Click here to bookmark Clausehound and search for clause/contract language

Choose from our expert-compiled document frameworks and customize from a vast library of clauses.

Santa's Got A Brand New Brand

Toronto’s Yorkdale Shopping Centre (“Yorkdale”) has forever changed the way we will visualize Santa Claus. Paul Mason, aka “Hot Santa”, was hired by Yorkdale to portray a modern Santa Claus. Through the gift of social media, Hot Santa went viral, with many oogling over the transformation of how we view Santa Claus. And, Paul Mason received instant stardom.

Source

This year, Yorkdale was not successful in re-hiring Paul Mason for the role of Santa Claus, so hired an equally handsome and modern Santa Claus, Adam Martin.

Now, Yorkdale Shopping Centre and Paul Mason are fighting over the ‘Fashion Santa’ brand that both parties took part in making a success.

A question I never thought I would ask: who has the legal rights to the “Fashion Santa”?

Both parties have filed for trademarks to ‘Fashion Santa’, and Hot Santa started registering the copyright for Fashion Santa long before he was featured at Yorkdale Shopping Centre. However there are other legal issues that need to be taken into consideration, including:

  • Whether an employment/consulting agreement was entered into between Yorkdale and ‘Fashion Santa’ and who retained ownership of the brand;
  • The similarities between the ‘Fashion Santa’ character and the new Yorkdale character.

The latter will be a complex issue, since both parties have applied for trademark registration of ‘Fashion Santa’. Since Yorkdale filed their trademark application first, it is likely that they will get priority for the trademark.

This is not the first time a character has been disputed between an employer/company and the person actually playing the character. Recently, Stephen Colbert reincarnated his famous Colbert character from The Colbert Report on his new night show.

He publicly stated his limitations due to copyright, but instead introduced his old character’s ‘twin’.

Including the following sort of clause can help protect an employer from having a person hired to play a character from taking the character with him:

“The employee/consultant understands that all proprietary information and work product is the property of the company. In addition, the employee/consultant hereby agrees to assign to the company, without further consideration, all existing and future rights that the employee/consultant may presently have or may acquire, free and clear of all liens and encumbrances, in and to the proprietary information and work product, which shall be the sole property of the company, whether or not it is registrable intellectual property.”

The contract drafter can also define ‘proprietary information’ and ‘work product’ based on the specific circumstances the contract is being drafted for. This will help to create greater certainty.

You never know what idea is going to attract instant fame, so it is always a good idea to protect yourself with the right legal document. Make sure Santa Claus has the right clause!

 

–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

What you don't know can hurt you! Subscribe to stay informed.

Sign up now and receive an email when we publish new content.

We will never give away, trade or sell your email address. You can unsubscribe at any time.

Read more...

Clausehound CEO Rajah Lehal is hosting a CPD Webinar on the Top 10 Things You Should Know about Hiring a Contract Employee

Links from this article:
here

Toronto, ON
November 8, 2016

On November 14, 2016, Rajah Lehal, Founder and CEO of Clausehound, will be hosting a legal Webinar on the topic of hiring contract employees in the context of operating a social enterprise. Rajah will also be discussing his journey as an entrepreneur, and how his experience training lawyers led to his founding of Clausehound. The Webinar session will be accredited for 1 hour towards your yearly substantive CPD requirements.

For further details on this Webinar, please click here.

About Clausehound.com: Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses and lawyers more productive.

Our $10 per month DIY Legal Library hosts tens of thousands of legal clauses, contracts, articles, lawyer commentary and instructional videos. Our professional version offers a concierge service that will assist you to should you have any questions while trying to source an agreement.

 

–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

What you don't know can hurt you! Subscribe to stay informed.

Sign up now and receive an email when we publish new content.

We will never give away, trade or sell your email address. You can unsubscribe at any time.

Read more...

Contractors need to specify payments for incomplete tasks

When drafting a work related contract, ensure that payment due for the completion of the task, as well as payment due for partial completion of the task is included and specify the degree of completion for each respective payment amount.

Generally, in a lump sum contract, there is no right to partial payment if the task specified within the contract is not completed. If a contract indicates that a contractor will charge a certain amount for the completion of a task, then the contractor cannot sue for payment resulting from partially completing a task.

Quantum merit, the reasonable value of one’s services, also will not apply unless there is a contract that specifies that payment will be required for partial completion of the task.

Sumpter v Hedges [1898] 1 QB 673 stands as precedence for this rule. In this case, Mr. Sumpter (Sumpter) was a builder, who had entered into a contract with Mr. Hedges (Hedges) to build two houses and stables for £565. Sumpter completed work valued at £333 but did not have enough money to complete the task. Hedges finished the remainder of the task, using material that Sumpter had left behind. Sumpter had already been paid part of the £565, but sued for the outstanding amount. The Court of Appeal found that Sumpter was not owed the outstanding amount because he had abandoned the contract.

Hedges did not need to reimburse Sumpter for partially completing the task. Sumpter was entitled to compensation for the value of the materials that Hedges had used to complete the task. The Court of Appeal found that where there is a contract to do work for a lump sum, payment for the work cannot be recovered until the work is completed.

Furthermore, it was found that Sumpter was not entitled to recover for the work he did on a quantum merit. For quantum merit to exist there must be evidence of a new contract that specifies payment for the work previously completed. Quantum merit can also exist where there is evidence that the defendant had the option to take benefit of the work done. Had

Hedges been given the option of benefitting from partially completed buildings, then Sumpter may be entitled to quantum merit, however; as in the case of work done on buildings, the defendant is given not given an option to take benefit of the work done or not. As a result, Sumpter is not entitled to quantum merit. Duty of Good Faith

As a side note, it is also useful to include a duty of good faith as a provision within the contract, as this duty will obligate the party receiving the goods/services to honour an equitable or fairness obligation to provide payment for useful services received.

 

–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

What you don't know can hurt you! Subscribe to stay informed.

Sign up now and receive an email when we publish new content.

We will never give away, trade or sell your email address. You can unsubscribe at any time.

Read more...

Wood v. Enbridge Gas Distribution Inc., 2011 ONSC

Discussion: This case deals primarily with the distinction between an employee and an independent contractor. Although the parties in this case intended to structure their relationship so that the applicant would be regarded as an independent contractor, the parties conduct indicated otherwise. The main difference between an employee and an independent contractor lies with the element of CONTROL that the employer has over the worker. Factors to consider when assessing whether a worker is an employee or an independent contractor include:

  • The level of control the employer has over the worker’s activities
  • Whether the worker provides his or her own equipment
  • Whether the worker hires his or her own helpers
  • The degree of financial risk taken by the worker
  • The degree of responsibility for investment and management held by the worker
  • The worker’s opportunity for profit in the performance of his or her tasks

Facts:

  • Applicant worked for the defendant as a pipe fitter.

    He was seriously injured while removing a decommissioned gas standpipe.

  • The applicant started an action for damages, alleging that he was working as an independent contractor for the employer at the time of the injury.
  • The respondents commenced a right to sue application under s. 31 of the Workplace Safety and Insurance Act (the Act), which authorizes the tribunal to determine whether, because of this Act the right to commence an action is taken. S. 27 and 28 of the Act prohibit a worker injured in the course of employment from suing his or her employer if he was injured while acting in the capacity of an employee or worker at the relevant time and is not an independent contractor
  • The tribunal allowed the application of the respondents and held that the applicant was not entitled to sue. The applicant seeks judicial review of this decision.

Issue:

  • Was the tribunal accurate in its conclusion that the applicant was an employee of the defendant and therefore not allowed to sue.

Rule:

  • The Workplace Safety and Insurance Appeals Tribunal is entitled to judicial deference on the reasonableness standard.

  • Contractual arrangements can be used to supplement viva voce evidence, provided that the written word corresponds with the manner in which the parties actually conduct themselves. In these cases, the law is concerned with what people actually do and not what they agreed to do. More importantly, the law will not blindly accept the classification label the parties have placed on their relationship (Joey’s Delivery Service v. New Brunswick (Workplace Health, Safety and Compensation Commission)

Analysis:

  • Although the parties intended to structure their relationship so that the applicant would be regarded as an independent contractor, the parties’ conduct indicates otherwise. The Tribunal noted that the respondent continued to pay a salary to the applicant when he was off work and after he returned to work on modified duties; the applicant’s earnings were reported to the Workplace Safety and Insurance Board; the respondent exercised a high degree of control over the applicant’s work; the applicant did not hire his own helpers; the applicant had marginal financial risk; the applicant had no meaningful opportunity for profit. The Tribunal’s decision fell within the range of possible and acceptable outcomes that were defensible with regard to the facts and the law. It was not unreasonable.

Conclusion:

  • Application dismissed.

 

–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

What you don't know can hurt you! Subscribe to stay informed.

Sign up now and receive an email when we publish new content.

We will never give away, trade or sell your email address. You can unsubscribe at any time.

Read more...

Contractors need to specify payments for incomplete tasks

When drafting a work related contract, ensure that payment due for the completion of the task, as well as payment due for partial completion of the task is included and specify the degree of completion for each respective payment amount.

Generally, in a lump sum contract, there is no right to partial payment if the task specified within the contract is not completed. If a contract indicates that a contractor will charge a certain amount for the completion of a task, then the contractor cannot sue for payment resulting from partially completing a task. Quantum merit, the reasonable value of one’s services, also will not apply unless there is a contract that specifies that payment will be required for partial completion of the task.

Sumpter v Hedges [1898] 1 QB 673 stands as precedence for this rule.

In this case, Mr. Sumpter (“Sumpter”) was a builder, who had entered into a contract with Mr. Hedges (“Hedges”) to build two houses and stables for £565. Sumpter completed work valued at £333 but did not have enough money to complete the task. Hedges finished the remainder of the task, using material that Sumpter had left behind. Sumpter had already been paid part of the £565, but sued for the outstanding amount.

The Court of Appeal found that Sumpter was not owed the outstanding amount because he had abandoned the contract. Hedges did not need to reimburse Sumpter for partially completing the task. Sumpter was entitled to compensation for the value of the materials that Hedges had used to complete the task. The Court of Appeal found that where there is a contract to do work for a lump sum, payment for the work cannot be recovered until the work is completed.

Furthermore, it was found that Sumpter was not entitled to recover for the work he did on a quantum merit.

For quantum merit to exist there must be evidence of a new contract that specifies payment for the work previously completed. Quantum merit can also exist where there is evidence that the defendant had the option to take benefit of the work done. Had Hedges been given the option of benefitting from partially completed buildings, then Sumpter may be entitled to quantum merit, however; as in the case of work done on buildings, the defendant is given not given an option to take benefit of the work done or not. As a result, Sumpter is not entitled to quantum merit.

Duty of Good Faith

As a side note, it is also useful to include a duty of good faith as a provision within the contract, as this duty will obligate the party receiving the goods/services to honour an “equitable” or “fairness” obligation to provide payment for useful services received.

 

–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

What you don't know can hurt you! Subscribe to stay informed.

Sign up now and receive an email when we publish new content.

We will never give away, trade or sell your email address. You can unsubscribe at any time.

Read more...

Non-competition Clauses: Is 5 Years Too Long to Promise not to Compete?

Employment Contracts

Non-competition clauses are often found in employment and consulting contracts. Generally speaking, these clauses have to be as narrow as possible, covering only the geographic area, time period, and type of work needed to protect the legitimate interests of the employer. Courts will usually not enforce clauses that make it difficult for the employee to earn a living when they leave the job. Five years would likely be too long in most cases.

 

Sale of a Business

But non-competition clauses are also found in contracts for the sale of a business. Once you have sold your business, how long can you be required to wait before you can open another business to compete with the one you sold? This question was considered by the Supreme Court of Canada, in a situation where the former owner also became an employee of the new business owner. (Payette v. Guay Inc., 2013 SCC 45)

 

Guay was a crane rental company which purchased assets from another crane rental business owned by Payette. As part of the agreement the parties agreed that Payette would work for Guay for six months and was, thereafter, to be bound within the province of Quebec by a non-solicitation and non-competition clause for 5 years. Payette worked for the Guay for over four years until being fired and then began to work for a competitor. Shortly after, several of Guay’s most experienced employees followed and began working for the competitor as well.

 

The Court considered several factors, including the sale price of the business, the access to legal guidance and the parties’ expertise and experience. The Court found that the parties had negotiated on an equal footing as informed businesses and the sale was of substantial value. The Court held the 5 year restrictive clause was reasonable because of the specialized nature of the crane business, and that the large geographic location was reasonable because of the mobility of the crane rental business.

 

Conclusion

As the owner of a business, you are unlikely to be able to require your employees not to compete for 5 years after they leave the job, but if you sell your business and then work for that business, it is much more likely that 5 years would be an enforceable time period, depending on the nature of the business. This is because the courts recognize that when you sell your business, the purchaser is paying for the goodwill of that business, and for the right to carry on that business without competition from you.

 

Takeaways:

  • non-competition clauses in sale of business agreements are likely to be enforceable if the businesses negotiated on an equal footing
  • non-competition clauses in employment contracts must be limited to only what is needed to protect the legitimate business interests of the employer
  • the reasonableness of the time, geographic, and work restrictions on competition will depend on the circumstances of each contract

 

–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

What you don't know can hurt you! Subscribe to stay informed.

Sign up now and receive an email when we publish new content.

We will never give away, trade or sell your email address. You can unsubscribe at any time.

Read more...

Payment Terms May Be the Most Important Part of a Consulting Agreement

Links from this article:
Read the article here.

While it seems obvious that billing and payment of expenses should be clearly dealt with in consulting contracts, many parties fail to address such details as: What happens if expenses are submitted late? Are original receipts required? How will payment be made? What types of expenses are covered? What is the procedure for authorizing expenses? Will verbal authorizations be accepted?

Other key concepts for consulting contracts include: ownership of IP, warranties by the consultant of the quality of their work, confidentiality, and cancellation/termination of the contract. Consultants should carefully review the contractual description of the project. It is important that both parties are clear on the extent of the work to be done. Equally important are any schedules to the agreement. These schedules often contain some of the most important details.

Read the article here.

Take away:

  • Payment terms in consulting contracts should should be clear and detailed and enforceable.

 

–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

What you don't know can hurt you! Subscribe to stay informed.

Sign up now and receive an email when we publish new content.

We will never give away, trade or sell your email address. You can unsubscribe at any time.

Read more...

Stanford Loses Patent battle Because Researcher Signed Visitor’s Confidentiality Agreement When Visiting a Private Lab

Links from this article:
Read the article here.

Universities need to be very careful about what agreements they have researchers sign, and especially vigilant with respect to consulting agreements signed in the course of joint ventures between the university and industry.

In Stanford v. Roche, both parties claimed ownership of the IP in the research and technology related to a procedure for calculating the amount of HIV in a patient’s blood. This technique allowed doctors to determine whether a patient was benefiting from HIV therapy. Roche commercialized the technique in HIV kits, which are used in hospitals and AIDS clinics worldwide. The dispute came about because the Stanford researcher signed a Copyright and Patent Agreement (CPA) when he began his employment with Stanford, assigning all his IP rights resulting from his employment, to the university. Stanford entered into a consulting relationship with the private lab that originally developed the technology, to improve the methods for quantifying the HIV in a patient’s blood. When the researcher visited the facilities of the private lab, he signed another agreement, unaware that it conflicted with the earlier agreement he had signed with the university.

This ‘Visitor’s Confidentiality Agreement (VCA)’ assigned to the lab all future IP developed as a consequence of his access to the lab. Roche subsequently acquired the ownership of all the lab’s IP. The university was unaware of this agreement. When the process was commercialized by Roche, Stanford University sued for breach of patent rights.

In the end, Roche won, as confirmed by the Supreme Court of the United States.

Read the article here.

Take away:

  • Consultants must take care that they do not sign conflicting IP Transfer agreements.

 

–  –  –

This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

What you don't know can hurt you! Subscribe to stay informed.

Sign up now and receive an email when we publish new content.

We will never give away, trade or sell your email address. You can unsubscribe at any time.

Read more...
Additional Rent Announcements API Approval of Terms Asset Purchase Agreement Background Intellectual Property Board of Directors Business Case Law CASL Clausehound Collaboration Commercial Lease Confidential Information Confidentiality Consulting Agreement Contract Drafting Contract Negotiations Corporation Costs and Expenses CPD Definition of Intellectual Property Dispute Resolution Distribution Agreement Employee Employment Employment Agreement ESOP Events Farming Law Generally Used Clauses Grant of Licence Handling of Confidential Information Indemnity Independent Contractor Independent Legal Advice Informal Discussions Intellectual Property Investor Journey Licence Restrictions Limitation of Liability Long Form Marriage Contract Master Services Agreement NDA Non-competition Not for Profit Articles of Incorporation Notice of Arbitration No Waiver Obligations Ownership of Intellectual Property Ownership of Work Product Parties Partnership Prenuptial Agreements Privacy Policy Product Sales Agreement Purpose Representations and Warranties Restrictive Covenants Safeguarding Requirements Settlement Agreement Shareholder Agreement Software Development Start-up Subscription Agreement Technology Termination Term Sheet Terms of Use Trademark Registration Transfer of Intellectual Property Waivers and Releases Website Terms of Use
Show All Tags