BACKGROUND
A. The Client is of the opinion that the Contractor has the necessary qualifications, experience, and abilities to provide services to the Client.
B. The Contractor is agreeable to providing such services to the Client on the terms and conditions set out in this Agreement
IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Contractor (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:
ONTARIO CONSUMER PROTECTION ACT, 2002
- Consumer rights as outlined in the Ontario Consumer Protection Act, 2002 can be found at the end of this Agreement in Appendix B.
SERVICES PROVIDED
- The Client hereby agrees to engage the Contractor to provide the Client with the following services (the "Services"): mentioned in Appendix A.
- The Services will also include any other tasks which the Parties may agree on. The Contractor hereby agrees to provide such Services to the Client.
TERM OF AGREEMENT
- The term of this Agreement (the "Term") will begin on the date of this Agreement and will remain in full force and effect indefinitely until terminated as provided in this Agreement.
- In the event that either Party wishes to terminate this Agreement, that Party will be required to provide 30 days' written notice to the other Party.
- In the event that either Party breaches a material provision under this Agreement, the non- defaulting Party may terminate this Agreement immediately and require the defaulting Party to indemnify the non-defaulting Party against all reasonable damages.
- This Agreement may be terminated at any time by mutual agreement of the Parties.
- Except as otherwise provided in this Agreement, the obligations of the Contractor will end upon the termination of this Agreement
PERFORMANCE
- The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.
CURRENCY
- Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in CAD (Canadian Dollars).
COMPENSATION
- The Contractor will charge the Client for the Services as follows (the "Compensation") mentioned in Appendix A.
- Invoices submitted by the Contractor to the Client are due on receipt.
REIMBURSEMENT OF EXPENSES
- The Contractor will be reimbursed from time to time for reasonable and necessary expenses incurred by the Contractor in connection with providing the Services.
- All expenses must be pre-approved by the Client.
INTEREST ON LATE PAYMENTS
- Interest payable on any overdue amounts under this Agreement is charged at a rate of 12.99% per annum or at the maximum rate enforceable under applicable legislation, whichever is lower.
CONFIDENTIALITY
- Confidential information (the "Confidential Information") refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.
- The Contractor agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Contractor has obtained, except as authorized by the Client or as required by law. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of this Agreement.
- All written and oral information and material disclosed or provided by the Client to the Contractor under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Contractor.
OWNERSHIP OF INTELLECTUAL PROPERTY
- All intellectual property and related material (the "Intellectual Property") that is developed or produced under this Agreement, will be the property of the Contractor. Ownership of the content created by Contractor would be transferred to Client after they are approved and published.
- Title, copyright, intellectual property rights and distribution rights of the Intellectual Property remain exclusively with the Contractor.
RETURN OF PROPERTY
- Upon the expiry or termination of this Agreement, the Contractor will return to the Client any property, documentation, records, or Confidential Information which is the property of the Client.
CAPACITY/INDEPENDENT CONTRACTOR
- In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee. The Contractor and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service.
RIGHT OF SUBSTITUTION
- Except as otherwise provided in this Agreement, the Contractor may, at the Contractor's absolute discretion, engage a third-party sub-contractor to perform some or all of the obligations of the Contractor under this Agreement and the Client will not hire or engage any third parties to assist with the provision of the Services.
- In the event that the Contractor hires a sub-contractor:
- the Contractor will pay the sub-contractor for its services and the Compensation will remain payable by the Client to the Contractor
- for the purposes of the indemnification clause of this Agreement, the sub-contractor is an agent of the Contractor.
AUTONOMY
- Except as otherwise provided in this Agreement, the Contractor will have full control over working time, methods, and decision making in relation to provision of the Services in accordance with the Agreement. The Contractor will work autonomously and not at the direction of the Client. However, the Contractor will be responsive to the reasonable needs and concerns of the Client.
EQUIPMENT
- Except as otherwise provided in this Agreement, the Contractor will provide at the Contractor’s own expense, any and all tools, machinery, equipment, raw materials, supplies, workwear and any other items or parts necessary to deliver the Services in accordance with the Agreement.
NO EXCLUSIVITY
- The Parties acknowledge that this Agreement is non-exclusive and that either Party will be free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.
NOTICE
- All notices, requests, demands or other communicationsrequired or permitted by the terms of this Agreement will be given in writing and delivered to the Parties at the following email addresses which are mentioned on Appendix A.
INDEMNIFICATION
- Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.
ADDITIONAL CLAUSES
- Client must Approve Social Media Content (if taking social media marketing services) before it is published on relevant platforms.
- Client must abide by all Provincial and Federal Canadian laws.
- Client must complete there do Due Diligence beforehand to make sure that there is no any discriminatory language used in approved content that violates Provincial or Federal Canadian Laws.
- Client must submit new service request through support (support@byteteck.com) team so work can be prioritized and delivered in timely manner.
- Client must understand Limited support would be available on provincial or federal holidays.
MODIFICATION OF AGREEMENT
- Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.
TIME OF THE ESSENCE
- Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision.
ASSIGNMENT
- The Contractor will not voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without the prior written consent of the Client.
ENTIRE AGREEMENT
- It is agreed that there is no representation, warranty, collateral agreement, or condition affecting this Agreement except as expressly provided in this Agreement.
ENUREMENT
- This Agreement will inure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.
TITLES/HEADINGS
- Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement
GENDER
- Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
GOVERNING LAW
- This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario.
SEVERABILITY
- In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
WAIVER
- The waiver by either Party of a breach, default, delay, or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
Appendix B
Your Rights under the Ontario Consumer Protection Act, 2002
You may cancel this agreement at any time during the period that ends ten (10) days after the day you receive a written copy of the agreement. You do not need to give the supplier a reason for cancelling during this 10-day period.
If the supplier does not make delivery within 30 days after the delivery date specified in this agreement or if the supplier does not begin performance of his, her or its obligations within 30 days after the commencement date specified in this agreement, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.
If the delivery date or commencement date is not specified in this agreement and the supplier does not deliver or commence performance within 30 days after the date this agreement is entered into, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.
In addition, there are other grounds that allow you to cancel this agreement. You may also have other rights, duties and remedies at law. For more information, you may contact the Ministry of Consumer and Business Services.
To cancel this agreement, you must give notice of cancellation to the supplier, at the address set out in the agreement, by any means that allows you to prove the date on which you gave notice. If no address is set out in the agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known by you.
If you cancel this agreement, the supplier has fifteen (15) days to refund any payment you have made and return to you all goods delivered under a trade-in arrangement (or refund an amount equal to the trade-in allowance).
However, if you cancel this agreement after having solicited the goods or services from the supplier and having requested that delivery be made or performance be commenced within ten (10) days after the date this agreement is entered into, the supplier is entitled to reasonable compensation for the goods and services that you received before the earlier of the 11th day after the date this agreement was entered into and the date on which you gave notice of cancellation to the supplier, except goods that can be repossessed by or returned to the supplier.
NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT ("the Agreement")
BETWEEN:
BYTETECK CONSULTING INC (the "Contractor")
OF THE FIRST PART
- AND -
CLIENT (the "Client")
OF THE SECOND PART
BACKGROUND
A. The Contractor and the Client are contemplating a possible transaction (the “Transaction”) with
respect to services mentioned in Appendix A.
B. In connection with the Transaction (the “Permitted Purpose”), the Client has requested certain
confidential information (the “Confidential Information”).
IN CONSIDERATION OF and as a condition of the Contractor providing the Confidential Information to
the Client in addition to other valuable consideration, the receipt and sufficiency of which consideration is
hereby acknowledged, the parties to this Agreement agree as follows:
Confidential Information
- All written and oral information and materials disclosed or provided by the Contractor to the Client under this Agreement constitute Confidential Information regardless of whether such information was provided before or after the date of this Agreement or how it was provided to the Client.
