NON-COMPETITION and CONFIDENTIALITY AGREEMENT
THIS NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (hereinafter referred
to as the “agreement”) made as of the 5 day of March, 2007, between DMI ENGINEERING
INC. (hereinafter referred to as the “Employer”) and ________________ (hereinafter
referred to as the “Employee”);
WHEREAS the Employer is engaged in engineering and project management
and conducts its business with various industries throughout the Province of Alberta.
AND WHEREAS the Employer has employed the Employee as a project
manager in accordance with the terms and conditions outlined in a letter or memorandum
prepared by the Employer (the “Employment Agreement”).
AND WHEREAS the Employee has, as part of the Employment Agreement,
agreed to not compete with the business carried on by the Employer and to keep certain
information confidential, on and subject to the terms hereof.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration
of the mutual covenants and agreements contained herein and in the Employment Agreement
(the receipt and sufficiency of which are hereby acknowledged by each of the Employer and
Employee), the Employer and Employee agree as follows:
Section 1. Extended Meanings.
1.1 In this Agreement (including this clause and the premises and recitals hereof),
unless there is something in the subject or context inconsistent therewith, words importing
the singular number shall include the plural and vice versa, words importing the masculine
gender shall include the feminine and neuter genders and the expression following shall have
the following meanings, respectively:
(a) “Agreement”, “this Agreement”, “herein”, “hereby”, “hereof”, “hereunder”, and
similar expressions mean or refer to this agreement (including the Schedules,
if any, attached hereto) and any amendments, modifications, supplements or
restatements hereto, from time to time;
(b) “Confidential Information” has the meaning ascribed to such term in Section
(c) “Developments” has the meaning ascribed to such term in Section 2.6 hereof;
(d) “Party” or “Parties” means a party or parties to this Agreement; and
(e) “Person” means individuals, firms, corporations, bodies corporate, companies,
trusts, partnerships, joint ventures, associations, unincorporated organizations,
governmental bodies and other entities.
Section 2. Confidential Information and Proprietary Rights.
2.1 This Section applies without restricting any obligations, covenants or
agreements which the Employee may have, under the Employment Agreement or any other
Agreement, entered into with the Employer.
2.2 In the course of the Employee’s employment with the Employer, the Employee
may obtain information relating to the Employer, its respective affiliates or associates, the
business or any technology and technical data as it relates to the Employer’s business, all of
which is of a confidential and proprietary nature, including but not limited to trade secrets,
know-how, inventions, techniques, processes, formulas, programs, intellectual property,
computer programs, computer software, source codes, documentation, data, service manuals,
technical reports, customer lists, financial information and reports, management methods,
operating techniques, procedures and methods, prospective acquisitions, employee lists,
training manuals and procedures, personnel evaluation procedures, collection procedures and
sales and marketing plans (hereinafter referred to as the “Confidential Information”).
2.3 During the course of and after the period Employee’s employment with the
Employer, the Employee shall not, without the written consent of the Employer, divulge or
allow access to the Confidential Information to any Person, except where:
(a) such Confidential Information is available to the public generally in the form
(b) such disclosure of the Confidential Information is compelled by the applicable
law or by order of a court.
2.4 The Employee shall prevent the Confidential Information from being used or
acquired by any unauthorized Person.
2.5 The Employee shall not use any such Confidential Information of the Employer,
which the Employee may have acquired in the course of or incidental to his employment as
stated in the Employment Agreement or otherwise, whether for his own benefit or the
detriment, or intended or probable detriment of the Employer, or for any reason whatsoever,
in competing with the Employer at any time during or after his employment by the Employer.
2.6 The Employee specifically acknowledges that he will be employed to work on
and develop computer software and programs and that as an employee he will have no rights
of ownership in any intellectual property, computer software or programs developed by the
Employer, and the Employee hereby agrees to waive any legal or moral rights which he may
have in the intellectual property, computer software or programs or the source code or any
other material created for such intellectual property, computer software or programs (all of
the foregoing hereinafter referred to as the “Intellectual Property”). All developments,
including Intellectual Property and inventions, whether patentable or otherwise, trade secrets,
discoveries, improvements, ideas and writings which either directly related to or may be
useful in the course of the Employee’s employment (collectively, the “Developments”) which
the Employee, either by himself or in conjunction with any other Person has conceived, made,
developed, acquired or acquired knowledge of during his employment by or association with
the Employer shall be and remain the sole and exclusive property of the Employer.
2.7 The Employee hereby assigns, transfers and conveys, and agrees to so assign,
transfer and convey, all of his rights, titles and interests in and to any and all such
Developments and to disclose fully as soon as practicable, in writing, all such Developments
to the Employer.
2.8 At any time and from time to time, upon the request and at the expense of the
Employer, the Employee will execute and deliver any and all instruments, documents and
papers, give evidence and do any and all other acts which, in the reasonable opinion of the
Employer, are or may be necessary or desirable to document such transfer or to enable the
Employer to file and prosecute applications for and to acquire, maintain and enforce any and
all patents, trademark registrations or copyrights under Canadian or foreign law with respect
to any such Developments or to obtain any extension, validation, re-issue, continuance or
renewal of any such patent, trademark or copyright.
2.9 The Employer will be responsible for the preparation of any such instruments,
documents and papers and for the prosecution of any such proceedings and will reimburse
the Employee for all reasonable expenses incurred by the Employee in complying with the
provisions of this Section.
Section 3. Non-Competition.
3.1 This Section applies without restricting any obligations, covenants or
agreements which the Employee may have, under the Employment Agreement or any other
Agreement, entered into with the Employer.
3.2 The Employee shall not, during the course of and for a period of three (3) years
from the date of the termination of the Employee’s employment with the Employer (such
period not to include any period of violation hereof or period to enforce the covenants herein)
for any cause whatsoever, without the prior written consent of the Employer, within the
Province of Alberta, either individually or in partnership or in conjunction with any person or
persons, firm, association, syndicate, company or corporation, as officer, director, employee,
principal, agent, representative, consultant, investor, independent contractor, or in any other
manner whatsoever, directly or indirectly:
(a) carry on, be engaged in, be interested in, or be concerned with, or permit his
name or any part thereof to be used or employed by any such person or
persons, firm, association, syndicate, company or corporation, carrying on,
engaged in, interested in or concerned with, a business in competition with the
Employer or any of its subsidiaries or affiliates, or a business which is or was a
customer of the Employer; or
(b) solicit, induce, or attempt to persuade any officer, agent or employee of the
Employer to terminate his employment with the Employer or to breach any
employment contract with the Employer, nor shall the Employee advise any
person or persons, firm, association, syndicate, company or corporation not to
do business with the Employer or any of its subsidiaries or affiliates.
3.3 The Employee confirms that all restrictions in this Section 3 are reasonable and
valid, and he waives all defences to the strict enforcement thereof.
3.4 The covenant in this Section 3 shall not be held invalid or unenforceable
because of the scope of the territory, or actions subject hereto or restricted hereby, or the
period of time within which this covenant is operative; but the maximum territory, the actions
subject to this covenant, and the period of time in which this covenant is enforceable are
subject, respectively, to determination by a final judgment of any court that has jurisdiction
over the parties and subject matter.
Section 4. Severability and Waiver.
4.1 In the event that any provision contained in this Agreement shall be declared
invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction,
this Agreement shall continue in force with respect to the enforceable provisions and all rights
and remedies accrued under the enforceable provisions shall survive any such declaration,
and any non-enforceable provision shall to the extent permitted by law be replaced by a
provision which, being valid, comes the closest to the intention underlying the invalid, illegal
or unenforceable provision.
4.2 No provision hereof shall be deemed waived and no breach excused, unless
such waiver of consent excusing the breach shall be in writing and signed by the Employer,
who is to be charged with such waiver or consent.
4.3 A waiver by the Employer of any provision of this Agreement shall not be
construed as a waiver of a further breach of the same provision.
Section 5. Further Documents.
5.1 The Employee hereto will promptly and duly execute and deliver to the
Employer such further documents and assurances and take such further action as the
Employer may from time to time reasonably request in order to more effectively carry out the
intent and purpose of this Agreement and to establish and protect the rights and remedies
created or intended to be created hereby.
Section 6. Enurement and Assignment.
6.1 This Agreement shall enure to the benefit of and shall be binding upon the
Parties hereto and their respective executors, administrators, heirs, personal representatives,
and successors or assigns.
6.2 Any terms or conditions of this Agreement by which obligations of the
Employee are expressed to be applicable or which extend or may extend beyond termination
of this Agreement shall survive and continue in full force and effect, except to the extent
expressly set out herein.
6.3 This Agreement may not be assigned to any Person by the Employee without
the express written consent of the Employer.
Section 7. Remedies.
7.1 The Employee hereby agrees that the remedy at law for any actual or threatened
breach of this Agreement by the Employee would be inadequate and that the Employer shall
be entitled to specific performance hereof or injunctive relief, or both, and/or other equitable
relief, or other appropriate judicial remedy, writ, or order, in addition to any damages which
the Employer may legally be entitled to recover, together with reasonable expenses of
litigation including legal fees on a solicitor and his own client basis incurred in connection
Section 8. Headings.
8.1 The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
8.2 The word “herein” wherever used in any article, section, subsection, paragraph
or subparagraph in this Agreement, relates to the whole Agreement and not to that article,
section, subsection, paragraph or subparagraph only.
Section 9. Notices.
9.1 All notices, requests, demands or other communications by the terms hereof
required or permitted to be given by one Party to another shall be given in writing and shall
be deemed to be given when delivered in person or deposited in the Canada post mail, first
class, certified or registered, return receipt requested, with proper postage prepaid and,
(a) If to the Employee, addressed to:
(b) If to the Employer, addressed to:
DMI ENGINEERING INC.
Stony Plain, AB T7Z 1X6
or at such other place or places in Canada or to such other person or persons as shall be
designated by notice as herein provided by any Party hereto.
9.2 In the event that a notice is served by mail at a time when there is an
interruption of mail service affecting the delivery of such mail, then such notice shall not be
deemed to have been served until one (1) week after the date that normal service is restored.
Section 10. Amendment.
10.1 This Agreement may be amended only by instrument in writing signed by each
of the Parties hereto.
Section 11. Entire Agreement.
11.1 This Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof, and cancel and supersede any prior understandings and
agreements, written or oral, express or implied, between the Parties hereto in respect
Section 12. Governing Law.
12.1 This Agreement shall be deemed to have been made in the Province of Alberta
and shall be governed by, construed and enforced in accordance with the laws of the Province
12.2 Each of the Parties hereto hereby irrevocably attorns to the jurisdiction of the
courts of the Province of Alberta.
SECTION 13. INDEPENDENT ADVICE.
13.1 THE PARTIES HERETO CONFIRM THAT THEY HAVE BEEN AFFORDED
THE OPPORTUNITY TO OBTAIN INDEPENDENT ADVICE WITH RESPECT TO THIS
AGREEMENT AND CONFIRM THAT THEY ARE EXECUTING THIS AGREEMENT FREELY,
VOLUNTARILY AND WITHOUT DURESS.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first
DMI ENGINEERING INC.
CERTIFICATE OF INDEPENDENT ADVICE
I, _________________, of the ________________________, in the Province
of Alberta, Barrister & Solicitor, DO HEREBY CERTIFY:
THAT I was this day consulted in my professional capacity by
__________________, named in the within document, being a Non-Competition and
Confidentiality Agreement, dated the _____ day of ____________, 200___, as to his legal
rights and liabilities under the terms and conditions of the same, and that I acted solely for
him and explained fully to him the nature and effect of the said Agreement, and he did
execute the same in my presence, and did acknowledge and declare that he was executing
the same of his own volition and without any fear, threats, compulsion or influence of any
DATED at the ________________________, in the Province of Alberta this
_____ day of ________________, 200___.