1. Definitions
A. Capitalized terms used throughout
this Agreement shall have the following meanings
(i) “Agreement”
means this Capetown Contractor 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 7.A.
(vi) “Fee”
is the amount described in Exhibit A.
(vii) “Contractor”
means the undersigned contractor.
(viii) “Industry”
means the enterprise commerce software industry, which includes the business of
creating, selling and maintaining custom and off the shelf business management
software.
(ix) “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.
(x) “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.
(xi) “Personal Information” has the
meaning ascribed to it in Section 7.A.
(xii) “Services”
means the services described in Exhibit A, to be performed by Contractor
pursuant to this Agreement.
(xiii) “Term” means the term as set out in
Exhibit A.
2. Term of Engagement
A. The duration of Contractor’s engagement shall be for the Term
set out in Exhibit A.
B. Either party may terminate this
Agreement pursuant to Section 8.A, and subject to the conditions set out in Section 8.B.
3. Contractor Obligations
A. Contractor agrees to faithfully
perform all services without argument or insubordination.
B. Contractor agrees that the Services
required hereunder shall be established from time to time by CAPETOWN in
advance and shall not be contrary to any law or regulation.
4. Payment
A. CAPETOWN agrees to pay Contractor a monthly fee as described in Exhibit
A. The Fee will be exclusive of
all amounts required to be assessed by law, including but not limited to
valued-added and sales taxes, tariffs, regulatory surcharges and other
governmental fees or charges that may be imposed from time to time. CAPETOWN
agrees to pay the Fee as set out in Exhibit A, to be solely determined by
CAPETOWN from time to time. Contractor shall be responsible for the payment of
all non-assessed charges, including
but not limited to income and corporate taxes imposed from time to time by
applicable law or regulation, whether now or in the future.
B. CAPETOWN agrees to grant Contractor vacation as set out in Exhibit A.
C. The parties agree that amount of the
Fee or duration of any Vacation can be amended by mutual agreement of the
parties, without impairing the enforceability of any other term of this
Agreement.
5. 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. The parties agree that all right,
title and interest in or to the CAPETOWN Services and CAPETOWN Products belongs
to CAPETOWN.
C. Contractor assigns, and agrees to
assign, all Intellectual Property Rights in or to the CAPETOWN Products and
CAPETOWN Services created by Contractor during the Term.
D. Contractor 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, Contractor 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 5.
F. Contractor hereby waives any and all
moral rights of authorship or association currently held by Contractor, or
which accrue to Contractor during the Term, in or to any Intellectual Property,
CAPETOWN Product or CAPETOWN Service.
6. Non-Solicitation
A. In consideration of the Agreement,
and any continuation thereof, paid by CAPETOWN upon expiry or termination of
this Agreement, Contractor 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 Contractor'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, on whose account Contractor has advised;
(ii)
interfere with, solicit or knowingly entice away
any CAPETOWN employee or contractor;
(iii) solicit, interfere with or endeavour
to entice away any active or prospective clients of CAPETOWN; and
(iv) interfere with or attempt to obtain
the withdrawal from CAPETOWN of any of its suppliers or financial backers.
7. Confidentiality
A. Contractor acknowledges that the preservation of the Confidential Information, Personal
Information and Client-related information to which Contractor 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 Contractor
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 Contractor. “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 Contractor or by any Client to
either CAPETOWN or Contractor; and
(v) the existence or terms and conditions
of any agreement with any Client; or
(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
Contractor 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 Contractor in breach of this
Agreement;
(ix) information
that is or becomes available to Contractor 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 Contractor can show, by documentary evidence, to have been developed
independently by Contractor 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 disclosed in tangible or electronic form may be marked or otherwise
identified by CAPETOWN with a legend as being confidential, but in no event
shall the absence of such a mark or legend relieve Contractor of the obligation
to treat as confidential, information which would be considered confidential by
a person exercising reasonable business judgment.
D. Contractor shall not use any
Confidential Information for any purpose other than as required by Contractor’s
performance of the Services contemplated by this Agreement, or copy or
otherwise reproduce any Confidential Information, or disclose, disseminate or
otherwise communicate in whole or in part any Confidential Information to any
third party, except as required by loyal performance of the Services
contemplated by this Agreement.
E. Contractor shall keep an accurate
record of all persons to whom Confidential Information is disclosed.
F. Contractor
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 which are provided by CAPETOWN and which
are commensurate with importance of the Confidential Information being
protected, which efforts shall in no event amount to less than a reasonable
degree of care.
G. In the event that Contractor becomes
compelled by law, regulation or order of court or administrative body to
disclose any Confidential Information or Personal Information, Contractor shall
be entitled to disclose such Confidential Information subject to the
requirements of this Section 7.G.
Contractor 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, Contractor 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 Contractor under this Section 7 shall survive termination or expiry of this
Agreement.
8. Termination
A. Either party may terminate this Agreement in accordance with Exhibit A.
B. Upon termination of this Agreement, Contractor 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 Contractor’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 Contractor-owned electronic
devices or data recording media; and
(v) immediately
upon the request of CAPETOWN provide CAPETOWN with access to any Contractor-owned
electronic devices and data recording media, so that Contractor 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 5, 6, 7 and 8.B shall survive termination of this
Agreement for the periods set out therein, and Sections 8.C, 10, 11, 12 and 13 shall survive until all rights and obligations
hereunder have expired.
9. Remedies
A. Contractor acknowledges and agrees
that, if Contractor shall violate any covenants or agreements in Sections 5, 6 or 7, 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 Contractor has breached any
obligations in Sections 5, 6 or 7 for Contractor’s direct or indirect financial gain,
CAPETOWN shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remunerations or benefits which Contractor 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.C 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.
10. Reasonableness
of Restrictions.
A. Contractor has carefully read and
considered the provisions of Sections 5, 6 and 7 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 5, 6 and 7 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 6 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.
11. 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 Contractor to CAPETOWN, and may not be assigned or
transferred. This Agreement shall
be binding upon Contractor in its entirety.
12. 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.
13. Severability.
The
provisions of this Agreement (including particularly, but not limited to, the
provisions of Sections 5, 6 or 7, 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.
14. 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 Contractor
at the address given above; or such other address as the addressee notifies the
sender in advance.