- 'Confidential Information' means all data and information relating to the transaction and the Contractor, including but not limited to, the following:
- 'Business Operations' which includes internal personnel and financial information of the Contractor, vendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost information, internal services and operational manuals, external business contacts including those stored on social media accounts or other similar platforms or databases operated by the Contractor, and the manner and methods of conducting the Contractor's business;
- 'Customer Information' which includes names of customers of the Contractor, their representatives, all customer contact information, contracts and their contents and parties, customer services, data provided by customers and the type, quantity and specifications of products and services purchased, leased, licensed or received by customers of the Contractor;
- 'Intellectual Property' which includes information relating to the Contractor's proprietary rights prior to any public disclosure of such information, including but not limited to the nature of the proprietary rights, production data, technical and engineering data, technical concepts, test data and test results, simulation results, the status and details of research and development of products and services, and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets);
- 'Service Information' which includes all data and information relating to the services provided by the Contractor, including but not limited to, plans, schedules, manpower, inspection, and training information;
- 'Product Information' which includes all specifications for products of the Contractor as well as work product resulting from or related to work or projects of the Contractor, of any type or form in any stage of actual or anticipated research and development;
- 'Production Processes' which includes processes used in the creation, production and manufacturing of the work product of the Contractor, including but not limited to, formulas, patterns, moulds, models, methods, techniques, specifications, processes, procedures, equipment, devices, programs, and designs;
- 'Accounting Information' which includes, without limitation, all financial statements, annual reports, balance sheets, company asset information, company liability information, revenue and expense reporting, profit and loss reporting, cash flow reporting, accounts receivable, accounts payable, inventory reporting, purchasing information and payroll information of the Contractor;
- 'Marketing and Development Information' which includes marketing and development plans of the Contractor, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, and future plans and potential strategies of the Contractor which have been or are being discussed;
- 'Computer Technology' which includes all scientific and technical information or material of the Contractor, pertaining to any machine, appliance or process, including but not limited to, specifications, proposals, models, designs, formulas, test results and reports, analyses, simulation results, tables of operating conditions, materials, components, industrial skills, operating and testing procedures, shop practices, know-how and show-how;
- 'Proprietary Computer Code' which includes all sets of statements, instructions or programs of the Contractor, whether in human readable or machine readable form, that are expressed, fixed, embodied or stored in any manner and that can be used directly or indirectly in a computer ('Computer Programs'); any report format, design or drawing created or produced by such Computer Programs; and all documentation, design specifications and charts, and operating procedures which support the Computer Programs; and
- Confidential Information will also include any information that has been disclosed by a third party to the Contractor and is protected by a non-disclosure agreement entered into between the third party and the Contractor.
- Confidential Information will not include the following information:
- Information that is generally known in the industry of the Contractor;
- Information that is now or subsequently becomes generally available to the public through no wrongful act of the Client;
- Information rightly in the possession of the Client prior to the disclosure to the Client by the Contractor;
- Information that is independently created by the Client without direct or indirect use of the Confidential Information; or
- Information that the Client rightfully obtains from a third party who has the right to transfer or disclose it.
Obligations of Non-Disclosure
- Except as otherwise provided in this Agreement, the Client must not disclose the Confidential Information.
- Except as otherwise provided in this Agreement, the Confidential Information will remain the exclusive property of the Contractor and will only be used by the Client for the Permitted Purpose. The Client will not use the Confidential Information for any purpose that might be directly or indirectly detrimental to the Contractor or any associated affiliates or subsidiaries.
- The obligations to ensure and prevent the disclosure of the Confidential Information imposed on the Client in this Agreement and any obligations to provide notice under this Agreement will survive the expiration or termination, as the case may be, of this Agreement and will be continuous from the date of this Agreement for a period of five years, except in the case of any Confidential Information which is a trade secret in which case those obligations will last indefinitely.
- The Client may disclose any of the Confidential Information:
- to such employees, agents, representatives and advisors of the Client that have a need to know for the Permitted Purpose provided that:
- the Client has informed such personnel of the confidential nature of the Confidential Information;
- such personnel agree to be legally bound to the same burdens of non-disclosure and non-use as the Client;
- the Client agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by such personnel; and
- the Client agrees to be responsible for and indemnify the Contractor for any breach of this Agreement by their personnel.
- to a third party where the Contractor has consented in writing to such disclosure; and
- to the extent required by law or by the request or requirement of any judicial, legislative, administrative or other governmental body.
- The Client agrees to retain all Confidential Information at their usual place of business and to store all Confidential Information separate from other information and documents held in the same location. Further, the Confidential Information may not be used, reproduced, transformed, or stored on a computer or device that is accessible to persons to whom disclosure may not be made, as set out in this Agreement.
