- (i) perform the Services set forth in Exhibit A. However, if a conflict exists between this agreement and any term in Exhibit A, the terms in this agreement will control;
- (ii) devote as much productive time, energy, and ability to the performance of its duties under this agreement as may be necessary to provide the required Services in a timely and productive manner;
- (iii) perform the Services in a safe, good, and workmanlike manner by fully trained, skilled, competent, and experienced personnel using at all times adequate equipment in good working order;
- (iv) communicate with the Company about progress the Consultant has made in performing the Services;
- (v) supply all tools, equipment, and supplies required to perform the Services, except if the Consultant's work must be performed on or with the Company's equipment;
- (vi) ensure that all materials and equipment furnished to its personnel is of good and merchantable quality, unless otherwise agreed by the Company;
- (vii) (vi) provide services (including the Services) and end products that are satisfactory and acceptable to the Company and free of defects; and
- (viii) (vii) remove, replace, or correct all or any portion of the work or end products found defective or unsuitable, without additional cost or risk to the Company.
2. TERM AND TERMINATION.
- (a)Term. This agreement will become effective as described in section 21. Unless it is terminated earlier in accordance with subsection 2(b), this agreement will continue until the Services have been satisfactorily completed and the Consultant has been paid in full for those Services (the "Term"). However, this agreement may not remain effective for more than years.
- (b)Termination. This agreement may be terminated:
- (i) by either party on provision of days' written notice to the other party, with or without cause;
- (ii) by either party for a material breach of any provision of this agreement by the other party, if the other party's material breach is not cured within days of receipt of written notice of the breach; or
- (iii) by the Company at any time and without prior notice, if the Consultant is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Company, or is guilty of serious misconduct in connection with performance under this agreement . ; or
- (iv) automatically, on the death of the Consultant.
3. COMPENSATION.
- (a) Terms and Conditions. The Company shall pay the Consultant in accordance with Exhibit A.
- (b)No Payments in Certain Circumstances. No payment will be payable to the Consultant under any of the following circumstances:
- (i) if prohibited under applicable government law, regulation, or policy;
- (ii) if the Consultant did not directly perform or complete the Services described in Exhibit A;
- (iii) if the Consultant did not perform the Services to the reasonable satisfaction of the Company; or
- (iv) if the Services performed occurred after the expiration or termination of the Term, unless otherwise agreed in writing.
4. NATURE OF RELATIONSHIP; INVENTIONS.
- (a)Independent Contractor Status.
- (i) The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party's behalf, and neither party may take any action that creates the appearance of such authority;
- (ii) The Consultant has the sole right to control and direct the means, details, manner, and method by which the Services will be performed, and the right to perform the Services at any time, place, or location. The Consultant or the Consultant's staff shall perform the Services, and the Company is not required to hire, supervise, or pay any assistants to help the Consultant perform those Services. The Consultant shall provide insurance coverage for itself and its staff.
5. USE OF TRADEMARKS.
The Consultant may use, reproduce, and distribute the Company's service marks, trademarks, and trade names (if any) (collectively, the "Company Marks") in connection with the performance of the Services. Any goodwill received from this use will accrue to the Company, which will remain the sole owner of the Company Marks. The Consultant may not engage in activities or commit acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company's interest in the Company Marks. The Consultant may not cause diminishment of value of the Company Marks through any act or representation. The Consultant may not apply for, acquire, or claim any interest in any Company Marks, or others that may be confusingly similar to any of them, through advertising or otherwise. At the expiration or earlier termination of this agreement, the Consultant will have no further right to use the Company Marks, unless the Company provides written approval for each such use.
6. CONFIDENTIAL INFORMATION.
- (a)Confidentiality. During the Term, the Consultant may have access to or receive certain information of or about the Company that the Company designates as confidential or that, under the circumstances surrounding disclosure, ought to be treated as confidential by the Consultant ("Confidential Information"). Confidential Information includes information relating to the Company or its current or proposed business, financial statements, budgets and projections, customer identifying information, potential and intended customers, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media. The Consultant will treat the Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill its obligations in this agreement. In addition, the Consultant shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
- (b)Exceptions. The obligations and restrictions in subsection (a) do not apply to that part of the Confidential Information:
- (i) was or becomes publically available other than as a result of a disclosure by the Consultant in violation of this agreement;
- (ii) was or becomes available to the Consultant on a nonconfidential basis before its disclosure to the Consultant by the Company, but only if:
- A. the source of such information is not bound by a confidentiality agreement with the Company
- or is not otherwise prohibited from transmitting the information to the Consultant by a contractual,
- legal, fiduciary, or other obligation; and
- B. the Consultant provides the Company with written notice of its prior possession either (I) before
- the effective date of this agreement or (II) if the Consultant later becomes aware (through disclosure
- to the Consultant) of any aspect of the Confidential Information as to which the Consultant had prior
- possession, promptly on the Consultant so becoming aware;
- A. provide the Company with prompt notice of these requests or requirements before making a
- disclosure so that the Company may seek an appropriate protective order or other appropriate
- remedy; and
- B. provide reasonable assistance to the Company in obtaining any protective order. If a protective
- order or other remedy is not obtained or the Company grants a waiver under this agreement, the
- Consultant may furnish that portion (and only that portion) of the Confidential Information that, in
- the written opinion of counsel reasonably acceptable to the Company, the Consultant is legally
- compelled or otherwise required to disclose. However, the Consultant shall make reasonable efforts
- to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential
- Information disclosed in this way; or
- (c)Obligation to Maintain Confidentiality.
- (i) Confidentiality. At all times during its work with the Company, the Consultant shall hold in strictest confidence, and not use, except for the benefit of the Company, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any of the Company's Confidential Information.
- (ii) Term. The Consultant shall maintain the confidentiality and security of the Confidential Information until the earlier of: (A) such time as all Confidential Information disclosed under this agreement becomes publicly known and is made generally available through no action or inaction of the Consultant or (B) the anniversary of the termination of the Consultant's work with the Company. However, to the extent that the Company has disclosed information to the Consultant that constitutes a trade secret under law, the Consultant shall protect that trade secret for as long as the information qualifies as a trade secret.
7. REPORTING.
The Consultant shall report to or such other officer or employee as may be designated by the Company. The Consultant shall provide a written summary report to the Company on its progress. Reports shall consist of . The Contractor shall not be required to provide regular reports to the Company.
8. OTHER ACTIVITIES.
During the Term, the Consultant is free to engage in other independent contracting activities, except that the Consultant may not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Consultant's obligations or the scope of Services to be rendered for the Company under this agreement.
9. RETURN OF PROPERTY.
Within days of the expiration or earlier termination of this agreement, the Consultant shall return to the Company, retaining no copies or notes, all Company products, samples, models, property, and documents relating to the Company's business including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials and copies of those materials obtained by the Consultant during and in connection with its work with the Company. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork or creative work, notebooks, and similar items relating to the Company's business, whether prepared by the Consultant or by others, remain the Company's exclusive property.
10. INDEMNIFICATION.
- (a)Of Company by Consultant. At all times after the effective date of this agreement, the Consultant shall indemnify the Company from all damages, liabilities, expenses, claims, or judgments (including interest, penalties, reasonable attorneys' fees, accounting fees, and expert witness fees) (collectively, the "Claims") that the Company may incur and that arise from:
- (i) the Consultant's negligence or willful misconduct arising from the Consultant's carrying out of its obligations under this agreement;
- (ii) the Consultant's breach of any of its obligations or representations under this agreement; or
- (iii) the Consultant's breach of its express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If a regulatory body or court of competent jurisdiction finds that the Consultant is not an independent contractor or is not in compliance with applicable laws related to work as an independent contractor, based on the Consultant's own actions, the Consultant will assume full responsibility and liability for all taxes, assessments, and penalties imposed against the Consultant or the Company resulting from that contrary interpretation, including taxes, assessments, and penalties that would have been deducted from the Consultant's earnings if the Consultant had been on the Company's payroll and employed as a Company employee.
- (i) the Company's operation of its business;
- (ii) the Company's breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party; or
- (iii) the Company's breach of any of its obligations or representations under this agreement. However, the Company is not obligated to indemnify the Consultant if any of these Claims result from the Consultant's own actions or inactions.
11. FORCE MAJEURE.
A party will not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this agreement by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party's reasonable control (each a "Force Majeure Event"). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable:
- (a) notify the other party of the Force Majeure Event and its impact on performance under this agreement; and
- (b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this agreement.
12. GOVERNING LAW.
- (a)Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
- (b)Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in County, .
13. AMENDMENTS.
No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
14. ASSIGNMENT AND DELEGATION.
- (a)No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
- (b)No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
- (c)Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
15. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a)Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b)Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
16. SEVERABILITY.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
17. NOTICES.
- (a)Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b)Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Company:
- ,
- If to the Consultant:
- ,
- (c)Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
18. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
19. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
20. HEADINGS.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
21. EFFECTIVENESS.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
22. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
[SIGNATURE PAGE FOLLOWS]
Each party is signing this agreement on the date stated opposite that party's signature.
Date:__________________________________ By:____________________________________________________________
Name:
Title:Date:__________________________________ By:____________________________________________________________
Name:
Title:[PAGE BREAK HERE]
EXHIBIT A DUTIES, SPECIFICATIONS, AND COMPENSATION 1. DUTIES.
The Consultant shall perform the following services: .
2. SPECIFICATIONS.
The parties agree to the following additional specifications about the work/services to be provided: . The parties agree that specifications about the services will be provided at a later date.
3. COMPENSATION.
As full compensation for the Services rendered under this agreement, the Company shall pay the Consultant the sum of , to be paid as a lump-sum payment on when the Services are completed. a fee of , payable in installments. according to the following schedule:
- (A) The first installment of is due when is completed. (A) The first installment of is due on .
- (B) The second installment of is due when is completed. (B) The second installment of is due on .
- (C) The third installment of is due when is completed. (C) The third installment of is due on .
- (D) The fourth installment of is due when is completed. (D) The fourth installment of is due on .
- (E) The fifth installment of is due when is completed. (E) The fifth installment of is due on .
[SIGNATURE PAGE FOLLOWS]
Each party is signing this Exhibit A on the date stated opposite that party's signature.
Date:______________________________ By:____________________________________________________________
Name:
Title:By:____________________________________________________________
Name:
Title:[PAGE BREAK HERE]
EXHIBIT B LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP 1. Except as listed in section 2 below, the following is a complete list of all Prior Inventions that were made, conceived, or first reduced to practice by the Consultant, alone or jointly with others, before its agreement with the Company:
add border Title Date Identifying Number or Brief Description The Consultant has no inventions or improvements to list _____________
(Initials)I have attached _____ additional sheets to this Exhibit B. _____________
(Initials)2. Because of an existing confidentiality agreement and the duties of confidentiality that the Consultant owes to the parties listed below, the Consultant cannot complete the disclosure in section 1 above with respect to the inventions or improvements listed generally below:
add border Invention or Improvement Party Names Relationship I have attached _____ additional sheets to this Exhibit B. _____________
(Initials)Date: __________________________________ By:____________________________________________________________
Name:
Title: