SERVICES AGREEMENT
(CONTRACTOR/SUPPLIER)
THIS SERVICES AGREEMENT (this “Agreement”) is entered into this ____ day of _____________, 20__, by and between 10263653 Manitoba Ltd. ("HomeKeepAI") and _______________________________________ (the “Supplier”).
WHEREAS:
A. HomeKeepAI has developed and operates an internet-based website and mobile application platform (collectively, the "Platform") for the purposes of:
(1) matching end-users ("Customers", and each a "Customer") with contractors and suppliers (collectively, "Service/Supply Providers") to allow Service/Supply Providers, including the Supplier, to respond to and bid for service and supply requests from Customers;
(2) facilitating communications and document workflow between Customers and applicable Service/Supply Providers;
(3) providing an online payment platform for payments by Customers to Service/Supply Providers; and
(4) such additional service options as HomeKeepAI may make available to Customers and Service/Supply Providers from time to time;
B. The Supplier wishes to access and use the Platform to have the opportunity to be matched by the Platform with Customers in order to bid on and, if such bid is accepted by the Customer, provide certain services or supplies, as an independent contractor, to Customers ("Platform Requested Services/Supplies") in accordance with the terms and conditions set out herein; and
C. In order to preserve the value of the Platform and HomeKeepAI's goodwill and reputation, HomeKeepAI requires certain assurances, as set out herein, with respect to the operation and conduct of the Supplier;
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties agree as follows:
1. Access to Platform and Nature of Services
1.01 HomeKeepAI hereby grants the Supplier a non-exclusive, non-transferable license to use the Platform in accordance with the terms and conditions set out in this Agreement and with HomeKeepAI’s other terms and policies as made available by HomeKeepAI to the Supplier from time to time including, without limitation, the Terms of Service for the Platform, as may be amended and updated from time to time (the "Terms of Service"). The Supplier acknowledges and agrees that it has read, understood and accepted the Terms of Service and that, in addition to this Agreement, the Supplier shall be subject to the terms and conditions set out therein. Notwithstanding the foregoing, the Supplier acknowledges that as at the date hereof the Platform has not yet been made accessible to Service/Supply Providers, and agrees that the start date of the license granted herein shall commence on the launch date of the Platform, being such date that the Platform is made publicly available to Service/Supply Providers and Customers, as advised in writing by HomeKeepAI (the "Launch Date").
1.02 The Supplier acknowledges that any opportunities presented to it through the Platform to respond to or bid on any Platform Requested Services/Supplies shall be determined by function of the Platform’s proprietary software and neutral information matching platform and HomeKeepAI makes no claims, commitments, representations or warranties as to the quantity or quality of opportunities that may be presented to the Supplier via the Platform. The Supplier further acknowledges that it is the Supplier’s sole responsibility to ensure that any and all information that it inputs to the Platform in respect of the Supplier’s profile and information is accurate and up-to-date. Notwithstanding anything to the contrary set forth in the foregoing, the Supplier acknowledges that HomeKeepAI reserves the right to offer or provide incentives, such as featured placement, to Service/Supply Providers that have contracted with HomeKeepAI before or during the initial operating period following the Launch Date or if and when introduced as an optional function or feature as contemplated in section 1.05 of this Agreement.
1.03 The Supplier acknowledges that HomeKeepAI is contracting with the Supplier solely for the purposes of providing access to the Platform in accordance with the terms and conditions of this Agreement, and HomeKeepAI shall not be a party to, liable for or obligated in any manner with respect to the contracting for and provision and performance of Platform Requested Services/Supplies by the Supplier with any Customer. Without limitation to the foregoing, in the event that the Supplier is presented the opportunity for, or agrees to provide, any Platform Requested Services/Supplies to a Customer, the Supplier acknowledges and agrees:
(a) that the Supplier is solely responsible for creating, managing and administering, through the Platform, any quote(s), bid(s) contract(s), work order(s), purchase order(s), progress reports (including progress photos or videos) or other documentation required by the Supplier for the provision of such Platform Requested Services/Supplies, including obtaining Customers’ required execution thereof, and further acknowledges and agrees that the Platform shall be used for communications with, and administration and exchange of documentation with, the Customer, and processing of payments by the Customer to the Supplier, but all transactions, contract performance, safety and environmental compliance, on-site operations and other matters in respect of the provision of Platform Requested Services/Supplies by the Supplier to any Customer is subject to their direct contractual relationship;
(b) that the Supplier is solely responsible for conducting such due diligence as the Supplier requires in respect of any Customer and related Platform Requested Services/Supplies including, without limitation, verification of the Customer’s identity and information, verification of ownership of any subject property and creditworthiness of the Customer, and further acknowledges that HomeKeepAI performs no due diligence or verification in respect of Customers or their information;
(c) that the Supplier is solely responsible for any warranty fulfillment in respect of the Platform Requested Services/Supplies, including, with respect to the provision of supplies and materials, any applicable manufacturer’s warranty;
(d) that although certain fields of information are to be completed during registration and onboarding of the Supplier to the Platform, and updates of such information thereafter, whether input of such information is required or optional, a Customer may, in its discretion, may require additional information be provided by the Supplier prior to selection for contracting with the Supplier for the provision of Platform Requested Services/Supplies; and
(e) that notwithstanding that the Supplier may, subject to its terms and conditions as agreed to with any applicable Customer, sub-contract any part of Platform Requested Services/Supplies undertaken by the Supplier via the Platform, the Supplier shall at all times remain primarily responsible for the management and delivery of such Platform Requested Services/Supplies and the Supplier’s use of the Platform and compliance with this Agreement, and no such sub-contracting by the Supplier shall relieve the Supplier of its obligations and covenants under this Agreement.
1.04 Payment processing services for the Platform shall be used to process payments made by Customers for Service/Supply Providers, including the Supplier, and are provided by such payment services providers as HomeKeepAI may choose from time to time (the "Payment Processing Services Provider"). The Supplier acknowledges that the Payment Processing Services Provider may implement such transaction hold periods or experience processing delays, and HomeKeepAI shall not be responsible or liable on account of any such holds or delays. The Supplier hereby authorizes HomeKeepAI to share with the Payment Processing Services Provider such financial information, banking details and transaction information as required to allow the Payment Processing Services Provider to process Customer payments. The Supplier shall be responsible for any third party transaction and payment processing fees charged by the Payment Processing Services Provider and acknowledges and agrees that it shall be solely responsible for reporting and remitting any and all PST and GST/HST applicable in respect of payments received by the Supplier. The Supplier acknowledges and agrees that HomeKeepAI is not responsible or liable for the use or misuse of such financial information, banking details and transaction information by the Payment Processing Services Provider or any third party.
1.05 HomeKeepAI may at any time add certain functions and qualification requirements to the Platform, including for additional service categories, project types and/or Customer requirements. The Supplier may, but is not obligated to, voluntarily opt-in to such additional functions, features and qualifications at the Supplier’s sole decision, including with respect to any added functions that may be subject to additional fees as determined by HomeKeepAI, in its discretion.
1.06 HomeKeepAI will make every reasonable effort to have the Platform available at all times. However, HomeKeepAI cannot guarantee such availability. Accordingly, HomeKeepAI’s sole liability to the Supplier or any third party for claims arising out of the unavailability of the Platform and the services and functions provided through the Platform, or interruption or delay of the Platform’s services and functions for any reason, notwithstanding whether such claim is for breach of contract, negligence, or otherwise, shall be to use its best efforts to make the Platform and the Platform’s services and functions available or restored as promptly as reasonably practicable.
