A. The Consultant is in a position of trust and has or may have access to confidential and secret information regarding the business affairs of the Client, and the Client is the sole and absolute legal and beneficial owner of such information;
B. The Client wishes to provide for, and the Consultant wishes to formally acknowledge, that all Software, designs, inventions, discoveries, ideas, suggestions, and improvements of interest to the Client which are conceived, made or developed by the Consultant for the Client while the Consultant is retained by the Client are to become and to remain the property of the Client;
C. The Client wishes to prevent the unauthorized disclosure of confidential and secret information, assignment of Software, designs, inventions, discoveries and improvements and to prohibit unreasonable competition by the Consultant, and the Consultant wishes to provide such assurances to the Client in respect of non-competition and confidentiality as may be required to allow the Client to retain the Consultant from time to time.
D. The Client wishes to retain the Consultant for, and the Consultant wishes to provide; Software development, Web/Mobile Application development, Web Service development, and Website development and design services, as an INDEPENDENT CONTRACTOR to the Client for the development, maintenance and support of existing and forthcoming commercial Software.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the parties hereto agree as follows:
ARTICLE ONE - INTERPRETATION
In this Agreement, including the premises hereto, unless there is something in the subject matter or context inconsistent therewith:
(a) “Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular Article, Section or other portion hereof and include any Agreement or instrument supplemental or ancillary hereto and the expression “paragraph”, “Section” or Article” followed by a number means and refers to the specified paragraph, Section or Article of this Agreement;
(b) “Confidential Information” means the following materials and information whether or not reduced to writing or whether or not patentable or protectable by copyright or trade mark which the Consultant receives or has access to, or has conceived or may conceive of, or has developed in whole or in part, directly or indirectly, in connection with the Consultant's service or work with the Client or otherwise through the use of any of the Client's facilities or resources, namely:
(i) the Intellectual Property;
(ii) such information as a director, officer or consultant of the Client may from time to time designate as being included in the expression “Confidential Information”;
(iii) information regarding production processes, marketing techniques and arrangements, mailing lists, purchasing information, pricing policies, quoting procedures, financial information, customer and prospect names and requirements, consultant, customer, supplier and distributor data and other materials or information relating to the Client's business and activities and the manner in which the Client does business;
(iv) information regarding any Internet domain name, website, web server, land or property which the Client may own, have option to acquire an interest in or may be considering acquiring an interest in;
(v) any materials or information related to the business or activities of the Client which are not generally known to others engaged in similar businesses or activities;
(vi) customer lists, customer ordering information or customer records;
(vii) all Software which are conceived, made or developed by the Consultant or currently owned by the Client, currently under development by the Client, planned for development by the Client or to which the Client has access including but not in limitation to Client’s customers, and wishes to keep confidential;
(viii) any information relating to Software now owned or controlled or planned by the Client; and
(ix) all ideas which are derived from or related to the Consultant's access to or knowledge of any of the above enumerate materials and information.
The Consultant acknowledges that the foregoing is intended to be illustrative only, and that other Confidential Information may currently exist or arise in the future and that the failure to mark any of the Confidential Information as confidential, proprietary or “Confidential Information” shall not affect its status as part of the Confidential Information under the terms of this Agreement.
(c) “Intellectual Property” means all registered and unregistered patents, copyrights, industrial designs and trade marks and all domain names, trade names, secret processes, trade secrets, engineering, design, process and operating information, inventions, developments, patent, trade mark, industrial design and copyright applications, Software, technical data and other scientific and technical information relating to any process or method now owned or controlled or planned by the Client relating in any way to the Client’s business and activities;
(d) “Person” means an individual, a Client, a partnership, a trustee or an unincorporated organization; and words importing persons have a similar meaning;
(e) “Software” means computer programs, mobile applications, databases, ecommerce solutions, websites, website code, web applications, website applications, web services, scripts, open and compiled source codes, object codes, routines, libraries, components, digital graphics, algorithms, specifications, flow charts and listings; and
(f) “Retainer” means upfront, upon completion or ongoing fees, lump sums, compensation, commissions, royalties or bonuses paid from Client to Consultant.
The Consultant acknowledges that the definition of Software is intended to be illustrative only, and that other terms may currently exist or arise in the future and that the failure to add such terms to the foregoing definition shall not affect its status as part of the Software under the terms of this Agreement.
1.2 Extended Meanings
Words importing the singular number include the plural and vice versa and words importing the masculine gender include the feminine and neuter genders and vice versa and words importing persons shall include individuals, partnerships, associations, trusts, unincorporated organizations and Clients and vice versa.
The division of this Agreement into Articles, Sections and paragraphs and the insertion in this Agreement of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
1.4 Applicable Law
This Agreement shall be interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
1.5 Time of Essence
Time shall be of the essence in this Agreement.
1.6 Entire Agreement
This Agreement constitutes the entire agreement between the parties and contains all of the representations, undertakings and agreements of the respective parties concerning the subject matter hereof. There are no verbal or other written representations, undertakings or agreements between the parties of any kind concerning the subject matter hereof.
ARTICLE TWO - TREATMENT OF INFORMATION
(a) The parties acknowledge and agree that the relationship between them is one of mutual trust and reliance.
(b) The Consultant acknowledges that, in and as a result of the Consultant's relationship with the Client, the Consultant shall have access to, make use of, acquire or add to information and knowledge, including the Confidential Information, relating to all aspects of the business of Client, which are confidential to and the exclusive property of the Client, the disclosure of any of which to the Client's competitors, customers, or the general public will be highly detrimental to the commercial interests of the Client.
(c) The Consultant acknowledges that the Client’s business interests cannot be properly protected from adverse consequences of the actions of the Consultant other than by the restrictions set forth in this Agreement.
(d) The Consultant acknowledges that without prior written notice from the Client, the Consultant cannot make reference to Client's websites, web applications, mobile applications, or Software, online or offline such as but not limited to; freelance websites, job websites, websites owned by Consultant, or websites with an affiliation to the Consultant.
(a) The Consultant shall not, except with the prior written consent of the Client, at any time during or following the term of the Consultant's relationship with the Client, directly or indirectly deal with, exploit, disclose, divulge, reveal, report, publish, transfer or use for any purpose any of the information, including the Confidential Information, which has been obtained or disclosed to the Consultant as a result of the Consultant's relationship with the Client to any person or entity. Disclosure or use of the Confidential Information by the Consultant in breach of this Agreement shall be deemed to cause the Client irreparable harm for which damages are not an adequate remedy.
(b) The Consultant will not manually, electronically or mechanically copy or otherwise reproduce the Confidential Information, and in the event the Consultant ceases for any reason to be retained by the Client, the Consultant agrees forthwith upon this termination to return to the Client every copy of any Confidential Information including all Software, notes, records, drawings, descriptions, manuals, other papers, tapes, computer discs and any other media which contain any such Confidential Information in the possession or under the control of the Consultant at that time or shall destroy such Confidential Information and copies as directed by Client and furnish proof of their destruction. In the event of a loss or theft of any item containing such Confidential Information, the Consultant shall promptly notify Client in writing.
(c) The Consultant represents and warrants that any information disclosed by the Consultant to Client is not confidential or proprietary to the Consultant.
2.3 Proprietary Rights
(a) No license under any patent, trade mark, industrial design copyright of Client, or any right respecting the Confidential Information other than expressly set out herein, is granted to the Consultant under this Agreement by implication or otherwise.
(b) The Consultant agrees to immediately disclose to Client all Confidential Information developed in whole or in part by the Consultant during the term of the Consultant's relationship with the Client and to assign to Client any right, title or interest the Consultant may have in the Confidential Information. The Consultant agrees to execute any instruments and do all other things reasonably requested by Client both during and after the Consultant's relationship with Client in order to vest more fully in Client all ownership rights in those items transferred by the Consultant to Client. The Consultant agrees that any retainer received from
Client shall be full consideration for any and all services performed by the Consultant.
(a) The Consultant shall indemnify and keep indemnified Client, its successors and assigns against any liability for any losses, damages, costs and expenses of whatever kind or nature, including legal expenses on a solicitor and his own client basis, which Client may incur by reason of any misrepresentation or breach by the Consultant of any warranty, covenant and agreement made or contained in this Agreement and any and all actions, suits, proceedings, claims, demands or judgments incidental thereto.
(b) The Consultant agrees that if the Consultant shall violate any of the Consultant's covenants or agreements under this Agreement, Client shall be entitled to an accounting and repayment of all profits, compensation, royalties, commissions, remunerations or benefits which the Consultant directly or indirectly shall have realized or may realize relating to, growing out of, or in connection with any violations; the remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which the Client is or may be entitled at law or in equity or otherwise under this Agreement.
The Consultant agrees that in the event of a breach or apprehended breach by the Consultant of any of the terms or conditions of this Agreement, damages may be difficult or impossible to determine and that specific performance or injunction (mandatory or prohibitive), as appropriate, shall be available as remedies to Client, in addition to any other remedies provided at law, in equity, by statute or otherwise; and the Consultant hereby waives the right to, and agrees that it shall not assert or plead that Client has an adequate remedy in damages or at law.
2.6 No Prior Agreements
The Consultant represents that it is not now a party to and shall not enter into any agreement or assignment in conflict with this Agreement.
ARTICLE THREE - NON-COMPETITION
3.1 The Consultant covenants that during the term of this Agreement and of a period of three (3) years following the termination of the Consultant's contract with Client the Consultant will not for any reason, directly, or indirectly, either as an individual or as a partner or joint venturer or as a consultant, employee, principal, organization, syndicate, company or Client, or in any manner, carry on, be engaged in, concerned with, interested in, advise, lend money to, guarantee the debts or obligations of, permit his name or any part of it to be used or employed by any person, business, firm, association, syndicate, company, organization or Client concerned with or engaged or interested in a business which is the same as, or competitive with, the business of Client, namely; reservation and or booking and or reminder software and solutions, nor will the Consultant solicit or accept business with respect to products or services competitive with those of Client from any of the Client's customers, wherever situated excluding the role of a freelance developer with no additional interest or gain beyond the typical role of a freelance developer.
3.2 Covenant Not to Hire Employees
The Consultant covenants and agrees that, for the period commencing on the date of the Consultant's termination of contract, for any reason whatsoever, and ending three (3) years after the Consultant's termination of contract with Client, the Consultant shall not, directly or indirectly, hire or engage or attempt to hire or engage any individual who shall have been an employee, contractor or subcontractor of the Client, whether for or on behalf of the Consultant or for any entity in which the Consultant shall have a direct or indirect interest (or subsidiary or affiliate of any entity, whether as a proprietor, partner, co-venturer, financier, investor or stockholder, director, officer, employer, employee, servant, agent, representative or otherwise).
ARTICLE FOUR – SERVICES TO BE PROVIDED
4.1 The Consultant shall provide Software programming, Web/Mobile Application development, Website development and design, and Web Services development required by the Client for Client and or Client’s customers in the manner determined by the Client in consultation with the Consultant. The parties hereto acknowledge and agree that the Consultant is not required to provide its programming services exclusively to the Client and may provide its programming services to other entities, provided the Consultant complies with the terms of this Agreement. The Consultant represents that it is not now a party to and shall not enter into any agreement or assignment in conflict with this Agreement.
4.2 It is understood and agreed that in entering into this Agreement and in providing its Software programming, Web/Mobile Application development, Website development and design, and Web Services development pursuant to this Agreement, the Consultant is deemed to be an independent contractor and not under the control and supervision of the Client and nothing contained in this Agreement shall contemplate or constitute the Consultant as an employee, agent, partner, shareholder, or representative of the Client for any purpose.
(a) The Consultant will provide Software programming, Website development and design, Web/Mobile Application development and Web Services development and support in a manner of efficiency and quality.
(b) The Client will choose all programming languages unless otherwise mutually agreed upon by Client and Consultant.
(c) The Consultant will write, assemble or code Software, Web/Mobile Applications, Websites and Web Services based on English language and standards.
(d) The Consultant will provide sufficient source code commenting and external documentation in plain English as deemed necessary by the Client.
(e) The Consultant will provide Software programming, Web/Mobile Application, Website development and design, and Web Services development in a manner compatible with the latest supporting and/or required technologies at the time of development.
(f) The Consultant, at its own expense, will acquire any necessary computer hardware, third-party software and tools to provide the services outlined in this Agreement.
(g) The Consultant will deliver on a regular basis, in an organized manner, for all development in progress, each of the following: tested and functioning Software, Web/Mobile Applications, Websites, and Web Services source code, and utilities created by Consultant including but not in limitation to compilers.
(h) The Consultant will respond with a solution to bugs and inefficiencies that are necessary for the intended operation of the Software, Web/Mobile Application, Website, and Web Service in a timely manner not to exceed forty-eight (48) hours from the time reported to Consultant excluding times when the Consultant is truthfully and sincerely incapable of responding.
(i) The Consultant agrees to work within the confines of any Graphical User Interface (GUI) designs and specifications provided or suggested by the Client.
(j) The Consultant assures the Client all Software, Web/Mobile Applications, Websites, and Web Services, complete or incomplete, when delivered to the Client, will never electronically or otherwise communicate with other Software, computers, servers, networks, portable devices or electronic systems of any kind with the exception of the Client’s website, database and web server unless otherwise approved by Client.
(k) The Consultant assures the Client all Software, Web/Mobile Applications, Websites, and Web Services, complete or incomplete, will be free from Viruses, Trojans, Worms and any other form of malicious code.
4.4 The Consultant acknowledges, accepts and agrees whether or not conceived, made or developed by the Consultant all Software, Web/Mobile Applications, Websites, and Web Services, complete or incomplete, development in progress, scripts, utilities and tools created for the Client are to be and will remain the exclusive property of the Client.
ARTICLE FIVE – PAYMENT
5.1 The Client shall pay the Consultant upon completion of each completed Software, Web/Mobile Application, Website, and Web Service within thirty (30) days of the first stable release. Thereafter, the Client shall pay the consultant every thirty (30) days for upgrades and new versions of the same Software, Web/Mobile Application, Website, and Web Service. The amount(s) to be paid will be determined and agreed upon by Client and Consultant in advance and prior to commencement. On termination of this Agreement, for any reason whatsoever, the obligation of Client to pay the Consultant shall be honoured unless the Consultant breaches this agreement.
5.2 No deductions will be made from any payment paid to the Consultant on account of income tax due to Revenue Canada or the Consultant’s governing income tax body, and payments to Revenue Canada or the Consultant’s governing income tax body on account of income tax are to be the sole responsibility, financially or otherwise, of the Consultant.
ARTICLE SIX - GENERAL PROVISIONS
6.1 This Agreement is considered by both Client and the Consultant as a binding contract and shall remain in effect until terminated. Without restricting the generality of the foregoing this Agreement shall survive any termination of the Consultant's services to the Client.
If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If, moreover, any one or more of the provisions contained in this Agreement, shall, for any reason, be held to be excessively broad as to
time, duration, geographic scope, activity or subject, it shall be construed to be enforceable to the extent compatible with the existing law as it then appears. The Consultant agrees that the breach or allied breach by Client of (a) any covenant contained in another agreement (if any) between Client and the Consultant or (b) any obligation owed to the Consultant by Client, shall not affect the validity or enforceability of the covenants and agreements of the Consultant set forth in this Agreement.
The terms and provisions of this Agreement shall enure to the benefit of and be binding upon the Consultant and upon the Client and its successors and assigns. As used in this Agreement, “Client” shall also include any Client or entity which is a parent, subsidiary or affiliate of Client.
6.4 Reasonableness of Restrictions
The Consultant has carefully read and considered the provisions of this Agreement and, having done so, agrees that the restrictions set forth herein are fair and reasonable and are reasonably required for the protection of the interests and business of the Client.
All notices required pursuant to this Agreement shall be delivered by hand to the party for which it is intended, sent by telex, facsimile, telegram, or similar form of transmitted message or by prepaid courier directed to such party at the following address, respectively:
(a) if to the Client:
25 Newkirk Road, Unit 22
Richmond Hill, Ontario, Canada, L4C 3G4
Telephone: +1 2894074067
(b) if to the Consultant:
As entered below, by the Consultant
or at such other address as either party may stipulate by notice to the other. Any notice delivered by hand or prepaid courier shall be deemed to be received on the date of actual delivery thereof. Any notice so sent by telex, facsimile or similar form of transmitted message shall be deemed to have been received on the next day following transmission.
Any consent or waiver, express or implied, by a party to or of any breach or default by the other party hereto in the performance of such other party of its obligations hereunder shall not be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligations of such other party. Failure on the part of a party to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by such first mentioned party of its rights hereunder.
This Agreement may not be modified or amended except with the written consent of the parties.
6.8 Further Assurances
The Consultant agrees that it will from time to time at the reasonable request of another party execute and deliver such assignments, instruments and conveyances and take such further action as may be required to accomplish the purposes of this Agreement.
6.9 Independent Legal Advice
The parties each acknowledge having obtained their own independent legal advice or, having had sufficient time to obtain the same, have waived the same with respect to the terms of this agreement prior to its execution.
This Agreement may be executed in counterparts each of which is deemed to be an original but all of which taken together shall constitute one Agreement, binding on the parties hereto, notwithstanding that all parties are not signatory to the same counterpart.
ARTICLE SEVEN - TERMINATION
7.1 The parties may terminate this contract with thirty (30) days notice in writing to the other party. On termination of this Agreement, for any reason whatsoever, the obligation of Client to pay the Consultant shall be honoured unless the Consultant breaches this agreement. This Agreement shall survive any termination of the Consultant's payments from the Client or the Consultant’s services to the Client.