CONTRACTS

OVERVIEW

Because SMG uses personnel – associates, colleagues, companies, consultants, educators, governments, individuals, organizations, partners, sub-contractors, universities – on client projects that are not company employees, our clients like all project participants to be bound by three Agreements that they have vetted, and modified to meet their specific demands.  These Agreement are:

  • Confidentiality Agreement
  • Non-Competition Non-Disclosure Agreement
  • Contract Terms: Rates, Payment, Responsibilities…

The intent of these Agreements is to establish a relationship between the Parties – SMG | SMG Personnel | SMG Clients – according to current professional standards. Each Party is expected to perform according to these standards even though they may not explicitly appear in these Agreements.  The Agreements are intended to protect the rights, efforts, property, enterprise… of all the Parties. The examples provided are used as a basis for all Associate | Consultant | Company | Individual | Sub-Contractor Agreements.

The Parties in these examples are the Company and the Associate. In all Agreements:

  • “Company”  means Successors and any future Subsidiaries or Organization controlled by, controlling, or under common control with the Company.
  • “Confidential Information” means information which is disclosed to the Associate or known by the Associate as a consequence of or through his association with the Company, not generally known in the Industry in which the Company is or may become engaged, about the Company’s Products, Processes and Services, including Information relating to Research, Development, Invention, Manufacturing, Purchasing, Accounting, Engineering, Merchandising, Selling and any other Activity of the Company.
  • “Inventions” means Discoveries, Concepts, Ideas, Intellectual Property…, whether they are patentable or not, including but not limited to Processes, Methods, Formulas, and Techniques, as well as Improvements thereof or Know-How related thereto, concerning any present or prospective Activities of the Company with which the Consultant becomes acquainted as a result of his association with the Company.

The Contract Terms Agreement is subordinate to the other two with respect to Terms and Conditions. It is used to define precisely Compensation and Tasks should the Parties decide to work together. If the Parties decide not to work together, the other two Agreements still apply.

All project participants are expected to be a party to all three Agreements.

Where the Terms of any of the Agreements overlap, the most general of the Terms is assumed to apply.

CONFIDENTIALITY AGREEMENT

PREAMBLE

In the Preamble, the Parties to the Agreement are identified by Name, Organization, Location, Contact Information – phone numbers, email…

In the body of the Agreement, the Parties will be identified and referred to as the Company and the Associate.

IN CONSIDERATION of the use of the Services of the Associate by the Company and of a thirty (30) days notice of termination provision, it is agreed as follows:

1 EMPLOYMENT

The Company hereby Contracts for the Services of the Associate and the Associate hereby accepts the Services Contract upon the terms and conditions contained herein.

2 COMPENSATION

For the services rendered by the Associate, the Company shall pay the Associate according to the Contract Terms: Rates, Payment, and Responsibilities Agreement; or as otherwise shall be agreed upon from time to time by the parties hereto. Compensation is Contract dependent.

3 TERM

This Agreement shall commence on the date hereof, and shall remain in effect for an indefinite time until terminated by either party giving the other party notice of termination at least thirty (30) days prior to the effective date of termination, or by the Company upon ten (10) days prior notice if the Associate has failed to perform any of his duties or obligations here-under. The date of mailing of the notice shall constitute commencement of the notice period.

4 DUTIES AND EXTENT OF SERVICES

The Associate is engaged as a Sub-Contractor of the Company. The precise services of the Associate may be extended or curtailed, from time to time, at the direction of Company. The Associate shall devote the Contracted working time, attention and energies to the business of the Company, and shall assume and perform such further reasonable responsibilities and duties as may be assigned to him from time to time by the Company.

5 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION

The Associate agrees, during the term of the Contract and forever thereafter to keep confidential all information provided by the Company, excepting only such information as is already known to the public, and including any such information and material relating to any customer, vendor, licensor, licensee, or other party transacting business with the Company, and not to release, use or disclose the same except with the prior written permission of the Company.

The Associate recognizes and acknowledges that the list of the Company’s customers, as it may exist from time to time, is a valuable, confidential, special, and unique asset of the Company’s business. The Associate will not, during or after the term of his employment, disclose the list of the Company’s customers or any part thereof to any person, firm, corporation, association or other entity for any reason or purpose whatever.

The Associate further agrees to consider all specific technology including software, algorithms, computer processing systems, instrumentation systems, techniques, and IP with which the Associate becomes familiar as an Associate of the Company to be confidential and the exclusive property of the Company which will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports, price lists, customer lists, drawings, plans, sketches, documents, equipment, and the like, relating to the business of the Company, which the Associate shall use or prepare or come into contact with, shall remain the sole property of the Company.

The Associate recognizes that the disclosure of confidential information by the Associate may give rise to irreparable injury to the Company, which may not be adequately compensated by damages. Accordingly, in the event of a breach or threatened breach by the Associate of the provision of this paragraph, the Company shall be entitled to an injunction restraining the Associate from disclosing, in whole or in part, the confidential information defined in this paragraph, or from rendering any services to any person, firm, corporation, association or other entity to whom such confidential information, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies available to the Company for such breach or threatened breach, including the recovery of damages from the Associate. The within undertakings shall survive the termination or cancellation of this Agreement or of the Associate’s employment.

6 COMPANY CLIENT AGREEMENTS

The Associate agrees that they are bound by all Agreements (including but not limited to Proprietary Information, Confidentiality, Non-Competition, Non-Disclosure) between the Company and their Clients. They also agree that they can review the Agreements that are relevant to their Services to the Company at anytime. These Agreements are located at the Company Address given at the beginning of this document.

7 GENERAL PROVISIONS

7.1 No Waiver

The failure of the Company to terminate this Agreement for the breach of any condition or covenant herein by the Associate shall not affect the Company’s right to terminate for subsequent breaches of the same or other conditions or covenants. The failure of either party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be construed as a waiver of such provisions or of the right of the party thereafter to enforce each and every such provision.

7.2 Notices

Any notice hereby required or permitted to be given shall be sufficiently given if in writing and mailed by registered or certified mail, postage prepaid, to either party at the address of such party set forth above at such other address as shall have been designated by written notice by such party to the other party.

7.3 Entire Contract

This Agreement shall constitute the entire Contract between the parties and supersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof. No change, modification or amendment of this Agreement shall be of any effect unless in writing signed by the Associate and by the President or Vice President or Personnel Manager of the Company.

7.4 Governing Law

This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the Province of British Columbia in the Country of Canada.

8 SEVERABILITY

Should any provision of this Agreement not be enforceable in any jurisdiction, the remainder of the Agreement shall not be affected thereby.

SIGNATORIES

This Agreement will be signed, dated, and completed in duplicate by the two Parties hereto.

Enough information to specifically identify the two Parties, including but not limited to Name | Title | Organization, will be included.

Each page of the Agreement will include a footer with:

  • Name of the Agreement
  • Company Name
  • Associate Name
  • Page # of Total Pages #
  • Place for the Initials of both Parties
  • Date of the Agreement

NON-COMPETITION NON-DISCLOSURE AGREEMENT

PREAMBLE

In the Preamble, the Parties to the Agreement are identified by Name, Organization, Location, Contact Information – phone numbers, email…

In the body of the Agreement, the Parties will be identified and referred to as the Company and the Associate.

WHEREAS, the Company desires to Contract the Associate and the Associate desires to be Contracted by the Company in connection with the business of the Company; and

WHEREAS, in connection with such Contracting, the Associate may be given access to, generate, or otherwise come into contact with certain proprietary and/or confidential information of the Company or clients of the Company; and

WHEREAS, the Associate and the Company desire to prevent the dissemination or misuse of such information;

NOW, THEREFORE, the parties hereto mutually agree as follows:

1 EMPLOYMENT

The Company hereby employs or continues to employ the Associate and the Associate hereby accepts employment, upon the terms and conditions contained herein and at a compensation as shall be agreed upon from time to time by the Company and the Associate. This Agreement shall commence on the date hereof and shall remain in effect for an indefinite time until terminated by either party by giving the other party notice of termination at least thirty (30) days in advance. While employed by the Company, the Associate shall devote his or her Contracted working time to the Company’s affairs and shall faithfully and diligently serve the Company’s interests.

2 CONFIDENTIALITY

The Associate recognizes and acknowledges that the systems which the Company owns, plans or develops, whether for its own use or for use by its clients, are confidential and are the property of the Company. The Associate further recognizes and acknowledges that in order to enable the Company to perform services for its clients, such clients may furnish to the Company confidential information concerning their business affairs, property, methods of operation or other data; that the goodwill afforded to the Company depends upon, among other things, the Company and its Associates keeping such services and information confidential (collectively, including Company systems and Company client information, the “Confidential Information”).

3 NON-DISCLOSURE

The Associate agrees that, except as directed by the Company, the Associate will not at any time, whether during or after his employment with the Company, disclose to any person or use any Confidential Information, or permit any person to examine and/or make copies of any documents which contain or are derived from Confidential Information, whether prepared by the Associate or otherwise coming into the Associate’s possession or control without the prior written permission of the Company.

4 POSSESSION

The Associate agrees that upon request by the Company, and in any event upon termination of the Contract, the Associate shall turn over to the Company all documents, papers or other material in his possession or under his control which may contain or be derived from Confidential Information, together with all documents, notes or other work product which is connected with or derived from the Associate’s services to the Company whether or not such material is at the date hereof in the Associate’s possession. Associate agrees that the Associate shall have no proprietary interest in any work product developed or used by the Associate and arising out of his employment by the Company. The Associate shall, from time to time as may be requested by the Company, do all things which may be necessary to establish or document the Company’s ownership of any such work product, including, but not limited to execution of appropriate copyright applications or assignments.

5 NON-COMPETITION

The Associate agrees and covenants that because of the confidential and sensitive nature of the Confidential Information and because the use of, or even the appearance of the use of, the Confidential Information in certain circumstances may cause irreparable damage to the Company and its reputation, or to clients of the Company, the Associate shall not, until the expiration of three (3) years after the termination of the employment relationship between the Company and the Associate, engage, directly or indirectly, or through any corporations or associates in any business, enterprise or employment which is directly competitive with the Company.

6 SAVING PROVISION

The Company and the Associate agree and stipulate that the agreements and covenants not to compete contained in the preceding paragraph are fair and reasonable in light of all of the facts and circumstances of the relationship between the Associate and the Company; however, the Associate and the Company are aware that in certain circumstances courts have refused to enforce certain agreements not to compete. Therefore, in furtherance of and not in derogation of the provisions of the preceding paragraph the Company and the Associate agree that in the event a court should decline to enforce the provisions of the preceding paragraph, that paragraph shall be deemed to be modified to restrict the Associate’s competition with the Company to the maximum extent, in both time and geography, which the court shall find enforceable; however, in no event shall the provisions of the preceding paragraph be deemed to be more restrictive to the Associate than those contained therein.

7 INJUNCTIVE RELIEF

The Associate acknowledges that disclosure of any Confidential Information or breach of any of the non-competitive covenants or agreements contained herein will give rise to irreparable injury to the Company or clients of the Company, inadequately compensable in damages. Accordingly, the Company or, where appropriate a client of the Company, may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. The Associate further acknowledges and agrees that in the event of the termination of employment with the Company the Associate’s experience and capabilities are such that the Associate can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an Associate of the Company; and that the enforcement of a remedy hereunder by way of injunction shall not prevent the Associate from earning a reasonable livelihood. The Associate further acknowledges and agrees that the covenants contained herein are necessary for the protection of the Company’s legitimate business interests and are reasonable in scope and content.

8 COMPANY CLIENTS

If Associate’s contract with the Company terminates for any reason, the Associate shall not, for a period of three (3) years from the date of termination, have any business dealings whatsoever, either directly or indirectly or through corporate entities or associates with any customer or client of the Company or its subsidiaries or any person or firm which has contacted or been contacted by the Company as a potential customer or client of the Company; and the Associate shall keep in strictest confidence, both during the Associate’s contract and subsequent to termination of the contract, and shall not during the period of the contract or thereafter disclose or divulge to any person, firm or corporation, or use directly or indirectly, for the Associate’s own benefit or the benefit of others, any information which in good faith and good conscience ought to be treated as confidential information including, without limitation, information relating to the software developed by the Company, information as to sources of, and arrangements for, hardware supplied to customers or clients of the Company, submission and proposal procedures of the Company, customer or contact lists or any other Confidential Information.

9 ENFORCEABLE

The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of the Associate against the Company whether predicated on this Agreement or otherwise.

10 GOVERNING LAW

The Agreement shall be construed in accordance with the laws of the Province of British Columbia in the Country of Canada.

11 GENERAL

This Agreement contains the entire agreement of the parties relating to the subject matter hereof. This Agreement may be modified only by an instrument in writing signed by both parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in writing and is sent by certified or registered mail to the Associate at his residence address as the same appears on the books and records of the Company or to the Company at its principal office, attention of the President, or otherwise as directed by the Company, from time to time. The provisions of this Agreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.

SIGNATORIES

This Agreement will be signed, dated, and completed in duplicate by the two Parties hereto.

Enough information to specifically identify the two Parties, including but not limited to Name | Title | Organization, will be included.

Each page of the Agreement will include a footer with:

  • Name of the Agreement
  • Company Name
  • Associate Name
  • Page # of Total Pages #
  • Place for the Initials of both Parties
  • Date of the Agreement

CONTRACT TERMS: RATES, PAYMENT, RESPONSIBILITIES...

PREAMBLE

In the Preamble, the Parties to the Agreement are identified by Name, Organization, Location, Contact Information – phone numbers, email…

In the body of the Agreement, the Parties will be identified and referred to as the Company and the Associate.

WHEREAS, the Company desires to Contract the Associate and the Associate desires to be Contracted by the Company in connection with the business of the Company; and

WHEREAS, the Company states that this is definitely not an Employer – Employee Agreement; and

NOW, THEREFORE, the parties hereto mutually agree as follows:

1 EXPENSES SPLITS

The Associate shall be held financially responsible for his full proportionate share of the Company overhead and expenses while working for the Company.

See Item 2 for further clarification of this responsibility and the Associate share of Company billings.

See Item 3 for additional sources of income including bonuses and profit sharing.

2 BILLINGS SPLITS

To facilitate Item 1 of this Agreement, the Associate agrees that:

2.1 The Associate – Company share of all billings invoiced to Company Clients is an industry standard   %  –   %; the Associate share is to be paid only after the Client has approved and paid for the invoiced work. %’s can be modified by written agreement between both Parties.

2.2 The Company share of all grants used to employ the Associate is   %; in view of subsequent considerations in this Agreement – See Item 3 – the remaining   % of all grants paid to the Associate is considered a deemed and paid wage.

3 ADDITIONAL INCOME SOURCES

In consideration of Item 2, the Company authorizes the following additional sources of income providing the jobs involved do not interfere with the Associate’s duties to the Company:

3.1 Consulting labor billed directly to a Company client and attributed directly to the Associate is to be split   %  –  % between the Associate and the Company until   % of the gross wage has been received at which time the split reverts to the normal   %  –   %.

3.2 Income from other Company approved jobs, such as college or university teaching, is subjected to time and money compensation when the job interferes with the acceptable performance of the Associate’s duties. Under these circumstances, the job is to be treated as a consulting contract.

3.3 Sales commissions, ~5-10% of gross sales according to available Company schedules for the sale of hardware or software to Company clients, are in proportion to the Associate’s participation in the sales. Sales commissions include an industry standard 1-2% finder’s fee.

3.4 Industry standard royalties from the software being developed under any government grant used to hire the Associate are to be in proportion to the Associate’s contribution to the R&D.

3.5 Profit sharing at the end of each project or fiscal year, whichever is most appropriate, is in proportion to the Associate’s contribution to the Company profits and is dependent on the payment of the Associate’s fair share of overhead and expenses by his % of Client billings as defined in Items 2 & 3.

4 RESPONSIBILITIES

At all times the Associate will be guided in the performance of his duties by:

4.1 The Association of Professional Engineers of British Columbia Act, Bylaws, and Code of Ethics. Where the Associate is not a professional engineer, he will still be expected to adhere to these guidelines of behavior as if he were a professional engineer. A copy of the Act, Bylaws, and Code of Ethics is available in the Company office at all times

4.2 An evolving Confidentiality Agreement which is available in the Company office at all times

4.3 An evolving Non-Disclosure Non-Competition Agreement which is available in the Company office at all times

SIGNATORIES

This Agreement will be signed, dated, and completed in duplicate by the two Parties hereto.

Enough information to specifically identify the two Parties, including but not limited to Name | Title | Organization, will be included.

Each page of the Agreement will include a footer with:

  • Name of the Agreement
  • Company Name
  • Associate Name
  • Page # of Total Pages #
  • Place for the Initials of both Parties
  • Date of the Agreement
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