1. Definitions
A. Capitalized terms used throughout
this Agreement shall have the following meanings
(i)
“Agreement”
means this Employment Agreement and attached Exhibits.
(ii)
“CAPETOWN Products” means the software
licenses or hardware equipment offered for sale or sold by CAPETOWN.
(iii)
“CAPETOWN
Services” means the information technology, hosting, software support, software
maintenance and consulting services offered for sale or sold by CAPETOWN.
(iv)
“Client”
means a customer, client or account of CAPETOWN, which has used during the past
12 months, or which is actively in the process of contracting for, CAPETOWN
Services or CAPETOWN Products, including without limitation, any current
licensee of any CAPETOWN software.
(v) “Confidential Information” has the
meaning ascribed to it in Section 6.B.
(vi)
“Employee”
means the undersigned employee.
(vii)
“Industry”
means the enterprise commerce software industry, which includes the business of
creating, selling and maintaining custom and off the shelf business management
software.
(viii)
“Intellectual
Property” means anything that is or may be protected by any Intellectual
Property Right including but not limited to works (including computer
programs), performances, discoveries, inventions, trade-marks (including
service marks), trade names, industrial designs, mask works and integrated
circuit topographies.
(ix)
“Intellectual
Property Rights” means any right that is or may be granted or recognized
under any Canadian or foreign legislation regarding patents, copyrights,
neighbouring rights, moral rights, trade-marks, trade names, service marks,
industrial designs, mask works, integrated circuit topographies, privacy,
publicity, celebrity and personality rights and any other statutory provision
or common or civil law principle regarding intellectual and industrial
property, whether registered or unregistered, and including rights in any
application for any of the foregoing
(x)
“Personal Information” has the meaning ascribed to it
in Section 6.B.
(xi)
“Salary”
is the amount described in Exhibit A.
(xii)
"Vacation"
means the term set out in Exhibit A.
2. Employee Obligations
A. Employee agrees to faithfully
perform all duties of an employee without argument or insubordination.
B. Employee agrees that the duties of
an employee shall be established from time to time by CAPETOWN in advance, as
set out in Exhibit A, and shall not be contrary to any law or regulation.
3. Payment
A. CAPETOWN agrees to pay Employee a Salary either bi-weekly or twice per
month on a schedule to be solely determined by CAPETOWN from time to time, and
to deduct all taxes, fees, garnishment and program dues as required by law, or
any plan to which Employee subscribes.
B. CAPETOWN agrees to grant Employee Vacation per calendar year, pro rated
for any partial year.
C. The parties agree that amount of any
Salary or duration of any Vacation period can be amended by mutual agreement of
the parties, without impairing the enforceability of any other term of this
Agreement.
4. Intellectual
Property Ownership
A. The parties agree that CAPETOWN is
in the business of creating, owning, managing and licensing Intellectual
Property Rights in and to its software, and that in order for CAPETOWN’s business
model to be effective, the right and title in or to any Intellectual Property
Rights must belong to CAPETOWN.
B. As between the parties, the parties
agree that all right, title and interest in or to the CAPETOWN Services and
CAPETOWN Products belongs to CAPETOWN.
C. Employee assigns, and agrees to
assign, all Intellectual Property Rights in or to the CAPETOWN Products and
CAPETOWN Services created by Employee during the Term.
D. Employee assigns, and agrees to
assign, all Intellectual Property Rights in or to any software code created
during the Term using CAPETOWN resources.
E. During the Term, and for a period of
seven (7) years thereafter, Employee agrees, at CAPETOWN’s expense, to do all
things, and execute all documents necessary for the registration or assignment
of any Intellectual Property Rights to which CAPETOWN is entitled pursuant to
this Section 4.
F. Employee hereby waives any and all
moral rights of authorship or association currently held by Employee, or which
accrue to Employee during the Term, in or to any Intellectual Property,
CAPETOWN Product or CAPETOWN Service.
5. Non-Competition and Non-Solicitation
A. In consideration of Employee’s offer
of employment, continued employment, and any severance payment upon the
conclusion of employment, Employee shall not, for the duration of this
Agreement and for a period of one (1) year following the termination of same,
directly or indirectly, either for Employee's own account or as a partner,
shareholder (other than shares regularly traded in a recognized market),
officer, employee, agent or otherwise:
(i)
perform
work for any Client;
(ii)
solicit, interfere with or endeavour to entice away any
active or prospective clients of CAPETOWN;
(iii)
interfere
with, solicit or knowingly entice away any CAPETOWN employee who was an
employee during the Term of this Agreement; and
(iv)
interfere with or attempt to obtain the withdrawal from
CAPETOWN of any of its suppliers or financial backers.
6. Confidentiality
A. Employee acknowledges that the preservation of the
Confidential Information, Personal Information and Client-related information
to which Employee has access are fundamental to CAPETOWN as a going concern.
B. “Confidential Information” means any information which is
confidential in nature or that is treated as being confidential by CAPETOWN or
any Client, whether such information is or has been conveyed to Employee orally
or in written or other tangible form, and whether such information is received
directly or indirectly such as in the course of discussions or other
investigations by Employee. “Personal
Information” means information about an identifiable individual. Without limiting the generality of the
foregoing, Confidential Information and Personal Information shall include
without limitation:
(i)
any
trade secret, technical, financial or business information, data, idea, concept
or know-how that is considered and treated as being confidential by CAPETOWN or
any Client;
(ii)
any
detail, feature or function of any CAPETOWN Product of CAPETOWN Service not
generally known to the public;
(iii)
the fact that any discussions have occurred between
CAPETOWN or any Client or are taking place;
(iv)
the fact that confidential information has been
disclosed by CAPETOWN to Employee or by any Client to either CAPETOWN or
Employee ;
(v)
the existence or terms and conditions of any agreement
with any Client; and
(vi)
any personal information belonging to a client,
customer or employee of CAPETOWN, including an individual’s name, title or
business address or telephone number.
However, Confidential Information
shall not include:
(vii)
information
that Employee can show,
by documentary and competent evidence, was known to it prior to receipt thereof,
(viii)
information
that is or becomes generally available to the public other than as a result of disclosure
directly or indirectly by Employee in breach of this Agreement;
(ix)
information
that is or becomes available to Employee on a non-confidential basis from a
source other than CAPETOWN or a Client, provided that such source is not in
breach of its obligations of non disclosure towards CAPETOWN or any of its
Clients;
(x)
information
that Employee can show, by documentary evidence, to have been developed
independently by Employee without using any Confidential Information or any
CAPETOWN resources; or
(xi)
information
of which CAPETOWN has authorized the unrestricted disclosure in writing.
C. Confidential
Information, Personal Information or Client-related Information disclosed in
tangible or electronic form may be marked or otherwise identified by CAPETOWN
with a legend, but in no event shall the absence of such a mark or legend
relieve Employee of his obligation to treat as confidential, information which
would be considered confidential, private or proprietary by a person exercising
reasonable business judgment.
D. Employee shall not use any
Confidential Information, Personal Information or Client-related Information
for any purpose other than as required by Employee’s employment, or copy or
otherwise reproduce any such information, or disclose, disseminate or otherwise
communicate in whole or in part any such information to any third party, except
as required by loyal performance of Employee’s employment.
E. Employee shall keep an accurate
record of all persons to whom Confidential Information is disclosed.
F. Employee
agrees that it shall protect the Confidential Information from disclosure
except as permitted hereby and, at a minimum, use all efforts and processes to
safeguard the Confidential Information and Personal Information which are
provided by CAPETOWN and which are commensurate with importance of the information
being protected, which efforts shall in no event amount to less than a
reasonable degree of care.
G. In the event that Employee becomes compelled
by law, regulation or order of court or administrative body to disclose any
Confidential Information or Personal Information, Employee shall be entitled to
disclose such information subject to the requirements of this Section 6.G.
Employee shall provide CAPETOWN with prompt prior written notice of such
requirements so that CAPETOWN may seek a protective order or other appropriate
remedy and/or waive compliance with the terms of this Agreement, which waiver
shall not be unreasonably withheld. In the event that a protective order or
other remedy is not obtained, or that CAPETOWN waives compliance with the
provisions hereof, Employee agrees to furnish only that portion of the information
which is legally required and to exercise its best efforts to obtain assurances
that the information disclosed will be treated in confidence.
H. The
obligations of Employee under this Section 6 shall survive termination or expiry of this Agreement.
7. Termination
A. Either party may terminate this Agreement in accordance with Exhibit A.
B. Upon termination of this Agreement, Employee shall:
(i)
immediately
repay any unearned vacation pay;
(ii)
immediately
return all CAPETOWN provided electronic devices and data recording media;
(iii)
immediately
surrender all passwords, access codes, keys and access equipment used to access
CAPETOWN or Client premises, equipment or data;
(iv)
within
two (2) business days, deliver up or destroy all Confidential Information,
Personal Information and Client-related information (including Client lists and
Client contact information) in Employee’s possession and delete, irretrievably,
all computer files containing any Confidential Information, Personal Information,
Client-related information (including Client lists and Client contact
information) and CAPETOWN software on Employee-owned electronic devices or data
recording media; and
(v)
immediately
upon the request of CAPETOWN provide CAPETOWN with access to any Employee-owned
electronic devices and data recording media, so that Employee and CAPETOWN can
verify the deletion of all Confidential Information, Personal Information and
Client-related information (including Client lists and Client contact
information).
C. Survival. The obligations in Sections 4, 5 and 6 shall survive termination of this Agreement for the
periods set out therein, and Sections 7.C, 8, 9, 10, 11 and 12 shall survive until all rights and obligations
hereunder have expired.
8. Remedies
A. Employee acknowledges and agrees
that, if Employee shall violate any covenants or agreements in Sections 4, 5 or 6, CAPETOWN shall suffer harm not capable of being
compensated by monetary damages alone, and that CAPETOWN shall be entitled to
equitable remedies including injunctions, specific performance and an
accounting of profits.
B. Where Employee has breached any
obligations in Sections 4, 5 or 6 for Employee’s direct or indirect financial gain,
CAPETOWN shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remunerations or benefits which Employee directly or
indirectly has realized and/or may realize as a result of, growing out of or in
connection with any such violation.
C. All remedies in this Section 8 shall be in addition to and not in
limitation of any other rights or remedies to which CAPETOWN is or may be
entitled at law, or in equity or under this Agreement.
9. Reasonableness
of Restrictions.
A. Employee has carefully read and considered the provisions of
Sections 4, 5 and 6 hereof and, having done so, agrees that the
restrictions set forth therein (including, but not limited to, the time period
of restriction and the geographical areas of restriction) are fair and
reasonable and are reasonably required for the protection of the interests of
CAPETOWN, its officers, directors, shareholders and other employees.
B. In the event that, notwithstanding
the foregoing, any part of the covenants set forth in Sections 4, 5 and 6 hereof shall be held to be invalid or unenforceable,
the remaining parts thereof shall nevertheless continue to be valid and enforceable
as though the invalid or unenforceable parts had not been included
therein. In the event that any
provision of Section 5 relating to time period and/or areas of restriction
shall be declared by a court of competent jurisdiction to exceed the maximum
time period or areas such court deems reasonable and enforceable, the agreed
upon time period and/or areas of restriction shall be deemed to become and
thereafter be the maximum time period and/or areas which such court deems
reasonable and enforceable.
10. Assignment,
Burden and Benefit.
A. This Agreement shall be binding upon, and shall inure to the
benefit of, CAPETOWN and its successors and assigns. CAPETOWN may assign this Agreement, without notice or
consent, to any successor entity, or purchaser of all or substantially all of
the business or assets of CAPETOWN.
B. This Agreement contains personal
obligations of Employee to CAPETOWN, and may not be assigned or
transferred. This Agreement shall
be binding upon Employee in its entirety.
11. Governing Law.
Construction
and interpretation of this Agreement shall at all times and in all respects be
governed by the laws of the Province of Ontario, Canada. The parties hereby agree to attorn to
the jurisdiction of the courts of the Province of Ontario.
12. Severability.
The
provisions of this Agreement (including particularly, but not limited to, the
provisions of Sections 4, 5 or 6, or the subsections thereof) shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions hereof shall not affect the validity and enforceability of the other
provisions hereof.
13. Notices.
A. Any notice required to be or
otherwise given hereunder shall be sufficient if in writing, and delivered
personally, by fax, by electronic means of communications addressed to the
recipient, sent by certified or registered mail, return receipt requested,
first-class postage prepaid, to CAPETOWN at the address given above, and to
Employee at the address given above; or such other address as the addressee
notifies the sender in advance.