2. Representations, Warranties and Covenants of the Supplier
2.01 The Supplier represents and warrants to HomeKeepAI that:
(a) if the Supplier is a corporation, it is duly incorporated and organized and in good standing in the jurisdiction of its incorporation and is qualified to carry on business in the Province of Manitoba;
(b) the Supplier and its employees, contractors and other persons for whom the Supplier is responsible at law hold all necessary licenses, certifications, permits and/or qualifications necessary for it to perform or supply such Platform Requested Services/Supplies as the Supplier may bid for and agree to provide to Customers via the Platform;
(c) the Supplier is free to enter into this Agreement and provide any Platform Requested Services/Supplies undertaken by the Supplier via the Platform, and that this Agreement and the provision of any such Platform Requested Services/Supplies does not and will not violate the terms of any agreement between the Supplier and any third party or, where applicable, the intellectual property rights of any third party; and
(d) the Supplier is registered for Manitoba RST and GST/HST, and its registration numbers are:
for Manitoba RST: _____________________;
for GST: _____________________.
The Supplier covenants that it shall take all acts necessary to ensure that the foregoing representations and warranties remain true and correct throughout the term of this Agreement, and in the event that any of the foregoing representations and warranties shall become untrue or inaccurate, whether by act or omission of the Supplier or otherwise, the Supplier shall forthwith provide written notice to HomeKeepAI advising as to such event and HomeKeepAI may, at its option, suspend the Supplier's account on the Platform until such event is remedied to HomeKeepAI's satisfaction, or terminate the Supplier's account on the Platform and this Agreement.
2.02 The Supplier hereby further agrees as follows:
(a) during the term of this Agreement, the Supplier shall devote as much of its time, energy and abilities to the performance of any Platform Requested Services/Supplies undertaken by the Supplier via the Platform as is necessary to perform any such Platform Requested Services/Supplies in a timely, competent and professional manner, and shall at all times carry out any such Platform Requested Services/Supplies and interactions and communications with Customers in a professional and courteous manner;
(b) the Supplier will furnish HomeKeepAI with such reports and information concerning any Platform Requested Services/Supplies undertaken by the Supplier via the Platform or any other matters as HomeKeepAI may reasonably request from time to time, including in respect of any Customer complaints;
(c) the Supplier shall at all times comply with all laws, rules, regulations, by-laws, building codes and ethical codes as applicable to the Supplier and its provision of any Platform Requested Services/Supplies undertaken by the Supplier via the Platform; and
(d) the Supplier shall comply with all policies and procedures of HomeKeepAI including, without limitation, those policies of HomeKeepAI dealing with privacy, including HomeKeepAI's privacy policy as referenced in the Terms of Service, and, specifically, shall ensure that it is in compliance with the Personal Information Protection and Electronic Documents Act (“PIPEDA”) when dealing with Personal Information (as defined by PIPEDA) that was obtained from HomeKeepAI or any Customer.
3. Fees; Terms of Payment
3.01 The Supplier acknowledges that HomeKeepAI shall not charge fees to the Supplier for use of the Platform for a period of twelve (12) months commencing on the Launch Date (the "No Fee Period"). Starting from the expiry of the No Fee Period, HomeKeepAI may institute such fee structure for the Supplier’s use of the Platform as HomeKeepAI may determine in its discretion, provided however that HomeKeepAI shall provide no less than three (3) months advance notice of such fees, and HomeKeepAI may change such fees from time to time thereafter upon no less than one (1) month advance notice of any such changes. For greater certainty, any new or revised fee structure shall not apply in respect of Platform Requested Services/Supplies that have already been accepted by the Supplier and are in progress as at the date of implementation of such new or revised fee structure. Any applicable fees so introduced or revised, including any additional fees for added functions or features for which the Supplier has opted in pursuant to section 1.05, are referred to in this Agreement as the "HomeKeepAI Fee", and are subject to any applicable PST and GST/HST.
3.02 Following implementation of the HomeKeepAI Fee, HomeKeepAI shall issue to the Supplier invoices for the HomeKeepAI Fee, if any, plus applicable PST and GST/HST, which shall be payable net 30 days. The Supplier acknowledges and agrees that HomeKeepAI shall be entitled to collect any applicable invoiced HomeKeepAI Fee from payments processed on behalf of the Supplier by the Payment Processing Services Provider and authorizes HomeKeepAI to direct the Payment Processing Services Provider to pay such amount to HomeKeepAI in satisfaction of the applicable HomeKeepAI Fee, and further agrees to provide such further confirmation or authorization as the Payment Processing Services Provider may require to effect same.
4. Indemnification; Limitation of Liability
4.01 The Supplier shall, at its own expense, defend, indemnify, and forever hold harmless HomeKeepAI, its successors and permitted assigns, and their respective officers, directors, agents, subcontractors and employees, from and against any and all losses, liabilities, obligations, penalties, claims, judgments, demands, suits, costs, damages and expenses (including, without limitation, fines, forfeitures, reasonable attorneys' fees, disbursements and administrative or court costs of any kind and nature) arising out of or in connection with:
(a) the Supplier's breach of this Agreement; or
(b) any claims brought by a Customer or any other party in respect of any Platform Requested Services/Supplies undertaken by the Supplier via the Platform including, without limitation, any warranty claims, claims for breach of contract, claims for damages to or loss or misappropriation of property, personal injury claims or claims related to loss of life, claims related to the conduct of the Supplier or its personnel, including negligence, harassment, discrimination, criminal or quasi-criminal activity or claims for invasion of privacy or misuse of personal information; or
(c) any claim that any Platform Requested Services/Supplies undertaken by the Supplier via the Platform, or any part thereof, violates the patent, trademark, copyright or other proprietary rights of any third party.
4.02 HomeKeepAI fully and completely disclaims any liability for any claims by the Supplier or any third party to the fullest extent permissible at applicable law. In the event of a claim whereby HomeKeepAI is not permitted by law to disclaim liability, in no event shall HomeKeepAI be liable for any claims made by the Supplier or any third party for any special, punitive, exemplary, indirect, incidental, or consequential damages including loss of business opportunities, anticipated savings, profits or revenues, whether or not the possibility of such damages or loss of opportunities, anticipated savings, profits or revenues has been disclosed to the Supplier in advance or could have been reasonably foreseen by HomeKeepAI, and HomeKeepAI’s liability for any and all direct damages shall not, in any event, in the aggregate exceed the total amount of the HomeKeepAI Fees actually paid to and received by HomeKeepAI in respect of the applicable Platform Requested Services/Supplies undertaken by the Supplier via the Platform in respect of which any such claim is made.
5. Confidentiality and Non-Solicitation
5.01 The Supplier acknowledges that during the term of this Agreement the Supplier will or may have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records and specifications owned or licensed by HomeKeepAI and/or used by HomeKeepAI in connection with the operation of its business and the Platform including, without limitation, HomeKeepAI's business and product processes, methods, customer lists, accounts and procedures, as well as similar information of the Customers (collectively, "Confidential Information"). The Supplier agrees that the Supplier will not disclose, sell, make available or otherwise communicate, in any manner, to any person or company, any Confidential Information, directly or indirectly, or use any Confidential Information in any manner, either during the term of this Agreement or at any time thereafter, except solely as required in the course of providing any Platform Requested Services/Supplies undertaken by the Supplier via the Platform.
5.02 The Supplier further agrees that it will not disclose the terms of this Agreement to any person without the prior written consent of HomeKeepAI other than to the Supplier's legal and accounting/financial advisors.
5.03 The Supplier shall take all reasonable precautions and exercise the same standard of care as used by the Supplier, but in any event no less than a reasonable standard of care, to prevent any third party from acquiring Confidential Information at any time. The Supplier shall not make copies of or otherwise reproduce Confidential Information unless there is a legitimate business need for such reproduction.
5.04 Throughout the term of this Agreement, and for a period of twelve (12) months following the expiry or any termination of this Agreement, the Supplier shall not, directly or indirectly, hire or offer to hire or entice away or in any other manner persuade or attempt to persuade any officer, employee, agent or supplier of HomeKeepAI, including any other Service/Supply Providers that provide services via the Platform, to discontinue or alter his, her or its relationship with HomeKeepAI.
5.05 Throughout the term of this Agreement, and for a period of twelve (12) months following the expiry or any termination of this Agreement, the Supplier shall not, directly or indirectly, solicit or entice away or in any other manner persuade or attempt to persuade any Customer to discontinue or alter his, her or its use of the Platform. For greater certainty, when communicating with and providing any Platform Requested Services/Supplies to any Customer, the Supplier shall not, and shall not attempt to, directly or indirectly, redirect the Customer away from the Platform or solicit services from the Customer directly without use of the Platform, whether consisting in whole or in part of the same services as requested by the Customer via the Platform or otherwise.
5.06 The Supplier will safeguard and positively promote, and shall refrain from making any negative public statements in respect of, the reputation of HomeKeepAI and its personnel during and after the term of this Agreement.
5.07 The Supplier will not, and will not attempt to, directly or indirectly, copy, modify, translate, reverse engineer, decompile, deconstruct, and will not create or attempt to create derivative works based on, in whole or in part, the Platform and artificial intelligence system including without limitation any software, source code, machine learning models or algorithms used in connection with and/or forming part of the Platform.
5.08 The parties hereto acknowledge that the development, maintenance and operation of the Platform and the provision of access to the Platform by HomeKeepAI for the benefit of the Supplier under this Agreement are of a special, unique, unusual, and extraordinary character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in any action at law, and the breach by the Supplier of any of the provisions of this Agreement will cause HomeKeepAI irreparable injury and damage. The Supplier expressly agrees that HomeKeepAI shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Supplier. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that HomeKeepAI may have for damages or otherwise. The various rights and remedies of HomeKeepAI under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.
5.09 The Supplier acknowledges that it has carefully read and considered all of the terms and conditions of this Article 5, including the restraints imposed upon it pursuant to Sections 5.04 through 5.07 inclusive. The Supplier agrees that said restraints are necessary for the reasonable and proper protection of the legitimate proprietary interests of HomeKeepAI and that each and every one of the restraints is reasonable in respect of the subject matter and length of time. All defences to the strict enforcement of this Article 5 against the Supplier are hereby waived.
6. Insurance
6.01 Throughout the term of this Agreement, the Supplier will obtain and maintain insurance against such perils, and in no less than such amounts, as a prudent business in Supplier's industry would ordinarily carry for such business, including, without limitation:
(a) business liability/general liability insurance covering the Supplier and all employees and personnel of the Supplier, in the aggregate amount of not less than $5,000,000.00;
(b) where applicable and industry standard for like services, vehicle, property and fire insurance and standard supplemental risk endorsements,
each such policy to provide adequate coverage for Customers to which the Supplier provides any Platform Requested Services/Supplies and shall have HomeKeepAI named as an additional insured. The failure by the Supplier to obtain or maintain adequate insurance coverage will not relieve the Supplier of any of its obligations to HomeKeepAI under this Agreement, including without limitation the obligation to fully indemnify and hold harmless HomeKeepAI in accordance with Section 4.01. The Supplier shall provide HomeKeepAI with confirmation that it has obtained and at such date maintains appropriate insurance coverage upon HomeKeepAI’s request.
7. Term and Termination
7.01 Subject to earlier termination in accordance herewith, the term of this Agreement shall commence as of the date hereof and shall continue until terminated by either party by giving thirty (30) days' prior written notice to the other party. Notwithstanding the foregoing, the Supplier may not issue notice of termination of this Agreement to HomeKeepAI unless and until any Platform Requested Services/Supplies undertaken by the Supplier via the Platform have been completed in full and there remain no further obligations of the Supplier to a Customer in respect of any Platform Requested Services/Supplies.
7.02 This Agreement may be terminated by HomeKeepAI at any time:
(a) immediately upon written notice by HomeKeepAI to the Supplier, in the event the Supplier fails to perform or is otherwise in default of any of the Supplier's obligations under this Agreement, and fails to remedy such failure or default within three (3) days of receipt of written notice from HomeKeepAI specifying the details of such failure or default; or
(b) immediately upon written notice by HomeKeepAI to the Supplier, in the event the Supplier: (i) becomes insolvent or is a party to any voluntary bankruptcy or receivership proceeding, or makes an assignment for the benefit of a creditor; (ii) becomes the subject of a petition for involuntary bankruptcy and such petition is not removed within fifteen (15) days; or (iii) ceases or threatens to cease to continue to operate its business in the ordinary course.
7.03 For greater certainty, in the event of termination of this Agreement, HomeKeepAI shall be entitled to receive any HomeKeepAI Fee due and outstanding for the period up to the date of termination. HomeKeepAI shall not be subject to any claims by the Supplier for any compensation or damages as a result of, or in respect of, any such termination.
8. Miscellaneous
8.01 It is understood and agreed between the parties that the Supplier is and shall be, in all events, an independent contractor, and nothing contained in this Agreement shall be construed as creating a joint venture, partnership or employment relationship between the parties. Neither party shall have any right or authority to create any obligation or duty, express or implied, on behalf of the other.
8.02 The Supplier recognizes and understands that it will be required to file appropriate tax returns and to remit taxes in accordance with all provisions of applicable federal and provincial laws, including in respect of provincial retail sales taxes and federal GST/HST. The Supplier hereby promises and agrees to indemnify HomeKeepAI for any damages or expenses incurred by HomeKeepAI as a result of the Supplier’s failure to make such required filings, remittances and payments, as applicable.
8.03 This Agreement, together with the Terms of Service and HomeKeepAI's Privacy Policy which are hereby incorporated by reference, constitute the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and preliminary agreements. Except as expressly contemplated by this Agreement and/or the Terms of Service, this Agreement may not be changed except in writing executed by all the parties. To the extent that any term or provision contained in this Agreement conflicts with or is inconsistent with the Terms of Service, the provisions of this Agreement will govern.
8.04 This Agreement may be assigned by HomeKeepAI, including to any successor of HomeKeepAI by merger, consolidation or acquisition of a substantial part of its assets. This Agreement shall not be assigned or otherwise transferred, in whole or in part, by the Supplier without the prior written consent of HomeKeepAI.
8.05 This Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective successors and permitted assigns.
8.06 If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be found to be invalid, void or unenforceable, such provision shall be limited as necessary to render it valid and enforceable and the remaining provisions and any application thereof shall continue in full force and effect without being impaired or invalidated in any way.
8.07 Except as otherwise expressly provided herein, any notice or other communication required or permitted to be given or made under this Agreement shall be in writing and shall be effectively given and made if (i) delivered personally, (ii) sent by prepaid courier service or registered mail, or (iii) sent by means of electronic communication, including any confidential electronic communications portal available through the Platform for such purposes, in each case to the applicable address set out below:
If to HomeKeepAI:
_____________________
_____________________
Email: _______________
Attention: ____________
If to the Supplier:
_____________________
_____________________
Email: _______________
Attention: ____________
8.08 This Agreement shall be deemed to be a contract under the laws of the Province of Manitoba and for all purposes shall be governed by and construed and enforced in accordance with the laws of the Province of Manitoba.
8.09 No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or be construed as a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement.
8.10 Those provisions of this Agreement that are intended to survive the expiration or early termination of this Agreement will survive, including, without limitation, Article 4 (Indemnification; Limitation of Liability), Article 5 (Confidentiality and Non-Solicitation) and Article 6 (Insurance).
8.11 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which when taken together constitute one and the same agreement. This Agreement may be executed and delivered by a party by electronic means, including by successful electronic delivery in portable document format (".pdf") or tagged image file format (".tif"), to the other party of a signature page hereof bearing the signature of that party or its proper officer(s) and the parties adopt any signatures received by electronic means, including DocuSign and Adobe Sign, as original signatures of the parties.
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the date first written above.
10263653 MANITOBA LTD.
Per:
If the Supplier is a corporation:
Per:
Print Name:
Print Title:
I have authority to bind the corporation.
If the Supplier is an individual:
Witness )
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Print Name:
