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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 101019
Experience:  Lawyer
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Customer Question

I Have received a Job Agreement for the position of General Manager of Project Operations. I have a concern about hoy they may act against me if they think that I broke the Agreement as detailed in Clause 7, which also mentions Clauses 5 & 6.
I also want to get confirmation from the Employer that the Estimation, Design and Project management Departments will report to me.
THIS EMPLOYMENT AGREEMENT (the “Agreement”) dated as of the ____ day of ____________, 2016.
UNISON CONSTRUCTION MANAGEMENT LTD., having an address at: 200 - 900 West Hastings Street, Vancouver, B.C. V6C 1E5
(the “Company”)
Enrique Ramirez, having an address at:
578 Carlsen Place, Port Moody, B.C. V3H 3Z8
(the “Employee”)
WITNESS THAT WHEREAS the Company wishes to employ the Employee under the terms and conditions contained herein.
THEREFORE in consideration of the covenants and agreements set out in this Agreement, and for other good and valuable consideration given by each party to the other, the receipt and sufficiency of which are hereby acknowledged by each of the parties, the parties hereby agree as follows:
1.1. Position: The Company will employ the Employee as General Manager, The Employee will be responsible for and perform the duties commensurate with the position of General Manager of Projects Operations , including those set out in the attached Schedule “A” as well as any other duties that may be reasonably assigned to the Employee by the Company from time to time. The Employee’s duties and responsibilities may be altered from time to time and without notice at the Company’s sole discretion, and such alteration will not constitute a breach of the terms of the Employee’s employment.
1.2. Term: The Employee’s employment with the Company under this Agreement will commence on February ___, 2016 and will end when terminated in accordance with Section 4 of this Agreement (the “Term”).
1.3. Service: During the Term the Employee will:
(a) well and faithfully serve the Company and use the Employee’s best efforts to promote the best interests of the Company;
(b) devote the whole of the Employee’s working time and attention to the business of the Company.
(c) not, without the prior written consent of the Company, which may be withheld at the sole discretion of the Company, engage in any other business, profession or occupation, or become involved in any capacity, directly or indirectly, with any other employer or business, where the Employee’s engagement or involvement conflicts or interferes with, or could reasonably conflict or interfere with at some future date, the Employee’s performance of their duties and obligations to the Company; and
(d) comply and become familiar with all of the Company’s policies and procedures as amended from time to time.
2. COMPENSATION AND BENEFITS: During the Term, the Company will pay to the Employee the compensation and provide the benefits as set out in Schedule "B", which sets out completely the compensation and benefits entitlement of the Employee for all hours worked and all services provided to the Company pursuant to this Agreement. All amounts set out in Schedule “B” are subject to required deductions. The Company may, from time to time, at its sole discretion, adjust the Employee’s compensation and benefits.
3. EXPENSES: The Employee will be reimbursed by the Company for reasonable business expenses incurred by the Employee in the furtherance of or in connection with the performance of the Employee’s duties under this Agreement, in accordance with the general policies and procedures of the Company as amended from time to time.
4.1. Termination by the Employee: The Employee may terminate their employment with the Company at any time by giving 2 weeks prior written notice of termination to the Company, which notice may be waived in whole or in part by the Company.
4.2. Termination by Company: The Company may terminate the employment of the Employee without just cause at any time during the Term by providing the Employee with the greater of:
(a) any minimum entitlements to written notice of termination, payment in lieu of such notice, or a combination of written notice of termination and payment in lieu of such notice, required by the British Columbia Employment Standards Act; or
The Employee agrees that the notice required or amount payable pursuant to Subsection 4.3 will be the maximum notice or compensation to which the Employee is entitled in lieu of reasonable notice, and the Company will have no further obligations to the Employee with respect to the termination of this Agreement or the Employee’s employment with the Company, including without limitation further severance pay or damages.
4.3. Termination by the Company for Just Cause: Notwithstanding any other provision of this Agreement, the Company may terminate this Agreement and the Employee’s employment with the Company at any time for just cause, without prior notice or pay in lieu of notice or any other form of compensation, severance pay or damages.
5.1. Non Disclosure of Information of the Company: The Employee acknowledges that by reason of the Employee’s employment with the Company the Employee will have access to Confidential Information of the Company. The Employee understands and acknowledges the importance of maintaining the security and confidentiality of Confidential Information, both during the Term and indefinitely after the Term. The Employee will, both during and indefinitely after the Term, maintain the confidentiality of the Confidential Information (as defined in Section 5.2). The Employee will use and disclose the Confidential Information only during the Term and only as required for the performance of the Employee’s employment duties and obligations under this Agreement. The Employee will not use or disclose any Confidential Information for the Employee’s personal advantage or the advantage of any other person or entity. Nothing in this Agreement will prevent the Employee’s use or disclosure of information which is publicly available or which is required to be disclosed under applicable laws or legal process.
5.2. Confidential Information: For the purposes of this Agreement, “Confidential Information” means all information in any form, whether written, electronic, or oral, about or owned, used or licensed by the Company and its related companies, including without limitation information about their businesses, financial information, credit information and pricing information, compensation data, customer lists, customer preferences, business interests, marketing strategies, new services research, pending projects and proposals and research and development strategies, information relating to employees and independent contractors, assets, liabilities, software, scientific interests, customers, members, website users, suppliers and customers of their suppliers, and all other information that is not generally, lawfully available to third parties or is treated by the Company or its related companies and by the Company’s customers, suppliers, strategic partners and other third parties who have furnished information to the Company under obligations of confidentiality.
5.3. Return of Confidential Information and Property: The Employee will at any time upon request by the Company, and immediately upon the termination of the Employee’s employment, promptly return to the Company all originals or copies of Confidential Information and any other property belonging to, or relating to the business of, the Company or its subsidiaries, parents, affiliates and related companies. The Employee also agrees to permanently delete and destroy any copies of Confidential Information from any of the Employee’s personal electronic devices immediately upon the termination of the employment of the Employee for any reason.
5.4. Use of Other Persons’ Confidential Information: The Employee represents and warrants to the Company that the Employee does not have in the Employee’s possession, and will not for the Employee’s benefit or the Company’s benefit obtain, use or disclose, any confidential information belonging to any other person or entity, including without limitation any of the Employee’s former employers.
6.1. Non-Solicitation: For a period of twelve (12) months after the termination of the Employee’s employment for any reason, the Employee will not directly or indirectly:
(a) contact or communicate with any Customer for the purpose of offering for sale any products or services that are the same as or similar to those offered by the Company;
(b) solicit, divert, or take away from the Company the business of any Customer;
(c) service, or otherwise enter into contractual relations with, any Customer of the Company for the purpose of offering for sale any products or services that are the same as or similar to those offered by the Company; or
(d) solicit or encourage any employee or contractor of the Company with whom the Employee became acquainted as a result of the Employee’s employment with the Company to terminate their relationship with the Company.
“Customer” means any person to whom the Company provided products or services in the twelve (12) months prior to the termination of the Employee’s employment and with whom the Employee became acquainted with as a result of their employment with the Company
No Conflicting Duties or Obligations – The Employee represents and warrants to the Company that the Employee does not owe, and the Employee will not during the Term undertake or agree to, any contractual or other duties or obligations to any other person or entity which may conflict or interfere with this Agreement or any of the Employee’s duties and obligations under this Agreement, or which may prevent the Employee from entering into this Agreement or performing any of the Employee’s duties and obligations under this Agreement.
6.2. Other Duties - The restrictions contained in Section 5 and this Section 6 of this Agreement are in addition to and do not derogate from any other duties and obligations (including fiduciary obligations) the Employee may have to the Company under any applicable laws.
7.1. Injunctive Relief: The Employee acknowledges and agrees that the covenants and obligations under Sections 5 and 6 of this Agreement are reasonable, necessary and fundamental to the protection of the Company’s legitimate business interests and that a violation of any of the covenants contained in Section 5 and 6 of this Agreement will cause irreparable harm or damage to the Company, the exact amount of which would be impossible to ascertain, and for this reason, among others, the Company will be entitled to obtain injunctive relief restraining any further violations of such covenants, without the necessity of providing any undertaking as to damages or meeting any requirements for security. The Employee hereby also acknowledges and agrees that, in the event of a violation of any of the covenants contained in this Agreement, an injunctive or restraining order is a reasonable and proper remedy. The right of the Company to any injunction or other equitable relief under this paragraph is in addition to, and not a limitation of, any other rights or remedies that the Company may have against the Employee.
7.2. Severability: The Employee acknowledges that each provision of this Agreement is a separate and distinct covenant and if any covenant or provision herein is determined to be unreasonable, void, voidable or unenforceable, in whole or in part, by a court of competent jurisdiction, such determination will not affect or impair, and will not be deemed to affect or impair, the validity of any other covenant or provision hereof, and each covenant and provision herein is hereby declared to be separate, severable and distinct.
7.3. Governing Law: This Agreement and all related matters will be governed by, and construed in accordance with, the laws of British Columbia and the laws of Canada applicable in British Columbia (excluding any choice of law rules).
7.4. Enurement: This Agreement enures to the benefit of and is binding upon the parties and their respective heirs, executors, administrators, successors, personal representatives and permitted assigns.
7.5. Assignment of Rights: The Company may assign this Agreement to another person or entity. The Employee will not assign his rights under this Agreement or delegate to others any of the Employee’s functions and duties under this Agreement, without the express written consent of the Company which consent may be withheld in the Company’s sole discretion.
7.6. Legal Advice: The Employee acknowledges that it was recommended by the Company that the Employee obtain independent legal advice before executing this Agreement, and represents that by executing this Agreement the Employee has had the opportunity to do so.
7.7. Confidentiality of Agreement: The Employee will keep confidential and not disclose any of the terms of this Agreement to any person unless required to do so by law or for the purpose of obtaining confidential legal, financial or tax planning advice.
7.8. Entire Agreement: This Agreement and the attached Schedules constitutes the entire agreement between the Employee and the Company regarding the Employee’s employment with the Company, and supersedes all prior oral or written understandings and agreements regarding the Employee’s employment. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Employee and the Company other than as expressly set forth in this Agreement.
7.9. Survival: Section 4 (Termination of Agreement and Employment), Section 5 (Confidentiality), Section 6 (Restricted Activities) and Subsections 7.1 (Injunctive Relief), 7.2 (Severability) 7.3 (Governing Law), 7.7 (Confidentiality of Agreement), Section 7.8 (Entire Agreement) and 7.9 (Survival) and all other provisions of this Agreement necessary for the interpretation or enforcement of any of those Sections, will survive indefinitely after the termination of the Employee’s employment or the termination of this Agreement.
IN WITNESS WHEREOF the parties have hereto have duly executed this Agreement as of the day and year first above written."
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.

Do you understand what an injunction means?

Customer: replied 1 year ago.
Hi. No I don't.
Customer: replied 1 year ago.
I just googled it:
An injunction is an equitable remedy in the form of a court order that compels a party to do or refrain from specific acts. A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court.
Customer: replied 1 year ago.
Sorry; Are you still there?
Expert:  Debra replied 1 year ago.

I am sorry for the delay. I answered at once but the reply clearly did not go up and this has happened to me several times today. I don't know why that happens but I am truly sorry.

What I had said in my earlier answer is that they are essentially telling you that if you sign the agreement they are you consenting to them getting an order for the injunction. They want this because getting an injunction is very expensive and very hard to do.

It it not that common to see this in a contract. I was surprised to see it myself.

What they want to be able to do is stop you from harming them and causing them damages by using confidential information, soliciting their customers, unfairly competing etc.

So they don't just want you to agree you won't do that (and all of this is common) but they want you to agree that they can easily stop you.

I am not saying that is a bad thing to agree with but it is just going a bit further than most go.

Do you see what I mean?

Customer: replied 1 year ago.
I understand. Thanks for your answer.
I guess the question is if based on their own judgement (no proofs) they can try to sew me for any amount of money the consider.
Expert:  Debra replied 1 year ago.

It's not that you are agreeing you will owe them whatever they say you do.

It is giving them the opportunity to get an injunction more easily.

But this is a complicated legal document and the issues are complex and what they are asking is more onerous than usual and I personally think you should be getting actual legal advice from an employment lawyer with whom you consult face to face who may be able to make some suggestions on amending the wording for you that they employer will accept.

Customer: replied 1 year ago.
I thought you could repharase it. Is this not part of youir legal advice?
Expert:  Debra replied 1 year ago.

No. I am not permitted to do that. That will be practicing law and I cannot do that online. Only your own lawyer can provide that type of service. I am sorry about that.