EMPLOYEE CONFIDENTIALITY, NON-
DISCLOSURE AND NON-COMPETITION AGREEMENT
This agreement is made effective on the _22_ day of __March__, 2001.
BETWEEN:
CORMAX BUSINESS SOLUTIONS INC. &
EXPANDED SYSTEMS SOLUTIONS INC.
(the "Corporation")
- and -
__________Grahame Xxxxxxxxx _____________
(the "Employee")
WHEREAS, the Employee is desirous of entering into an association with
the Corporation and the Corporation is desirous of being associated with the
Employee.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the parties agree as follows:
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"Agreement" - means this employee Confidentiality, Non-Disclosure and
Non-Competition Agreement made effective the __22__ day of
____March_____, 2001.
"Client" - means those persons, firms or corporations which have
requested, or to whom the Corporation has made a proposal to provide
goods, services, information or technical expertise whether for
remuneration or not; and specifically includes the identity or name of
such client;
"Employment Agreement" - means that Employment Agreement between the
Corporation and the Employee dated the __22__ day of ___March___, 2001.
"Functional specifications" - means the functional specifications
prepared by or provided to the Corporation for use in the design of
Programs written or to be written for a client and includes menu and
screen designs, hardware system analysis, flowcharts, algorithms,
database design, specifications, manuals, printouts, notes,
annotations, lay-outs, cards, card decks, charts and other like
material and documentations, together with all included information,
and know-how (technical or otherwise);
"Implementations plans" - means the time schedules for the completion
of proposals, projects or the preparation and delivery of programs or
services by the Corporation;
"Information" - means programs, functional specifications,
implementation plans, operating manuals, trade secrets, proprietary and
confidential information of the Corporation (which specifically
includes clients) together with any and all other information disclosed
to the Employee by the corporation which relates to the past, present
and future research, development and business activities of the
Corporation or its clients;
"Operating manuals" - means the operational and technical manuals
prepared by the Corporation which describe overviews of the operation
of the Functional specifications and Programs and includes instruction
to users and/or technicians;
"Programs" - means any application or operating system software,
firmware, programs or portions thereof, user interfaces, programmers
libraries of routines and subroutines, etc. written, enhanced or
assembled by the Corporation;
"Services" - means any activities carried on by the Corporation in the
performance of its business obligations, whether or not such services
are provided by the Corporation to any client; "Source Code" - means
the source codes of the Programs in either eye-readable form in the
language or languages used for the programs or in machine readable
form (whether complied or not);
"Trade Secrets" - means that information used by the Corporation which
may be available, or disclosed by the Corporation or obtained through
observation or examination of the Corporation's customers or suppliers,
but which information is not disclosed to clients or third parties.
2. AGGREEMENT AS A CONDITION OF ASSOCIATION
As a condition of the association of the undersigned, the Corporation
required the undersigned to agree to protect the confidentiality of the
business of Cormax and of the Information obtained through association
with the Corporation which relates to the Corporation or its clients.
This Agreement contains the terms, obligations, duties and covenants
which are intended to insure this confidentiality.
3. WARRANTIES AND REPRESENTATIONS
3.1 The Employee warrants, covenants and agrees to protect the
confidentiality of the Information and the business carried on by the
Corporation and of the nature and particulars of the work the Employee
may be required to perform for the Corporation or its clients,
including the identity of such clients and suppliers and any
information the Corporation has received from the other sources which
the Corporation is obligated to treat as confidential or proprietary.
If there is any question as to what comprises such confidential or
proprietary information, the Employee agrees to immediately inform a
director or officer of the Corporation.
3.2 The Employee warrants and represents to the Corporation:
(a) that during the course of the Employee's employment with the
Corporation under the Employment Contract and for that further
period specified in Section 4.5 of this Agreement, the
Employee agrees always to act in good faith and in the best
interest of the Corporation;
(b) the Employee is not currently bound by any other association
or engagement or agreement, restrictions or obligations which
do, or would, in any way interfere or be inconsistent with the
services to be furnished by the Employee to the Corporation
under the Employment Agreement, in whatever capacity;
(c) the Employee is free to enter into and remain in association
with the Corporation in the capacity outlined in the Employ-
ment Agreement;
(d) the services and work-product the Employee provides to the
Corporation will be original with the Employee, or derivative
of the Corporation's business, and that nor portion of such
services or work-product, or its use or distribution by the
Corporation, will violate or is protected by the right, title,
interest or similar right of any third person or entity.
3.3 The Employee warrants and represents to the Corporation that the
Employee is capable of entering into this Agreement with the
Corporation in every and all respects.
