This independent contractor agreement (the “Agreement”) is made and entered into as of [DATE OF AGREEMENT] (the “Effective Date”) between [CLIENT NAME], of [CLIENT COMPANY] (the “Client”), and [DEVELOPER NAME], of [DEVELOPER COMPANY] (the “Developer”) (collectively, the “Parties”).
The Client requests the Developer to perform services for the Client and may request the Developer to perform other services in the future; and
The Parties therefore agree as follows:
1.0. Term and Termination
1.1. This Agreement shall commence upon the Effective Date, and shall remain effective until the Developer has completed the Services (the "Term"), unless earlier terminated under this Section 1.
1.2. This Agreement may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties, or if any Party:
(a) is in material breach of this Agreement and has failed to cure such breach within 20 days of written notice of such breach provided by the non-breaching Party;
(ii) engages in any unlawful business practice related to that Party's performance under the Agreement; or
(iii) files a petition for bankruptcy, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or has a receiver, trustee or similar party appointed for its property.
1.3 Upon expiration or termination of this Agreement:
(i) Each Party shall return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party; and,
(ii) Other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.
2.0. Developer Services
2.1. During the Term, the Client may engage the Developer to provide the following services as needed (the "Services"), or other such services as mutually agreed upon in writing by the Parties (email is acceptable):
Describe all of the services the Developer is expected to perform under this agreement, or otherwise reference an attached schedule of services.
2.2. The Developer shall provide the necessary equipment to perform the Services. If the Developer has obtained employees or agents (the "Developer Personnel"), the Developer shall be solely responsible for all costs associated with the Developer Personnel.
2.3 As a result of providing the Services, the Developer or Developer Personnel may create certain work product (the "Work Product").
2.4. The Developer shall notify the Client of any change(s) to the Developer’s schedule that could adversely affect the availability of the Developer, whether known or unknown at the time of this Agreement, no later than _____ prior to such change(s). If the Developer becomes aware of such change(s) within the ____ period, the Developer shall promptly notify the Client of such change(s) within a reasonable amount of time.
2.5. The work performed by the Developer shall be performed at the following rate: _______________. The Developer shall issue invoices to the Client's accounts payable department within ___ days of completing the Services, unless otherwise instructed by the Client, and provide documentation as instructed by the Client's accounts payable department. The Client shall remit payment to the Developer within ___ days of receiving the invoice from the Developer.
2.6. The Client shall not be responsible for federal, state and local taxes derived from the Developer's net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers' compensation, disability benefits or other legal requirements applicable to the Developer.
3.0. Independent Contractor Status
3.1. The Parties intend that the Developer and any Developer Personnel be engaged as independent contractors of Client. Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
3.2. The Developer may not act as agent for, or on behalf of, the Client, or to represent the Client, or bind the Client in any manner.
3.3. The Developer will not be entitled to worker's compensation, retirement, insurance or other benefits afforded to employees of the Client.
4.1. The Parties intend that, to the extent the Work Product or a portion of the Work Product qualifies as a "work made for hire," within the definition of Section 101 of the Copyright Act of the United States (17 U.S.C. § 101), it will be so deemed a work made for hire. If the Work Product or any portion of the Work Product does not qualify as work made for hire, and/or as otherwise necessary to ensure the Client's complete ownership of all rights, titles and interest in the Work Product, the Developer shall transfer and assign to the Client all rights, titles and interests throughout the world in and to any and all Work Product. This transfer and assignment includes, but is not limited to, the right to publish, distribute, make derivative works of, edit, alter or otherwise use the Work Product in any way the Client sees fit.
4.2. The Client grants the Developer, a limited, non-exclusive, non-transferable, non-assignable, royalty free, worldwide license to display the Work Product on a platform personally controlled, in whole or in part, by the Developer. The Client may revoke this license at any time by requesting the removal of the Work Product displayed by the Developer. Upon such request, the Developer shall remove the Work Product from the platform, and provide written notification of such removal.
Both Parties represent that they are fully authorized and empowered to enter into this Agreement, and that the performance of the obligations under this Agreement will not violate or infringe upon the rights of any third-party, or violate any agreement between the Parties and any other person, firm or organization or any law or governmental regulation.
The Developer shall indemnify and hold harmless the Client, its affiliates, and its respective officers, directors, agents and employees from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of, or relating to, the Developer’s services under this Agreement.
7.0. Confidential Information
7.1 Each Party (on its behalf and on behalf of its subcontractors, employees or representatives, or agents of any kind) agrees to hold and treat all confidential information of the other Party, including, but not limited to, trade secrets, sales figures, employee and customer information and any other information that the receiving Party reasonably should know is confidential (“Confidential Information”) as confidential and protect the Confidential Information with the same degree of care as each Party uses to protect its own Confidential Information of like nature.
7.2 Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publicly available sources generally known by the public (other than as a result of a disclosure by the receiving Party or its representatives); (ii) is available to the receiving Party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving Party without violating its obligations under this Agreement or under any federal or state law.
EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.
9.0. Disclaimer of Warranty
THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. EACH PARTY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE Client DOES NOT PROVIDE ANY WARRANTY THAT OPERATION OF ANY SERVICES HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE.
10.0. Miscellaneous Provisions
10.1. This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.
10.2. This Agreement may be amended only by written agreement duly executed by an authorized representative of each party (email is acceptable).
10.3. If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.
10.4. This Agreement shall not be assigned by either party without the express consent of the other party.
10.5. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
10.6. This Agreement is be governed by and construed in accordance with the laws of the State of [JURISDICTION STATE] without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either party arising out of this Agreement will only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in the State of [JURISDICTION STATE]. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN THE STATE OF [JURISDICTION STATE].
The Parties are signing this Agreement on the date stated in the introductory clause.