THIS EMPLOYMENT AGREEMENT (the "Agreement") made as of the day of , 2014.
a corporation incorporated under the laws of the Province of
(the "Corporation" or the "Employer")
- and -
an individual resident in ,
WHEREAS the Employee is being offered employment by the Corporation on the following terms and conditions as set out in this Agreement;
AND WHEREAS the Employee wishes to provide services to the Corporation as an employee on the terms and conditions set out in this Agreement;
NOW THEREFORE in consideration of the covenants and agreements set out in this Agreement and other and good and valuable consideration, which the parties acknowledge and agree is freely and voluntarily given, the parties agree and confirm as follows:
1.1 The Corporation confirms the appointment of the Employee to the position of .
1.2 The Employee agrees to perform the following duties and responsibilities to the best of the Employee's abilities (the "Position"), which the Employee warrants and represents the Employee has the skills and abilities to perform: [list responsibilities]
1.3 The Employee agrees to perform such other duties and responsibilities as are commensurate with the Employee's Position at the Corporation or as are specifically required by the Corporation in relation to the Position or otherwise. The Employee further agrees that the Employee's title, reporting relationships, duties and responsibilities may, on reasonable consultation, be changed by the Corporation as it deems appropriate for the benefit of the Corporation.
2.1 This Agreement and the appointment of the Employee herein, shall commence on ________________ and continue for an indefinite period (the "Term"). Notwithstanding the Term, the parties agree this Agreement may be terminated by either party at any time during the Term pursuant to Article 7 herein.
3.1 The remuneration of the Employee for the Employee's services shall be a base salary of $______ per month. The remuneration of the Employee shall be payable at time periods as are adopted by the Corporation from time to time for the payment of employee remuneration, and is subject to all statutory and other deductions. 3.2 The Corporation may provide the Employee with bonus payments at the Corporation's sole discretion, if or when the Corporation deems such bonus payments advisable. Under no circumstances will the Employee be considered for the payment of any bonus if the Employee is not employed by the Corporation, for any reason, prior to the payment of a bonus.
4.1 The Employee shall participate in all employee health and welfare benefit plans in effect from time to time (the "Employee Benefits") which the Corporation provides for its employees generally. Attached to this Agreement as Schedule "A" is a list of Employee Benefits currently provided by the Corporation. The Corporation reserves the right to unilaterally revise the terms of the Employee Benefits or to eliminate any Employee Benefits altogether as it deems appropriate. The Employee Benefits will be provided in accordance with the formal plan documents or policies, and any issues with respect to entitlement or payment or benefit under any of the Employee Benefits will be governed by the terms of such documents or policies established by the Employee Benefits.
4.2 The Employee shall be reimbursed by the Corporation for reasonable and necessary business expenses incurred by the Employee in the performance of the Employee's duties and in accordance with the Corporation's expense policy in effect from time to time.
5.1 The Employee will be entitled to _____ days paid vacation per year to be taken at such time or times as is convenient to both the Employee and the Corporation.
6.1 The Employee, throughout the Term of this Agreement, shall faithfully serve the Corporation and devote the Employee's full time and attention to the business and affairs of the Corporation and shall not, without the consent in writing of the Corporation, undertake any other business or occupation or become a director, officer, employee or agent of any other association, company, firm, partnership or individual.
TERMINATION OF EMPLOYMENT:
7.1 The Employee and the Corporation agree that at any time during the Term of the Agreement, the Agreement may be terminated by the Corporation immediately for just cause without any further payment or obligation to the Employee. For the purposes of this Agreement, just cause shall include:
- any material breach of the provisions of this Agreement by the Employee;
- failure by the Employee to carry out the Employee's duties and responsibilities under this Agreement and in accordance with the law or to follow the directions of the Employee's Manager;
- conduct of the Employee which, in the discretion of the Corporation, tends to bring the Employee or the Corporation into disrepute;
- a material non-disclosure or misrepresentation by the Employee in carrying out the Employee's duties and responsibilities under this Agreement or in regard to the terms of the Agreement;
- failure of the Employee by reason of mental or physical incapacity to be able to substantially perform the Employee's duties and responsibilities under this Agreement, with reasonable accommodations if necessary, for a period of six (6) months, subject to any greater requirement which might become necessary pursuant to the Ontario Human Rights Code;
- the death of the Employee; and
- any and all omissions, commissions or other conduct which would constitute just cause, at law, in addition to the specified causes herein.
7.2 [Consider the fair, reasonable and legally enforceable means of termination]
7.3 The Employee may terminate this Employment Agreement, at any time, by providing the Corporation with two (2) weeks' notice, in writing. Upon the termination of this Agreement by the Employee, the Employee acknowledges that the Corporation shall have no further or other obligation to the Employee pursuant to the Employee's employment, the termination of the Employee's employment or the termination of this Agreement.
CONFIDENTIALITY AND ASSIGNMENT OF PROPERTY RIGHTS:
8.1 The Employee agrees to hold in the strictest of confidence the Corporation's confidential proprietary information and to assign all property rights in and to any work or product of the Employee's work as set out in Schedule "B" to this Agreement. The Employee further agrees to execute a separate agreement in the form and substance of the agreement appended as Schedule "B" to this Agreement, if requested.
9.1 Any notice required or permitted to be given pursuant to any provision of this Agreement shall be in writing, and shall be sufficiently given if delivered personally or sent by telecopier (fax) or mailed by pre-paid registered or certified mail to the Employer or Employee at their last known address.
10.1 In the event that any provision or part of this Agreement shall be deemed void or invalid by a court of competent jurisdiction, the remaining provisions or parts shall be and shall remain in full force and effect.
11.1 This Agreement constitutes the entire agreement between the parties with respect to the employment of the Employee. Any and all previous agreements or representations, written or oral, express or implied, between the parties or on their behalf, relating to the employment of the Employee by the Corporation are waived and/or terminated and cancelled. Each of the parties releases and forever discharges the other of and from all manner of actions, causes of action, claims and demands whatsoever, under or in respect of any such agreement or representation.
MODIFICATION OF AGREEMENT:
12.1 Any modification to this Agreement must be in writing and signed by the parties, or it shall have no force and effect and shall be void.
13.1 This Agreement shall be governed in accordance with the laws of the Province of Ontario.
ACKNOWLEDGEMENT OF AGREEMENT:
14.1 The Employee acknowledges that the Employee has been advised to obtain independent legal advice in connection with the matters referred to in this Agreement, and has obtained, or alternatively has voluntarily chosen not to obtain, independent legal advice in connection with the matters referred to in this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the parties to it, as of this __________ day of ____________, 20__.
PROPERTY RIGHTS IN WORK/PRODUCT
SECTION 1 - PROPERTY OF EMPLOYER
1.1 Upon termination of the Employee's employment, the Employee shall leave with the Employer all property of the Employer. Without limiting the generality of the foregoing, such property shall include:
- designs, components, products, concepts in development and tooling, client lists, prospect lists, promotional literature, program and quality control materials, policy and procedure manuals, planning and strategy information, any proposals, price lists and pricing policies, activity reports, staff directories, credit cards, keys to premises, security passes, computer equipment and software and any copies, summaries, or notes of the above.
SECTION 2 – CONFIDENTIALITY
"Confidential Information" means information in any form, not generally known to the public, disclosed to or acquired by the Employee directly or indirectly from the Employer or any clients, business partners or affiliates of the Employer (including, without limitation, through access to the Employer's place of business and contact with the Employer's customers and/or suppliers) during the term of the Employee's employment with the Employer, including, without limitation:
- any design or prototype of any product or method or process of manufacturing or producing such product or any data, programs or codes or other information relating to any product manufactured, produced or supplied by the Employer and/or its affiliates;
- any source of supply of products or raw materials, terms available from suppliers of products or raw materials, information supplied to suppliers of products or raw materials and any terms of any contractual arrangements between the Employer and/or its affiliates and the supplier of any products or raw materials;
- confidential methods of operation, which includes all information relating to the Employer's unique marketing programs, unique methods, unique research and development, unique service systems, unique products and services, and trade secrets;
- information pertaining to any intellectual and industrial property rights of the Employer and/or its affiliates including information relating to all inventions, designs, ideas, works, creations, developments, programs, plans, codes, drawings, sketches, compilations of information, analyses, experiments, data, formula, formulations, specifications, research, know-how, test data, technical data, methods, processes, procedures, techniques, practices, molds, jigs, dies, prototypes, products, (including without limitation parts and accessories hereof) samples, equipment, tools, machines and includes any modifications or improvements hereto;
- all information regarding the Employer's existing customers and clients, including customer lists, contracts, prices, invoices, computer printouts and other similar information;
- all information concerning the Employer's potential customers and clients, including mailing lists, prospects and other similar information;
- any information about the business of the Employer which is not known to the public or competitors, or any other information which gives the Employer an opportunity to obtain an advantage over competitors who do not know such information;
- financial information, including the Employer's costs, sales, income, profits and other similar information;
- business opportunities, including all ventures considered by the Employer, whether or not such ventures are pursued;
- personnel information, including the names of employees and applicable remuneration and benefit policies;
- computer programs and procedures relating to the Employer's business and other similar information;
- all information relating to the research, developments, systems, operations, of the Employer or its business partners or affiliates;
- all information received from any clients, business partners or affiliates of the Employer;
- all information specifically designated by the Employer as confidential;
- all information specifically designated by a client, business partner or affiliate of the Employer as confidential; and
- all information required to be maintained in confidence by the Employer pursuant to an agreement with a client, business partner, associate or other person or arising by operation of law.
"Confidential Information" shall not include anything which the Employee can demonstrate by documented evidence was known to the Employee prior to the date of the commencement of the Employee's employment with the Employer or which is or which becomes part of the public domain (provided that such information does not become part of the public domain due to any breach by the Employee of any the Employee's obligations of confidentiality to the Employer and/or its affiliates) or which, following the termination of the Employee's employment is lawfully and in good faith obtained by the Employee on a non-confidential basis from a third party as shown by documentation sufficient to establish the third party as the source of the information provided that such third party was not under an obligation to treat such information in a confidential manner and had a lawful right to make such disclosure.
2.1 Receipt of Confidential Information: The Employee acknowledges that during the course of the Employee's employment with the Employer, the Employee has acquired and will continue to acquire or have access to Confidential Information of the Employer, and that the said Confidential Information could be used to the detriment of the Employer. Accordingly, the Employee covenants and agrees that during the course of the Employee's employment with the Employer and at all times after the termination of the Employee's employment with the Employer, regardless of how that termination should occur, the Employee:
- shall exercise the utmost diligence to ensure that the Confidential Information is kept in confidence and in trust for the benefit of the Employer and/or its affiliates;
- shall not gratuitously or otherwise, use any Confidential Information for the Employee's own purposes or benefit, or for the purposes or benefit of any other person other than the Employer;
- shall not divulge, communicate or disclose to any person any such Confidential Information other than such disclosures as are required to be made by the Employee in the due and proper performance of the Employee's duties of employment with the Employer or, are otherwise consented to in writing by the Employer or are required by law;
- shall not copy, reproduce, store, extract or make notes of any Confidential Information other than in the due and proper performance of the Employee's duties of employment with the Employer.
2.2 Mandatory Disclosure of Confidential Information: In the event that the Employee shall be legally compelled or required by a court of competent jurisdiction to disclose all or any part of the Confidential Information, the Employee shall immediately notify the Employer so that the Employer may determine whether or not to seek a sealing order, a protective order or any other appropriate remedy. If a sealing order, a protective order or other appropriate remedy is not obtained before such disclosure is required, the Employee shall disclose only those portions of the Confidential Information in question which the Employee is advised by written opinion of counsel (to be addressed to the Employee and to the Employer) that the Employee is legally required to disclose and will exercise the Employee's best efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information.
2.3 Ownership of Confidential Information: The Employee hereby acknowledges and confirms that the Confidential Information is and shall remain the sole and exclusive property of the Employer and its affiliates, as the case may be, regardless of whether such Confidential Information was generated or developed by the Employee (acting alone or in conjunction with others) or by others and regardless of whether such C.I. was generated at the Employer's premises or using Employer's resources. The Employee agrees that upon any request by the Employer from time to time during the term of the Employee's employment with the Employer, and upon termination of the Employee's employment with the Employer for whatever reason and howsoever arising, the Employee shall promptly return and deliver to the Employer all tangible embodiments of any Confidential Information in the Employee's possession or under the Employee's control (including, without limitation, documents, manuals, drawings, letters, blueprints, lists, data, records, computer programs, codes, materials, prototypes, products, samples or reports and any notes or analysis hereof [whether prepared by such party alone or in conjunction with others or prepared by others]) and all copies or reproductions of same, and the Employee shall delete such Confidential Information from all retrieval systems and databases (other than those belonging to the Employer) or destroy same as directed by the Employer. The Employee shall within 5 Business Days of the termination of the Employee's employment with the Employer deliver to the Employer a statutory declaration confirming that the Employee has complied with the provisions of the Employee's paragraph 8.3.
2.4 Obligations Cumulative: The obligations contained herein are in addition to, and not in substitution for, any other obligations of confidentiality which the Employee may have to the Employer and/or its affiliates (including, without limitation, contractual, fiduciary or otherwise) arising out of the employment of the Employee by the Employer or the performance by the Employee of the Employee's duties of employment, or otherwise.
SECTION 3 - INTELLECTUAL PROPERTY
"Intellectual Property" shall mean any and all results and proceeds of the Employee's services during the term of the Employee's employment including, without limitation, any and all inventions, improvements, discoveries, materials, documentation, ideas, concepts, specifications, research, know-how, test data, samples, plans software, hardware, circuit topography, mask works, formulae, formulations, designs, artwork, literary material, procedures, techniques, practices or processes, of a copyrightable, patentable or proprietary nature made, conceived, created or developed by the Employee during the term of the Employee's employment, either solely or jointly with others, as part of or in the performance of such employment or:
- with the use of the Employer's time, equipment, materials, supplies or facilities; or
- related to or suggested by trade secret information, other private or confidential matters acquired during the term of the Employee's employment, the business of the Employer or the Employer's actual or demonstrably anticipated processes or research and development.
3.1 Disclosure of Intellectual Property: The Employee agrees to disclose promptly and fully and in confidence to the Employer or its nominee, any and all Intellectual Property.
3.2 Ownership of Intellectual Property: Except as expressly provided in subparagraph 3.3 hereof, the Employee hereby confirms, acknowledges and agrees that all Intellectual Property shall be the sole and exclusive property of the Employer or its nominee and may be registered, patented or otherwise protected by the Employer in the name of Employee, the Employer, or its nominee.
3.3 Assignment: The Employee hereby irrevocably transfers and assigns to the Employer any and all right, title and interest in all Intellectual Property, free and clear of any and all liens, claims, security interest, encumbrances or equities of any kind or nature. Inventions, improvements or discoveries produced entirely in the Employee's own time and which do not relate:
- to the business of the Employer or its affiliates; or
- to the Employer or its affiliate's actual or demonstrably anticipated processes, research or development; or
- which do not result from any work performed by the Employee for the Employer or its affiliates;
shall remain the Employee's sole and exclusive property, and although not subject to assignment hereby, remain subject to disclosure to the Employer by Employee.
3.4 Agreement to Execute Documents and Perform Acts: Upon the request of the Employer, either during or after the Employee's employment, the Employee will execute all further documents and papers and do all further acts and things pertaining to such Intellectual Property and the copyright, patent, trade-mark, trade secret or other protection hereof as the Employer may from time to time request.
3.5 Waiver of Moral Rights: The Employer may edit, delete from or modify the Intellectual Property in any manner, and the Employee expressly waives the Employee's moral rights (if any) in and to the Intellectual Property and its constituent elements. Further, the Employee agrees not to institute any action on the grounds that the use of such Intellectual Property or any such constituent elements constitutes an infringement of the Employee's moral rights, or a reflection on the Employee's reputation.
3.6 Assistance by Employee: The Employee agrees to assist the Employer and its nominee, at the Employee's expense, during and after the Employee's employment in every proper way:
- to obtain for the Employer, patents, copyrights or other protection, as the case may be, for the Intellectual Property (other than those expressly excluded pursuant to the terms of subparagraph 3.3 above) in any and all jurisdictions; and
- in any controversy or legal proceeding relating to the Intellectual Property or to the patents, copyrights or other protected rights arising or resulting herefrom.
3.7 Representations and Warranties regarding Intellectual Property: The Employee represents and warrants that:
- there is at present no Intellectual Property not otherwise included in a patent, trademark, copyright or other protected form or included in an application herefor, which was conceived, discovered, created or developed by the Employee, whether jointly or singly, before entering the employ of the Employer which the Employee desires to remove from the operation of this Agreement; and
- he has no agreement with or obligation to others in conflict with the Employee's obligations under this Agreement.