4. NON-DISCLOSURE INFORMATION
4.1 While employed by the Corporation under the Employment Contract, and
for that further period specified in Section 4.5 of this Agreement, the
Employee shall not disclose or use the information except as required
in the Employee's performance of his duties to the Corporation.
4.2 While employed by the Corporation, and for that further period
specified in Section 4.5, the Employee shall take all reasonable
precautions to prevent any other person or entity with which the
Employee is or may become associated as supervisor, employee, owner or
otherwise from acquiring such Information from or through the Employee
and / or using or divulging such Information at any time.
4.3 Information as used herein shall not mean to refer to information:
(a) previously known to the Employee without obligations of
confidence;
(b) without breach of this Agreement, is publicly disclosed either
prior or subsequent to the Employee's receipt of such information by
or from the Corporation; or
(c) is rightfully received by the Employee from a third party without
obligation or confidence.
4.4 In the event of the loss of any item containing such Information, the
Employee shall promptly notify the Corporation in writing of such loss,
describing the item and its contents.
4.5 At any time from and after the date the Employee ceases to be employed
by the Corporation regardless of the reason or cause for the cessation
of employment, the Employee agrees to hold all such Information in
trust and confidence for the Corporation and not to use such
information other than for the benefit of the Corporation and the
determination of what constitutes a benefit of the Corporation shall be
in the sole opinion of the Corporation.
4.6 Except as may be authorized in writing signed by an officer or director
of the Corporation during such period of time as set out in Section
4.5, the Employee agrees not to disclose or divulge any Information, by
publication or otherwise, to any person or entity.
4.7 Promptly upon cessation of the Employee's employment by the Corporation
in whatever capacity and for whatever or cause, the Employee shall give
to the Employee's supervisor or to an officer or director of the
Corporation all Information embodied in written or descriptive form,
including but not limited to originals and copies thereof, drawings,
blueprints, descriptions, lists, charts, graphs, codes, and all other
papers, documents, tapes or any other media which contain any such
Information.
5. NON-COMPETITION
5.1 While the Employee is employed by the Corporation the Employee agrees
to not, without the written consent of the Corporation first had and
obtained, which consent may be arbitrarily and unreasonably withheld:
(a) work independently, or as a part-time or full-time employee of
an independent contractor, for or as a consultant to any
person or entity, who or which directly competes with the
Corporation in respect to business clients, or information in
which the Corporation does business or in which the
Corporation had or has invested time, effort or money
(referring to that time during which the Employee was employed
by the Corporation); or
(b) either directly or indirectly, as principle or agent, partner,
employee or as a shareholder or in any other capacity
whatsoever, alone or in association with any other person,
firm or corporation, carry on or be engaged or be financially
concerned or interested with or in any operations, activities
or businesses in competition with the business of the
Corporation, or
(c) solicit any customer, client, employee or consultant employed,
engaged or doing business with the Corporation.
5.2 For the purposes of this Section 5, a competing person or entity, means
any person or entity, whether for profit or no-for-profit, who is
involved in operations, activities or business in competition with the
business of the Corporation in which the Employee worked in respect to
which the Employee has received information;
5.3 Provided that if the Corporation terminates the Employment Agreement
without just cause or the Employee terminates the Employment Agreement
with cause, the Employee shall not be bound by the terms and conditions
of this Agreement as it relates to non-competition, specifically but
not limited to Section 5.1 of this Agreement.
6. PROPRIETARY RIGHTS TO INTELLECTUAL PROPERTY
6.1. The Employee agrees the copyright and all other intellectual property
rights of whatever nature in any and all Information prepared by the
Employee during the course of association with the Corporation, whether
or not such information or material is prepared on or off the premises
of the Corporation, shall belong exclusively to the Corporation be
deemed to be works made for hire.
6.2 To the extent that any items may not, by operation of law, be works
made for hire, the Employee hereby irrevocably transfers and assigns to
the Corporation the ownership of all right, title, and interest in such
items, including but not limited to copyright, and the corporation
shall have the right to obtain and hold in its own name copyright or
other protection which may be available or become available in the
items. The Employee agrees to give the Corporation, its designees or
assignees all assistance reasonably required to perfect such rights,
titles and interests.
6.3 Generally and with regard to Section 6.1 above, the Employee shall
disclose promptly to the Corporation all inventions, discoveries,
formulas, processes, designs, trade secrets and other useful
information and know-how made, discovered or developed by the Employee
either alone or in conjunction with any other person or entity during
the term of the Employee's association with the Corporation that are
based on, derived from or make use of any information disclosed to or
acquired by the Employee during his term of association with the
Corporation. All the foregoing shall for the purposed herein be defined
and considered as Information.
6.4 Notwithstanding any other provision of this Agreement, whether or not
still in association with the Corporation, the Employee shall have no
right to use the Corporation's name, trade, or service marks whether
existing pursuant to common law, provincial or federal statute, rules,
or regulations, this Agreement, or the services performed by the
Employee to the Corporation, directly or indirectly, in connection with
any production, promotion or publications, without the prior written
approval of an officer or director of the Corporation.
7. TERMINATION OF EMPLOYMENT AND EFFECT OF TERMINATION
7.1 In order to permit the corporation to enforce its rights and interests
pursuant to this Agreement, the Employee agrees that for a period of
one (1) year from the termination of the Employee's employment with the
Corporation, except in the circumstances set out in Section 5.3 of this
Agreement; the Employee shall give written notice to the Corporation as
to the Employee's then current residence(s) and then current work
address(es).
7.2 Any termination of the employment of the Employee (howsoever
occasioned) shall not affect any accrued rights or liabilities of
either party nor shall such termination affect the coming into force or
the continuance in force of any provision hereof which is expressly or
by implication intended to come into or continue in force on or after
such termination. All the foregoing warranties, covenants and
obligations particularly those in Sections 3, 4, 5, 6 and 7 shall
survive any termination of such employment.
7.3 The Employee shall at no time interfere with, frustrate or hinder the
Corporation in the performance of the Corporation's rights under this
Agreement.
7.4 The Employee agrees that all restrictions contained in Section 4, 5 and
6 are reasonable and valid and all defences to the strict enforcement
thereof by the Corporation are hereby waived by the Employee.
7.5 The Employee agrees that the remedy at law for any breach by the
Employee of Sections 4, 5 and 6 of this Agreement will be inadequate
and that the Corporation, on any application to a court, shall be
entitled to temporary and permanent injunctive relief against the
Employee without the necessity of proving actual damage to the
Corporation.
7.6 In the event of an actual or threatened breach by the employee of any
provision of this Agreement, the Corporation shall be entitled to both
legal and equitable relief. Nothing herein shall be construed as
prohibiting the Corporation from pursuing any of its available remedies
arising from such breach or threatened breach including recovery of
damages, and where applicable, injunctive relief to restrain such
breach or threatened breach.
8. FURTHER ASSURANCES
8.1 If any provision of this Agreement, shall be held unenforceable, the
unenforceable portion shall be deemed severable and the remainder of
the provision or any portion of this Agreement shall remain in full
force and effect.
8.2 This Agreement may be assigned by the Corporation to any of its sub-
sidiaries or to a successor to all or substantially all of the assets
and business of the Corporation.
8.3 The Employee shall not assign, pledge or encumber his interest in this
Agreement nor assign any of his rights or duties under this Agreement
without the prior written consent of the Corporation.
8.4 The Agreement shall be binding on and enure to the benefit of the
successors and assigns of the Corporation and the heirs, executors,
administrators, permitted successors and assigns of the Employee.
8.5 This Agreement shall be governed by, construed and interpreted in
accordance with the laws of the Province of Alberta and each of the
parties herby irrevocably attorns to the exclusive jurisdiction of the
Courts of the Province of Alberta.
8.6 The parties shall execute and do all such further deeds, documents and
things as may be necessary to carry out the provisions of this
Agreement.
8.7 Should any portion of this Agreement be subject to court proceeding or
litigation of any nature involving legal counsel, the party in breach
of this Agreement shall bear all legal costs involved, on a solicitor
and his own client basis.
8.8 Time is of the essence in this Agreement.
8.9 The undersigned Employee hereby acknowledges and confirms that:
(a) prior to execution and delivery of this Agreement the Employee
has been advised to seek independent legal advice in
connection with this Agreement and has either:
(i) obtained such independent legal action; or
(b) Employee has executed this Agreement voluntarily with full
knowledge of its terms and conditions.
IN WITNESS the undersigned has executed this Agreement this __22__
day of __March__, 2001.
CORMAX BUSINESS SOLUTIONS LTD.
/s/ Xxxx Shykora /s/ Xxxx Xxxxxxxx
------------------------------------------- Per:--------------------------------
WITNESS
IN WITNESS the undersigned has executed this Agreement this _22_
day of __March__, 2001.
/s/ Xxxx Shykora /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------- ------------------------------------
WITNESS ("Employee")
I have received a signed copy of this Agreement this __22__ day of __March__,
2001.
/s/ Xxxxxxx Xxxxxxxxx
------------------------------------------- ("Employee")
