-
Effective [DATE]
(“Effective
Date”),
[CONSULTANT NAME]
(“Consultant”) and
[COMPANY]
(“Company”), a Delaware corporation,
agree (this “Agreement”) as
follows:
1.
Services and
Payment.
Consultant agrees to undertake
and complete the Services (as
defined
in Exhibit A) in accordance with and on the
schedule specified in Exhibit A. As
the
only consideration due Consultant regarding the
subject matter of this Agreement,
Company will pay Consultant in
accordance with Exhibit A.
2.
Ownership; Rights; Proprietary
Information; Publicity.
2.1.
Company shall own all right, title and interest
(including patent rights, copyrights,
trade secret rights, mask work rights,
trademark rights,
sui
generis
database rights and all
other rights of any sort throughout the
world) relating to any and all inventions (whether
or not patentable), works of
authorship, mask works, designations, designs,
know-how,
ideas and information made or
conceived or reduced to practice, in whole or in
part, by
Consultant in connection with
Services or any Proprietary Information (as
defined below)
(collectively,
“Inventions”) and Consultant will promptly
disclose and provide all
Inventions to
Company. All Inventions are works made for hire to
the extent allowed by
law. In addition,
if any Invention does not qualify as a work made
for hire, Consultant
hereby makes all
assignments necessary to accomplish the foregoing
ownership.
Consultant shall further
assist Company, at Company’s expense, to further
evidence,
record and perfect such
assignments, and to perfect, obtain, maintain,
enforce, and defend
any rights
assigned. Consultant hereby irrevocably designates
and appoints Company and
its agents as
attorneys?in?fact to act for and in Consultant’s
behalf to execute and file any
document
and to do all other lawfully permitted acts to
further the foregoing with the
same
legal force and effect as if executed by
Consultant.
2.2. Consultant agrees that
all Inventions and all other business, technical
and financial
information (including,
without limitation, the identity of and
information relating to
customers or
employees) Consultant develops, learns or obtains
in connection with
Services or that are
received by or for Company in confidence,
constitute “Proprietary
Information.”
Consultant will hold in confiden
ce and
not disclose or, except in
performing
the Services, use any Proprietary Information.
However, Consultant shall not
be
obligated under this paragraph with respect to
information Consultant can document is
or becomes readily publicly available
without restriction through no fault of
Consultant.
Upon termination and as
otherwise requested by Company, Consultant will
promptly
return to Company all items
and copies containing or embodying Proprietary
Information,
except that Consultant may
keep its personal copies of its compensation
records and this
Agreement. Consultant
also recognizes and agrees that Consultant has no
expectation of
privacy with respect to
Company’s telecommunications, networking or
information
processing systems
(including, without limitation, stored computer
files, e-mail messages
and voice
messages) and that Consultant’s activity, and any
files or messages, on or using
any of
those systems may be monitored at any time without
tant further
agrees that any property
situated
on the Company’s premises and
owned, leased or
otherwise possessed by
the Company, including computers, computer files,
email,
voicemail, storage media, filing
cabinets or other work areas, is subject to
inspection by
Company personnel at any
time with or without notice.
2.3. As
additional protection for Proprietary Information,
Consultant agrees that during
the
period over which it is (or is supposed to be)
providing Services (i) and for one year
thereafter, Consultant will not
encourage or solicit any employee or consultant of
Company to leave Company for any
reason, and (ii) Consultant will not engage in any
activity that is in any way competitive
with the business or demonstrably anticipated
business of Company, and Consultant
will not assist any other person or organization
in
competing or in preparing to compete
with any business or demonstrably anticipated
business of Company.
2.4. To
the extent allowed by law, Section 2.1 and any
license to Company hereunder
includes
all rights of paternity, integrity, disclosure and
withdrawal and any other rights
that
may be known as or referred to as “moral rights,”
“artist’s rights,” “droit moral,” or
the like. Furthermore, Consultant
agrees that notwithstanding any rights of
publicity,
privacy or otherwise
(whether or not statutory) anywhere in the world
and without any
further compensation,
Company may and is hereby authorized to use
Consultant’s name
in connection with
promotion of its business, products and services
and to allow others to
do
so
.
To the extent any of the
foregoing is ineffective under applicable law,
Consultant
hereby provides any and all
ratifications and consents necessary to accomplish
the
purposes of the foregoing to the
extent possible. Consultant will confirm any such
ratifications and consents from time to
time as requested by Company.
2.5. If
any part of the Services or Inventions is based
on, incorporates, or is an
improvement
or derivative of, or cannot be reasonably and
fully made, used, reproduced,
distributed or otherwise exploited
without using or violating technology or
intellectual
property rights owned or
licensed by Consultant and not assigned hereunder,
Consultant
hereby grants Company and
its successors a perpetual, irrevocable, worldwide
royalty-
free, nonexclusive,
sublicensable right and license to exploit and
exercise all such
technology and
intellectual property rights in support of
Company’s exercise or
exploitation of
the Services, Inventions, other work performed
hereunder, or any assigned
rights
(including any modifications, improvements and
derivatives of any of them).
3.
Warranty.
Consultant
warrants that: (i) the Services will be performed
in a
professional and workmanlike
manner and that none of such Services or any part
of this
Agreement is or will be
inconsistent with any obligation Consultant may
have to others;
(ii)
all
work under this Agreement shall be Consultant’s
original work and none of the
Services
or Inventions or any development, use, production,
distribution or exploitation
thereof
will infringe, misappropriate or violate any
intellectual property or other right of
any person or entity (including,
without limitation, Consultant); (iii) Consultant
has the
full right to provide the
Company with the assignments and rights provided
for herein;
(iv) Consultant shall
comply with all applicable laws and Company safety
rules in the
course of performing the
Services and (v)
if Consultant’s work
requires a license,
Consultant has
obtained that license and the license is in full
force and effect.
4.
Termination.
If either party
materially breaches a material provision of this
Agreement,
the other party may
terminate this Agreement upon five (5) days
written notice unless the
breach is
cured within the notice period. Company also may
terminate this Agreement at
any time,
w
ith or without cause, upon ten (10)
days’ notice, but, if (and only if) without
cause, Company shall upon termination
pay Consultant all unpaid and undisputed
amounts due for Services completed
prior to notice of termination. Sections 2
(subject to
the limitations on Section
2.3 stated therein) through 8 of this Agreement
and any
remedies for breach of this
Agreement shall survive any termination or
expiration.
Company may communicate
such obligations to any other (or potential)
client or
employer of Consultant.
5.
Relationship of the
Parties.
Notwithstanding any provision
hereof, for all purposes of
this
Agreement each party shall be and act as an
independent contractor and not a partner,
joint venturer, or agent of the other
and shall not bind nor attempt to bind the other
to any
contract. Consultant is an
independent contractor and is solely responsible
for all taxes,
withholdings, and other
statutory or contractual obligations of any sort,
including, but not
limited to, workers’
compensation insurance. Con
sultant
agrees to indemnify, defend and
save
Company harmless from any and all claims and
threatened claims by any third party,
including employees of either party,
arising out of, under or in connection with:
5.1. The death or bodily injury of any
third party, including any agent, employee,
customer, business invitee or business
visitor of Company but only to the extent caused
or contributed to by Consultant, or the
damage, loss or destruction of any tangible
personal or real property but only to
the extent caused or contributed to by the
Consultant;
or
5.2. An act
or omission of Consultant in its capacity as an
employer of a person and
arising out of
or relating to: (i) federal, state or other laws
or regulations for the
protection of
persons who are members of a protected class or
category or persons,
(ii) sexual
discrimination or harassment, (iii) work related
injury or death, (iv) accrued
employees
benefits and (v) any other aspect of the
employment or contractual
relationship
or its termination (including claims for breach of
an express or implied
contract of
employment) and which, with respect to each of the
clauses (i) through (v)
arose when the
person asserting the claim, demand, charge, action
or other proceeding
was or purported to
be an employee or independent contractor of
Consultant.
6.
Assignment.
This Agreement
and the services contemplated hereunder are
personal to
Consultant and Consultant
shall not have the right or ability to assign,
transfer, or
subcontract any
obligations under this Agreement without the
written consent of
Company. Any attempt
to do so shall be void.
7.
Notice.
All notices under
this Agreement shall be in writing, and shall be
deemed given
when personally delivered,
sent by confirmed telecopy or other electronic
means, or three
(3) days after being
sent by prepaid certified or registered U.S. mail
to the address of the
party to be
noticed as set forth herein or such other address
as such party last provided to
the
other by written notice.
8.
Miscellaneous.
The failure of
either party to enforce its rights under this
Agreement at
any time for any period
shall not be construed as a waiver of such rights.
No changes or
modifications or waivers
to this Agreement will be effective unless in
writing and signed
by both parties. In
the event that any provision of this Agreement
shall be determined to
be illegal or
unenforceable, that provision will be limited or
eliminated to the minimum
extent
necessary so that this Agreement shall otherwise
remain in full force and effect
and
enforceable. This Agreement shall be governed by
and construed in accordance with
the
laws of the state of New York without regard to
the conflicts of laws provisions
thereof. Any legal action or proceeding
relating to this Agreement shall be brought
exclusively in the state or federal
courts located in New York County, New York, and
each party consents to the jurisdiction
any action or proceeding to enforce
rights under this Agreement, the
prevailing party will be entitled to recover costs
and
attorneys’
fees.
Headings herein are for convenience of reference
only and shall in no
way affect
interpretation of the breach or threatened breach
of Sections 2,
3 or 6 this Agreement
will cause irreparable harm to the Company for
which damages
would not be an adequate
remedy, and, therefore, the Company is entitled to
injunctive
relief with respect thereto
(without the necessity of posting any bond) in
addition to any
other remedies. This
Agreement constitutes the complete and exclusive
agreement
between the parties
concerning its subject matter and supersedes all
prior or
contemporaneous agreements or
understandings, written or oral, concerning the
subject
matter described herein.
EXHIBIT A
Services & Fees
Services:
[ADD
DESCRIPTION OF SERVICES]
Term:
[
If the
services are for a fixed term, state the term
here; alternatively, if no fixed
term
is stated, insert the following, “The term will
continue until the Services are
completed or the Agreement is
terminated under Section
4, whichever
occurs first.”
]
[TERMS]
Fees:
[
Choose
among different options below
]
[HOURLY OR MONTHLY] fee of $$ [FEE RATE]
Exclusive of travel time; payablesemi-
monthly in arrears 30 days after receipt of
itemized invoice, with a cap of $$ [CAP
AMOUNT] in the aggregate.
Flat fee of $$
[FLAT FEE AMOUNT]
Payable 30 days after
timely completion of the following milestones
prior to termination: