This is a typical(?) contract used by courier companies to contractout of employment responsibilities. However no court in Ontario has ruledon these contracts because no one has asked the Court to rule on them.Ontario did rule that Taxi drivers must be considered employees, and BritishColumbia recently forced courier companies to do away with these contracts(but only for bike messengers and not cars). According to Revenue Canadaguidelines and Ontario Labour Laws an Ontario court would most definitelydeclare these contracts illegal and messengers would be declared employeesin accordance with the laws of the province of Ontario.
Also the Workers Compensation Board has ruled that bike and foot couriersare "workers" and are automatically covered by the Act no matterwhat the courier company says.
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS AGREEMENT made as of the_______day of _______19__
EXPLOITER MESSENGER SERVICE LTD
123 Illegal Blvd. Suite 666, Toronto, Ontario
(hereinafter called " EXPLOITER ")
OF THE FIRST PART
(Name of Contractor)
(Address of Contractor)
(hereinafter called the "Contractor ")
OF THE SECOND PART
WHEREAS EXPLOITER and the contractor have entered into or are aboutto enter into an Contractual relationship for their mutual benefit wherebythe Contractor provides certain courier services to EXPLOITER:
AND WHEREAS as a condition of entering into and/or continuing such Contractualrelationship. EXPLOITER has required that the Contractor enter into thisAgreement:
NOW THEREFORE IN CONSIDERATION OF the premises and other good and valuableconsideration the receipt and sufficiency of which is hereby acknowledgedthe parties hereby agrees as follows:
1. Definition. Whenever used in this Agreement the following words andphrases shall have the following respective meanings:
(a) "Affiliate" shall mean any entity a majority of whosevoting shares or securities are owned or controlled directly or indirectlyby EXPLOITER or the shareholders of EXPLOITER. or whose control is heldby EXPLOITER or the shareholders of EXPLOITER.
(b) "Confidential Information" shall mean information in anyform not generally known to the public, disclosed to or acquired by theContractor directly or indirectly from EXPLOITER or any clients, businesspartners or affiliates of EXPLOITER during the term of the Contractor'scontract with EXPLOITER, including, without limitation:
(i) information relating to the research, developments systems, operations,clients and business activities of EXPLOITER or its business partners orAffiliates:
(ii) information received from any clients, business partners or Affiliatesof EXPLOITER:
(iii) information specifically designated by EXPLOITER as confidential:
(iv) information specifically designated by a client. business partneror Affiliate of EXPLOITER as confidential: and
(v) information required to be maintained in confidence by EXPLOITERpursuant to an agreement with a client. business partner. or associateor other person:
but shall not include any information which was known to the Contractorprior to the date of the Contractor's contract with EXPLOITER or whichwas publicly disclosed otherwise than by breach of this Agreement.
2. Confidentiality. The Contractor acknowledges that (i) during hisor her contract with EXPLOITER, he or she will acquire Confidential Information:(ii) EXPLOITER has and will enter into agreements with clients and otherswhereby EXPLOITER agrees to maintain the confidentiality of certain information:(iii)disclosure of Confidential information to others will be highly detrimentalto both the interests of EXPLOITER and its clients: and (iv)ConfidentialInformation is the property of EXPLOITER and/or its clients, business partnersor Affiliates, as the case may be. Accordingly the contractor agrees that:
(a) the Contractor will not. at any time. disclose any ConfidentialInformation to any other person not an employee of EXPLOITER. nor willthe Contractor use Confidential Information for any purpose other thanrequired by his or her contract with EXPLOITER: and
(b) the Contractor will not. at any time, or in any way take or reproduceConfidential Information unless required by his or her contract with EXPLOITER.The Contractor will. upon termination of his or her contract with EXPLOITER.return to EXPLOITER all Information an his or her possession or under hisor her control whether such Confidential Information belongs to EXPLOITERor otherwise. The Contractor will also return all property then in hisor her possession or under his or her control which belongs to EXPLOITERor its Affiliates
3. Non-Competition. The Contractor acknowledges that he or she willacquire considerable knowledge about, and expertise in, certain areas ofEXPLOITER business and that he or she will have knowledge of, and contractwith, customers and suppliers of EXPLOITER and its Affiliates. The Contractorfurther acknowledges that he or she may well be able to utilize such knowledgeand expertise, following termination of his or her service with EXPLOITER.to the serious detriment of EXPLOITER in the event that the Contractorshould solicit business from customers of EXPLOITER or its Affiliates.Accordingly the Contractor agrees that:
(a) he or she will not, for a period of two (2) years after terminationof his or her contract with EXPLOITER, directly or indirectly, approachany customer or business partner of EXPLOITER or its Affiliates for thepurpose of providing services substantially similar to the services providedby EXPLOITER or its affiliates: and
(b) he or she will not, for a period of two (2) years after terminationof his or her contract with EXPLOITER, directly or indirectly, approachsolicit, entice or attempt to approach, solicit or entice any of the employeesor other contractors of EXPLOITER or its Affiliates to leave the employmentof or terminate their contract with EXPLOITER.
4. Relationship. The Contractor acknowledges and agrees that all servicesperformed for EXPLOITER pursuant to the contract for courier services shallbe as an independent contractor. Nothing contained in this Agreement shallbe deemed to create any association, partnership, joint venture, or relationshipof principal and agent or employer and employee between the parties heretoor to provide either party with the right, power or authority, whetherexpressed or implied to create any such duty or obligation on behalf ofthe other party. The contractor also agrees that he or she will not holdhimself or herself out as an affiliate of or partner, joint venturer. co-principalor co-employer with EXPLOITER by reason of this Agreement. In the eventthat EXPLOITER is adjudicated to be a partner, joint venturer, co-principalor co-employer of or with the Contractor, the Contractor shall indemnifyand hold harmless EXPLOITER from and against any and all claims for loss,liability or damages arising there from. The Contractor further acknowledgesand agrees that he or she will be responsible for remitting all of hisor her income taxes and hereby indemnifies and holds harmless EXPLOITERfrom and against any liability EXPLOITER may suffer or incur as a resultof being required to pay any such taxes.
5. General Provisions.
(a) The Contractor acknowledges that all restrictions in this Agreementare reasonable in the circumstances and hereby waives all defenses to theenforcement thereof by EXPLOITER. In the event that any provisions of thisAgreement shall be deemed void or invalid by a court of competent jurisdiction,the remaining provisions shall be and remain in full force and effect andthe Contractor hereby confers upon such court the power to replace suchvoid or invalid provisions with such other enforceable and valid provisionsas shall be as near as may be to the original in form and effect.
(b) The Contractor acknowledges that breach by him or her of the termsand conditions of this Agreement may cause irreparable harm to EXPLOITERwhich may not be compensable by monetary damages. Accordingly, the Contractoracknowledges that a breach by it of the terms and conditions of this Agreementshall be sufficient grounds for the granting of an injunction at the suitof EXPLOITER by a court of competent jurisdiction.
(c) This Agreement shall be governed by and construed in accordancewith the laws of the Province of Ontario.
(d) This Agreement is the entire agreement between the Contractor andEXPLOITER relating to the subject matter hereof and stands in the placeof any previous agreement. whether oral or in writing. The Contractor agreesthat no amendment to this Agreement shall be binding upon the parties unlessit is in writing and executed by both parties
(e) This Agreement will enure to the benefit of the successors and assignsof EXPLOITER.
[Note only car couriers are required to obtain a license plate inToronto. Although it is not enforced and I have never seen one single courierlicense plate on a car - EVER]
6. The Broker must have a Metro Licensing Commission plate and mustsubscribe to the Companyís cargo insurance package unless equal or greatercoverage can be substantiated by the Broker by showing the original andproviding a copy of the Broker's current insurance policy.
7. Services by the Broker will paid for by the Company on the basisof 60% commission payable on a bi-weekly basis with a two (2) week holdbackuntil the Broker attains his Metro Licensing Commission plate, at whichtime his commission will increase to 65%.
8. Commissions will only be paid on waybills that have legible signatureswith date and time of delivery that have been returned to the Company by9 a.m, the second (2nd) day following the delivery, at the latest. Allothers will not be paid for, The Broker's invoice must be handed in onthe day of cheque pick-up or no monies will be released.
9. All errors in payment by the Company will be dealt with by adjustmenton the Broker's next payment. provided proper documentation and a writtennotice accompanies your claim,
10. The Broker is responsible for the goods entrusted to him to theextent of the terms and conditions on the waybill, including re-imbursementfor said articles in the event of loss, damage or disappearance while inthe care of the Broker, In the event a proof of delivery is not returnedby the Broker, the Company will deem those articles to be lost and ArticleFour (4) of this agreement will be in full effect.
11. The Broker will be responsible for all charges if he does not advisethe Company before delivery, on any order that has a "Charge to"or "Bill to" on the waybill that is different from where thepick-up was made.
12. When a waybill calls for C.O.D. (Cash on Delivery) it is the Broker'sresponsibility to collect these funds. If failing to do so. and the Brokersubsequently is unable to collect these monies, the Company has the rightto deduct these from any commissions due and payable to said Broker.
Once collected, all C.O.D., money must be handed in with the waybill.
13. Any money collected for delivery charges that are payable to theCompany, must be handed in the following morning along with applicablewaybill.
14. The radio supplied to the Broker is, and will always remain, theproperty of the Company and if not returned on demand, will be consideredstolen and reported to the local authorities.
The rental fee will be deducted from the Brokerís commission chequeat a rate of $42.50 (forty two dollars and fifty cents) bi-weekly.
The Company is responsible for maintenance due to regular wear and tear,however, any repairs required as a result of the Brokerís negligence, willbe charged to the Broker and deducted from his commission cheque,
15. Upon ceasing to provide services for the Company for whateverreason, the Broker's last commission cheque will be held for forty-five(45) days after the last regular commission cheque.
16. All Brokers must be clean and clean shaven and suitably dressedin clean outerwear or uniform and must at all times be wearing their EXPLOITERidentification badge. [note: No such badge exists]
17. The Company will deduct 20% from the Broker's last invoice shouldthe Company not receive a minimum of two (2) weeks notice when the Brokercancels his contract with the Company. [Even though the company can firethe contractor with no notice at all and for no reason at all - and theywon't hire you in the first place if you don't start right away therebyforgoing the two weeks notice to your current company]
THE UNDERSIGNED ACKNOWLEDGES HAVING READ OVER THIS AGREEMENT AND UNDERSTANDSTHE SAME AND AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS THEREOF.
Accepted by EXPLOITER MESSENGER SERVICE LTD. by:_______________________
Date: Day_________ Month:_________ Year
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