Non-Solicitation
- The Client, their affiliates, subsidiaries and representatives, agrees that from the date of this Agreement and for a period of five years thereafter, they shall not, directly or indirectly solicit for employment or employ any person who is now employed or retained by the Contractor or any affiliate of the Contractor without the prior written consent of the Contractor.
Non-Competition
- If the Transaction is not satisfactorily completed by the Parties, then:
- From the date of this Agreement and for a period of five years thereafter, the Client agrees not to divert or attempt to divert from the Contractor any business the Contractor had enjoyed, solicited, or attempted to solicit, from its customers, at the time the parties entered into this Agreement.
Ownership and Title
- Nothing contained in this Agreement will grant to or create in the Client, either expressly or impliedly, any right, title, interest or license in or to the intellectual property of the Contractor.
Remedies
- The Client agrees and acknowledges that the Confidential Information is of a proprietary and confidential nature and that any disclosure of the Confidential Information to a third party in breach of this Agreement cannot be reasonably or adequately compensated for in money damages and would cause irreparable injury to the Contractor. Accordingly, the Client agrees that the Contractor is entitled to, in addition to all other rights and remedies available to it at law or in equity, an injunction restraining the Client and any agents of the Client, from directly or indirectly committing or engaging in any act restricted by this Agreement in relation to the Confidential Information.
Return of Confidential Information
- The Contractor may at any time request the return of all Confidential Information from the Client. Upon the request of the Contractor, or in the event that the Client ceases to require use of the Confidential Information, or upon the expiration or termination of this Agreement, the Client will:
- return all Confidential Information to the Contractor;
- provide a certificate to the Contractor to the effect that the Client has returned all Confidential Information to the Contractor.
Notices
- In the event that the Client is required in a civil, criminal or regulatory proceeding to disclose any part of the Confidential Information, the Client will give to the Contractor prompt written notice of such request so the Contractor may seek an appropriate remedy or alternatively to waive the Client's compliance with the provisions of this Agreement in regards to the request.
- If the Client loses or makes unauthorized disclosure of any of the Confidential Information, the Client will immediately notify the Contractor and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
- Any notices or delivery required in this Agreement will be deemed completed when handdelivered, delivered by agent, or seven days after being placed in the post, postage prepaid, to the parties at the addresses contained in this Agreement or as the parties may later designate in writing.
- The email addresses for any notice to be delivered to any of the parties to this Agreement are as mentioned in Appendix A.
Representations
- In providing the Confidential Information, the Contractor makes no representations, either expressly or impliedly as to its adequacy, sufficiency, completeness, correctness or its lack of defect of any kind, including any patent or trade-mark infringement that may result from the use of such information.
Termination
- Either party may terminate this Agreement by providing written notice to the other party. Except as otherwise provided in this Agreement, all rights and obligations under this Agreement will terminate at that time.
Assignment
- Except where a party has changed its corporate name or merged with another corporation, this Agreement may not be assigned or otherwise transferred by either party in whole or part without the prior written consent of the other party to this Agreement.
Amendments
- This Agreement may only be amended or modified by a written instrument executed by both the Contractor and the Client.
Governing Law
- This Agreement will be construed in accordance with and governed by the laws of the Province of Ontario.
General Provisions
- Time is of the essence in this Agreement.
- This Agreement may be executed in counterpart.
- Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
- The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read and construed independently of each other. If any part of this Agreement is held to be invalid, this invalidity will not affect the operation of any other part of this Agreement.
- The Client is liable for all costs, expenses and expenditures including, and without limitation, the complete legal costs incurred by the Contractor in enforcing this Agreement as a result of any default of this Agreement by the Client.
- The Contractor and the Client acknowledge that this Agreement is reasonable, valid and enforceable. However, if a court of competent jurisdiction finds any of the provisions of this Agreement to be too broad to be enforceable, it is the intention of the Contractor and the Client that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, bearing in mind that it is the intention of the Client to give the Contractor the broadest possible protection against disclosure of the Confidential Information.
- No failure or delay by the Contractor in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement.
- This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns, as the case may be, of the Contractor and the Client.
- This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise.