including the Contract Documents relating to that specific SOW), whether in contract, tort, or otherwise, will not exceed the greater of 2 times all amounts paid or payable by ICBC under that specific SOW or $5,000,000.

9.3 Exceptions. Section 9.1 will not apply to a party’s willful misconduct, and the liability cap in Section 9.2 will be double with respect to a party’s willful misconduct, gross negligence, and indemnification obligations under the Contract Documents.

10. TERM, TERMINATION & TRANSITION

10.1 Term. This Agreement is effective and continues for the full duration of all SOWs and Rate Cards that refer to (or incorporate) this Agreement. Each SOW and each Rate Card commences on the effective date specified therein and continues for the initial term specified therein. If a SOW or a Rate Card contains a renewal term, then ICBC may (separately for each such renewal term) unilaterally extend the document containing the renewal term for the duration of the renewal term specified therein. To exercise a renewal right, ICBC must provide Supplier with written notice of ICBC’s intent to renew the document containing the renewal term at least 30 days prior to the end of the initial term or the then current renewal term (as applicable).

10.2 Termination for Convenience. ICBC may, at any time, without liability and for any reason, terminate any SOW, any Rate Card, or this Agreement by providing at least 30 days’ notice to Supplier of ICBC’s intent to terminate (or such other amount of notice specified in the document that is being terminated).

10.3 Termination for Cause. A party may terminate any or all SOWs, Rate Cards, and this Agreement by providing the other party with notice of termination if the other party is in material breach of any SOW, any Rate Card, or this Agreement and the breach is not remedied within 30 days of having been given written notice of the breach.

10.4 SOW and Rate Card Continuation. The end of this Agreement will not terminate any SOW or any Rate Card, and the terms of this Agreement will continue to govern each surviving SOW and Rate Card.

10.5 Other Termination Rights. ICBC may immediately terminate any SOW, any Rate Card, or this Agreement by notice to Supplier if ICBC reasonably believes that: (a) Supplier’s financial or business conditions may negatively affect the viability of the SOW, the Rate Card, this Agreement, or Services; (b) the SOW, the Rate Card, this Agreement, or Services could negatively affect ICBC's reputation, or have adverse regulatory consequences for ICBC; or (c) ICBC is required to terminate the SOW, the Rate Card, this Agreement, or Services by Applicable Laws or by direction from the Province of B.C. or an ICBC regulator. Supplier may terminate any SOW, any Rate Card, or this Agreement, by providing at least 30 days’ notice to ICBC of Supplier’s intent to terminate, if due to a change of circumstances outside of Supplier’s control, Supplier is required to terminate the SOW, the Rate Card, or this Agreement by a regulatory body for professionals, an oversight agency, or Applicable Laws.

10.6 After Expiry or Termination. On the expiry or termination of any Contract Document, each party remains liable for obligations that accrued prior to such expiry or termination. On the expiry or termination of a SOW: (a) if required by ICBC, Supplier will provide ICBC with every Deliverable for which ICBC has made a payment under that SOW, whether completed or not (but Sections 1.8(b) to 1.8(d) will not apply to incomplete Deliverables); (b) if required by ICBC, Supplier will provide ICBC with a written report detailing each Service (including each Deliverable); (c) Supplier will promptly return to ICBC, in good condition, any equipment provided to Supplier; (d) Supplier will promptly return to ICBC any ICBC data held by Supplier, in such data format as ICBC may reasonably request; (e) for time and material Services transactions, ICBC will pay Supplier for the time worked and approved expenses incurred prior to expiry or termination; (f) for fixed fee Services transactions, ICBC will pay Supplier a pro rata portion of the total fixed fee having regard to the Services that were completed (as determined by ICBC acting reasonably); (g) if ICBC made any prepayment, then Supplier will refund such prepayments to ICBC after deducting any amount Supplier is entitled to under this Section; and (h) ICBC may set off against any amounts payable by ICBC to Supplier any Damages caused by Supplier or Supplier Personnel.

10.7 Transition. If ICBC requests transition assistance during the term of a SOW or within 3 months thereafter, Supplier will provide additional Services that ICBC deems necessary for the uninterrupted and orderly transition from Supplier to ICBC (or to third parties designated by ICBC), unless Supplier is prohibited from doing so by a regulatory body for professionals, an oversight agency, or Applicable Laws. Supplier will enter into a SOW with ICBC for such transition assistance at Supplier’s standard rates, but Supplier is not obligated to agree to provide more than 6 months of such transition assistance. Supplier will nonetheless negotiate with ICBC in good faith if ICBC requests more than 6 months of transition assistance.

10.8 Survival. The following provisions will survive the end of this Agreement or any other Contract Document: Sections 1.8 to 1.11, 2, 4.3, 4.4, 4.5, 5, 6, 7, 8, 9, 10.6 to 10.8, and 11, Schedule A [Definitions], Schedule B [Protection of Personal Information], and Schedule C [Insurance], as well as any Sections of the Contract Documents that by their nature are intended to also survive.

11. GENERAL

11.1 Definitions. Unless otherwise defined, capitalized terms in the Contract Documents will have the meanings given to them in Schedule A [Definitions].

11.2 Informal Dispute Resolution. Prior to initiating formal proceedings relating to a Dispute, a party must first attempt to resolve the Dispute informally at the manager, director, and vice president levels (or equivalent levels of seniority).

11.3 Arbitration. All Disputes will be referred to and finally resolved by arbitration in Vancouver, B.C. administered by the Vancouver International Arbitration Centre pursuant to its applicable rules, and with a single arbitrator. The arbitration will be without recourse to the courts and the award of the arbitrator will be final and binding. During a Dispute, Supplier will not prevent, impede, or reduce the provision of Services or ICBC’s ability to conduct its business activities, unless authority to do so is granted by ICBC or conferred by an arbitrator or a court of competent jurisdiction.

11.4 Governing Law. The Contract Documents will be governed by and construed in accordance with the laws of B.C. and the federal laws of Canada applicable in B.C., without regard to any conflict of law rules that might apply the laws of any other jurisdiction.

11.5 Jurisdiction. Except as otherwise set out in this Agreement, the parties each attorn to the exclusive jurisdiction of the courts of B.C. in respect of any Dispute, Claim, controversy, or other legal matter related to the Contract Documents.

11.6 Relationship. Supplier is an independent contractor. Nothing in the Contract Documents will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, franchise, employment, or fiduciary relationship between the parties. Supplier Personnel will not be construed as employees or contractors of ICBC.

11.7 No Publicity. Supplier will not publicly disclose the relationship between Supplier and ICBC on any website, press release, or advertisement, without the prior written consent of ICBC. Supplier is permitted to disclose the existence of the relationship in non-public marketing materials provided only to Supplier’s likely future customers.

11.8 Entire Agreement. For this Agreement and each SOW, the Contract Documents set forth the entire understanding between the parties regarding the subject matter of this Agreement and such SOW, and supersede all other previous and contemporaneous communications, representations, negotiations, discussions, agreements, or understandings with respect to the subject matter of this Agreement and such SOW, including anything on Supplier transaction materials such as invoices or online terms or any generic terms in an ICBC purchase order.

11.9 Amendments. Unless otherwise expressly stated herein: (a) a SOW may not be amended except by Change Order signed by both parties; (b) a Personnel Plan may not be amended except: (i) as set out in the SOW; or (ii) by Change Order signed by both parties; and (c) other Contract Documents (like a Rate Card) may not be amended except by Modification Agreement signed by both parties.

11.10 Further Assurances. Each party will execute all further documents and instruments and do all further and other things as may be necessary to implement and carry out the terms of the Contract Documents.

11.11 Templates and Drafting. Unless otherwise specified by ICBC, every SOW, Rate Card, Change Order, and Modification Agreement will be drafted by Supplier (and may be edited by ICBC) using templates provided to Supplier by ICBC from time to time.

11.12 Waivers. Failure by a party to insist on strict performance of any of the terms of the Contract Documents will not operate as a waiver by that party of that or any subsequent failure of performance. A waiver is effective only if it is in writing and signed by the waiving party.

11.13 Notices. Each notice under the Contract Documents must be in writing and must be delivered to the other party’s Addresses for Notice (which may be amended by notice given in compliance with this Section). Each notice will be deemed to have been received on the date of physical receipt or successful electronic transmission.

Addresses for Notice

11.14 Assignment. Supplier may not assign any interest in any Contract Document without the written consent of ICBC (which consent will not be unreasonably withheld). Supplier will be deemed to have assigned an interest in all Contract Documents if a third party directly or indirectly acquires substantially all of Supplier’s equity or assets. Failure to comply with this Section will render any assignment or deemed assignment void. ICBC may assign its interest in any Contract Document without consent.

11.15 Equitable Relief. Each party agrees that a breach of any of the provisions of the Contract Documents by that party regarding Confidential Information, ICBC PI, or Intellectual Property Rights will result in irreparable harm to the other party that cannot reasonably or adequately be compensated in damages by a monetary award. Each party agrees that, notwithstanding any other term of the Contract Documents, if the other party alleges a breach of any such provision, then, in addition to all the remedies available at law or in equity, the other party is entitled to relief by way of a restraining order, injunction (including an interim injunction), decree or otherwise, as may be appropriate to ensure compliance with the Contract Documents.

11.16 Cumulative Remedies. All rights and remedies under the Contract Documents are cumulative, are in addition to and not in substitution for any rights or remedies at law, and may be exercised at any time (independently or in any combination).

11.17 Force Majeure. No party will be liable for a failure to perform that is caused by an event beyond its reasonable control. An event will not be considered beyond Supplier’s reasonable control if contingency planning in accordance with Good Industry Practice would have prevented or significantly mitigated the effects of the event. The affected party will make all reasonable efforts to resume compliance with that party’s obligations as soon as possible. ICBC may terminate this Agreement or any SOWs if Supplier fails to perform for longer than 14 days due to a force majeure event.

11.18 Business Continuity Plan. Supplier will have an up to date disaster recovery and business continuity plan in accordance with Good Industry Practice. If requested by ICBC, Supplier will provide a summary of its plan and any readiness testing results.

11.19 Severability. If any provision of the Contract Documents is unlawful, void, or unenforceable, then that provision will be deemed severed from the remaining provisions and will not affect the validity and enforceability of the remaining provisions.

11.20 Precedence of Terms. Unless otherwise expressly set out in a Contract Document, if there is any inconsistency or conflict between the terms in any of the following documents, the documents will take precedence and govern in the following order of priority: (a) Schedule B [Protection of Personal Information]; (b) the body of this Agreement and all other Schedules; (c) the applicable Rate Card; (d) the applicable SOW; (e) any Personnel Plan; and (f) any other Contract Document. Notwithstanding the above, a Personnel Plan cannot increase its own order of precedence (and any term in a Personnel Plan that proports to do so is void), but another Contract Document can increase a Personnel Plan’s order of precedence if the other Contract Document contains express language to that effect.

11.21 Interpretation. The purchase of Services under the Contract Documents is on a non-exclusive basis and ICBC does not guarantee the purchase of any Services. There are no third party beneficiaries of the Contract Documents. Time is of the essence for the Contract Documents. All amounts in the Contract Documents are in Canadian dollars, unless otherwise specified. The term “person” includes individuals, corporations, partnerships, joint ventures, associations, trusts, societies, and all other juridical entities and organizations recognized by law. The term “including” means “including without limitation”. The Contract Documents will not be construed against or in favour of either party.

11.22 Enurement. The Contract Documents will be binding upon and enure to the benefit of the parties and their respective successors and permitted assigns (as applicable).

11.23 Execution. The Contract Documents may be: (a) executed in counterparts; (b) executed with electronic signatures of any kind, which will be deemed equivalent to physical signatures; and (c) expressed and delivered in any standard electronic format, which will be deemed equivalent to physical expression and delivery.

SCHEDULE A – DEFINITIONS

1. “Applicable Laws” means, in respect of each party, the then most current Canadian (and foreign) laws, regulations, by-laws, ordinances, rules, precedents, orders, directives, prescriptions, and policies of governmental or regulatory authorities that relate to the party’s performance or obligations under the Contract Documents.

2. “Change Order” means a change order between the parties that amends a SOW.

3. “Claims” means all claims, counterclaims, complaints, demands, proceedings, actions, causes of action and suits, and investigations of any nature and however arising, whether known or unknown, whether in law or in equity or under contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board, or tribunal.

4. “Confidential Information” means all information disclosed by a Discloser to a Recipient (or which Recipient obtains through observation or analysis of such information) that: (a) is marked or identified as confidential; or (b) by implication from its nature is intended to be, or is generally treated as, confidential. Confidential Information of Discloser includes all its customer, financial, and technical information. Confidential Information of ICBC includes ICBC PI and ICBC Material. The terms of the Contract Documents are deemed to be Confidential Information of both parties. Confidential Information does not include information that, without violation of any legal right: (i) is or becomes freely available to the public; (ii) is or becomes known by Recipient (from a third-party source) free of any obligations of confidentiality; or (iii) is independently developed for Recipient by persons with no knowledge of the Confidential Information.

5. “Contract Documents” means, for each SOW, collectively the SOW, this Agreement, the applicable Rate Card, the applicable Personnel Plan, and any other written agreements signed by both parties relating to the SOW.

6. “Damages” means any damages, liabilities, obligations, losses, deficiencies, penalties, administrative monetary penalties, interest, assessments, fines, charges, costs, and expenses, including legal fees and disbursements, consultant fees, and court costs.

1. “Deliverable” means, in relation to Services under a SOW (including staff augmentation Services), any tangible or intangible deliverable in the SOW and any other Services output provided by Supplier or its Representatives (including code, configurations, concepts, specifications, improvements, materials, designs, processes, algorithms, data, information, and derivative works thereof).

7. “Discloser” means a party that has disclosed, or whose Representative has disclosed, Confidential Information to the other party or to a Representative of the other party.

8. “Dispute” means any dispute about, relating to, arising from, or in connection with the Contract Documents.

9. “FIPPA” has the meaning set out in Schedule B [Protection of Personal Information].

10. “Good Industry Practice” means the exercise of that degree of care, skill, diligence, prudence, and foresight that would reasonably and ordinarily be expected at such time from a skilled and experienced provider of services in the Supplier’s industry.

11. “ICBC Material” means all equipment, materials, information, and data on or accessible through ICBC Systems (or otherwise provided or made accessible to Supplier), and any derivatives thereof.

12. “ICBC PI” has the meaning set out in Schedule B [Protection of Personal Information].

13. “ICBC Systems” means the computer systems and networks of ICBC and its Representatives, including all hardware, software, and other components of any of them.

14. “Intellectual Property Rights” means all worldwide intellectual property rights, whether or not registered or registrable, including patents, ideas, inventions, innovations, arts, processes, manufactures, developments, improvements, trademarks, tradenames, design rights, copyrights, moral rights, database rights, mask work rights, domain names, confidential or proprietary information or trade secrets, and all rights of a similar nature.

15. “Malicious Code” means any software or hardware that could alter, disable, encrypt, erase, harm, or permit unauthorized access to, any computer, systems, software, or data.

16. “Modification Agreement” means a modification agreement between the parties that amends a Contract Document other than this Agreement, a SOW or Personnel Plan.

17. “Pre-existing IP” means, for a party, Intellectual Property Rights that: (a) are owned or licensed by that party prior to entering into the applicable SOW; or (b) are subsequently acquired or licensed by that party independently of the Contract Documents.

18. “Rate Card” means a rate card for Services that describes the rates for Services, and that is signed by the parties. There may be more than one Rate Card, and a Rate Card may include other commercial terms.

19. “Recipient” means a party that has received, or whose Representative has received, Confidential Information from the other party or from a Representative of the other party.

20. “Representatives” means, with respect to a party to this Agreement, all personnel, directors, officers, shareholders, agents, affiliates, suppliers, subcontractors, successors, permitted assigns, and related persons. Representatives of ICBC include ICBC’s brokers and business partners. Representatives of Supplier include Supplier Personnel.

21. “Security Incident” means any incident, breach, or other event where there is an unauthorized loss, theft, access, acquisition, use, disclosure, alteration, encryption, or destruction of ICBC Material within the possession or control of Supplier, or a significant risk of any of the above.

22. “Services” means any service set out in a SOW (including any services that are necessarily incidental to the services set out in the SOW), and any other work provided by Supplier or its Representatives under a SOW. A reference to Services herein will be deemed to include the corresponding Deliverables flowing from those Services.

23. “SOW” means a statement of work between the parties, for Services.

24. “Supplier Personnel” means, collectively: (a) the employees or other persons acting on Supplier’s behalf; (b) Supplier’s direct and indirect contractors, subcontractors, service providers, suppliers, and consultants; and (c) the employees or other individuals acting on behalf of Supplier’s direct and indirect contractors, service providers, suppliers, and consultants.

25. “Third Party Materials” means any materials, information, or items, including open source software, that are proprietary to third parties, including technology, programs, and data. Third Party Materials do not include ICBC Pre-existing IP, ICBC Material, or ICBC Confidential Information.

26. “Use” means all forms of use for any purpose, including the unrestricted right to: (a) adapt, copy, combine with other works, develop, run, disclose, display, distribute, improve, maintain, modify, make derivative works of, and support; and (b) permit others to take any of these actions.

SCHEDULE B - PROTECTION OF PERSONAL INFORMATION

1. Terms. ICBC is a public body and its service providers are subject to the Freedom of Information and Protection of Privacy Act (BC) (“FIPPA”). In this Schedule, “personal information”, “public body”, “service provider”, and “employee” have the meanings in FIPPA.

2. Personnel. In this Schedule, any reference to Supplier includes its employees, contractors, agents, affiliates, service providers, and subcontractors doing work for ICBC, and Supplier will ensure that such persons comply with Supplier’s obligations in this Schedule.

3. Personal Information. This Schedule applies to all personal information in ICBC’s custody or control (including all personal information in Supplier’s custody or control on behalf of ICBC) that is accessed, collected, received, used, or disclosed (collectively, “Use”) in relation to this Agreement (collectively, “ICBC PI”). Supplier and ICBC will comply with FIPPA in relation to Use of ICBC PI.

4. Permitted Use. Supplier will only Use the ICBC PI to perform Supplier’s obligations under this Agreement. ICBC maintains full authority over all Use of ICBC PI.

5. Compliance Representative. Supplier will appoint a knowledgeable senior person in its organization to ensure (and take responsibility for) compliance with this Schedule.

6. Protection. Supplier will implement reasonable and industry standard practices for data security to protect ICBC PI against unauthorized Use, including: (a) ensuring that ICBC PI can only be accessed by persons that need to access the ICBC PI for the purposes of this Agreement (using unique IDs and passwords); (b) encrypting all electronic ICBC PI in transit and at rest; (c) retaining all ICBC PI exclusively on Supplier’s premises (unless approved by ICBC in advance); (d) maintaining audit trails and Use logs for all systems accessing, containing, or disclosing ICBC PI; (e) maintaining up-to-date anti-virus software, security patching, operating systems, and browsers on all computer systems; and (f) not transmitting ICBC PI over the internet without ICBC’s written approval.

7. Inspection. ICBC may inspect any locations, materials and practices relevant to Supplier’s compliance with this Schedule (“Review”), and Supplier will promptly (and without charge) cooperate with such Review, including by: (a) allowing inspection of reports or logs that track the Use of ICBC PI (“Review Material”); (b) delivering Review Material; (c) allowing access to premises (on reasonable notice and with Supplier’s consent); and (d) providing a written declaration confirming Supplier’s compliance with this Schedule. During a Review, ICBC must comply with Supplier’s reasonable timing, security, and client confidentiality requirements.

8. PI Incident. In this Section, “PI Incident” means any accidental, unauthorized, or unlawful Use of ICBC PI, or non-compliance with this Schedule. Supplier will immediately notify ICBC if Supplier knows or suspects a PI Incident occurred or may occur. Supplier will take all actions requested by ICBC to inform ICBC of, investigate, document, mitigate, remedy and litigate the PI Incident. Supplier will notify other parties of the PI Incident, but only if expressly requested by ICBC or compelled by law (and Supplier will obtain ICBC’s prior approval regarding the content of such notification).

9. Retention and Disposal. Supplier will only retain ICBC PI as long as necessary to perform Supplier’s obligations under this Agreement, and will then permanently destroy it. Notwithstanding any other term, Supplier may retain ICBC PI for archival, audit, legal, or regulatory purposes for a reasonable period (not to exceed an additional 6 months).

10. Investigation. Supplier will comply with investigations and orders of Canadian regulators (including the B.C. Privacy Commissioner) in connection with ICBC PI.

11. Foreign Demand. If a foreign entity directly or indirectly requests or demands ICBC PI, Supplier will refuse to comply and will promptly notify ICBC.

12. Termination and Survival. Any breach of this Schedule is material and is grounds for immediate termination by ICBC (notwithstanding any other term of this Agreement). The terms of this Schedule will survive after this Agreement, and Supplier must be able to prove its full compliance before and after.

SCHEDULE C - INSURANCE

If there is any inconsistency or conflict between the terms in any of the following documents regarding insurance, the documents will take precedence and govern in the following order of priority: (a) the applicable SOW, (b) the applicable Rate Card, (c) this Agreement, and (d) any other Contract Document.

1. Insurance. Supplier will maintain the following insurance, at its sole expense, for the duration of this Agreement and one year thereafter (the “Insurance Policies”), with no less than the Supplier Insurance Limits (per claim and in the aggregate) set out in the table below. If a Supplier Insurance Limit is marked as $0 or N/A in a Contract Document, then that insurance is not required.

Supplier Insurance Limits

2. Professional Liability Insurance, including errors and omissions coverage.

3. Commercial General Liability Insurance (“CGL Policy”), in respect of the operations of Supplier and its employees under this Agreement, for bodily injury, death, and property damage (including loss of use) and which includes the following coverage: Premises and Operations Liability, Owners’ and Contractors’ Protective Liability, Contractors’ Equipment, Products and Completed Operations Liability, Blanket Contractual Liability, Contingent Employer’s Liability, Personal Injury Liability, “Occurrence” basis coverage for Bodily Injury and Property Damage, “Broad Form” Property Damage coverage, including “Broad Form” Completed Operations coverage, “Broad Form” Loss of Use of Property coverage, and Non-Owned Automobile Liability insurance (including for hired vehicles). The CGL Policy will expressly provide as follows: (i) ICBC will be included as an additional insured under the CGL Policy; (ii) the CGL Policy is primary and non-contributory insurance with respect to liability arising out of Supplier’s negligence and in connection with this Agreement; (iii) any failure to comply with the reporting requirements of the CGL Policy will not affect the coverage provided to ICBC under the CGL Policy; and (iv) the coverage provided by the CGL Policy will apply separately with respect to each insured. The CGL Policy will include a “cross liability” or “severability of interests” clause and a “waiver of subrogation” in favor of ICBC.

4. Crime (Fidelity) Insurance, for loss of money, securities and tangible property resulting from a dishonest act by Supplier’s employees while performing work for ICBC.

5. Automobile Liability Insurance, including bodily injury and property damage coverage for all vehicles operated by Supplier in connection with work done for ICBC.

6. Cyber Liability Insurance, including network security and privacy breach coverage.

7. General. Supplier will ensure that all Insurance Policies: (a) are issued by an insurer licensed to do business in Canada; and (b) require the insurer to endeavour to notify ICBC in writing of any cancellation or non-renewal within 14 days of such event (but this will not be required if Supplier can show that their insurer refused to provide this service). At the start of this Agreement, at each renewal, and upon ICBC’s request, Supplier will provide to ICBC evidence of coverage under each Insurance Policy. Supplier will as soon as reasonably possible provide ICBC with written notice of any cancellation, non-renewal or material change of the Insurance Policies (and will as soon as reasonably possible deliver to ICBC any notice it receives related to the above). Supplier will be solely responsible for the payment of all deductibles and other payments in connection with claims under the Insurance Policies. The failure of any insurer to make a payment will not release Supplier from any liability to ICBC. ICBC may in its discretion require Supplier to obtain additional, or other insurance, or alter the Insurance Policies.

8. Other Insurance. Nothing herein limits Supplier’s liabilities relating to this Agreement, and the insurance herein may be insufficient to protect Supplier. Supplier should at its own expense maintain: (a) any additional insurance it deems necessary, and (b) insurance coverage for its own equipment.

Version year: 2025
Last updated: June 6, 2025