Terms & Conditions
Terms of service
(a) Contractor agrees to perform for the Company the services (“Services”) described in the project description herein incorporated by reference.
(b) The Company agrees to pay Contractor the compensation set forth in any and all Exhibits attached, and additional addendums related to the performance of the Services.
(c) Contractor does not guarantee the use of reports generated as a result of Services as fit for any specific purpose or use. All reports created for Company are used at the Company’s discretion. Any purpose for which reports are utilized is at the Company’s own risk and liability. Contractor does not guarantee any specific outcomes based on information gathered or reports generated.
(d) Contractor is not a legal service provider and no advice, guidance, or information provided to Company is meant to constitute legal advice. Additionally, Contractor does not advise on the legality of any action taken as a result of the reports produced. Company certifies that they have consulted appropriate legal counsel in regards to this Agreement, or had adequate time to consult legal counsel if they so desire.
(e) Company is responsible for, and hereby certifies that, they will take all reasonable and necessary steps to properly inform all employees, contractors, or third parties that monitoring of communications is taking place. Contractor assumes no liability for any damage, judicial action, or other consequences stemming from monitoring of the communications.
(f) Company is fully aware of any and all software, access, technology, or other means being utilized to monitor communications, and hereby certifies that they have approved all monitoring.
(g) Contractor is not acting in a medical or therapeutic capacity, and no advice or consulting rendered is meant to constitute medical advice.
(a)Definition. “Confidential Information” means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by the Company either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment.
(b) Non-Use and Non-Disclosure. Contractor will not, during or subsequent to the term of this Agreement, use the Company’s Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of the Company or disclose the Company’s Confidential Information to any third party. It is understood that said Confidential Information shall remain the sole property of the Company. Contractor further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not limited to, having each employee of Contractor, if any, with access to any Confidential Information, execute a nondisclosure agreement containing provisions in the Company’s favor identical to Sections 2, 3 and 4 of this Agreement. Confidential Information does not include information which is known to Contractor at the time of disclosure to Contractor by the Company as evidenced by written records of Contractor, has become publicly known and made generally available through no wrongful act of Contractor, or has been rightfully received by Contractor from a third party who is authorized to make such disclosure.
(c) Third Party Confidential Information. Contractor recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Contractor agrees that Contractor owes the Company and such third parties, during the term of this Agreement and thereafter, a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out the Services for the Company consistent with the Company’s agreement with such third party.
(d) Return of Materials. Upon the termination of this Agreement, or upon Company’s earlier request, Contractor will deliver to the Company all of the Company’s property or Confidential Information that Contractor may have in Contractor’s possession or control.
(a)Assignment. Unless specifically exempted in Exhibit B, Contractor retains the intellectual property rights and ownership over all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets (collectively, “Inventions”) conceived, made or discovered by Contractor, solely or in collaboration with others, during the period of this Agreement which relate in any manner to the business of the Company that Contractor may be directed to undertake, investigate or experiment with, or which Contractor may become associated with in work, investigation or experimentation in the line of business of Company in performing the Services hereunder. Company agrees to assign (or cause to be assigned) and does hereby assign fully to the Contractor all Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. Company further acknowledges that all Inventions which constitute original works of authorship (solely or jointly with others) within the scope of and during the term hereof which qualify for protection by copyright are not “works made for hire” as that term is defined in the United States Copyright Act.
- CONFLICTING OBLIGATIONS
Contractor and Company certify that neither has an outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude either from complying with the provisions hereof, and both further certifies that each Party will not enter into any such conflicting agreement during the term of this Agreement.
- TERM AND TERMINATION
(a) Term. This Agreement will commence on the date first written above and will continue until termination as provided below.
(b) Termination. Either party may terminate this Agreement upon giving two weeks prior written notice thereof.
(c) Survival. Upon such termination all rights and duties of the parties toward each other shall cease except:
(i) that the Company shall be obliged to pay, within thirty (30) days of the effective date of termination, all amounts owing to Contractor for Services completed and accepted by the Company prior to the termination date and related expenses, if any, in accordance with the provisions of Section 1 (Terms of Service) hereof; and
(ii) Sections 2 (Confidentiality), 3 (Ownership), 7 (No Employment Status) and 8 (Indemnification) shall survive termination of this Agreement.
Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by Contractor for any reason.
- NO EMPLOYMENT STATUS
Contractor is not an employee of the Company. Contractor acknowledges and agrees that Contractor is obligated to report as income all compensation received by Contractor pursuant to this Agreement, and Contractor agrees to and acknowledges the obligation to pay all self-employment and other taxes thereon.
Company agrees to defend, indemnify, and hold harmless the Contractor, along with its partners, owners, members, principals, employees, contractors, attorneys, agents, and representatives (individually, an “Indemnified Party” and collectively, the “Indemnified Parties”), for, against, and from (a) all third party claims arising out of or related to Contractor’s work, work product, actions, and statements made during the course of providing services under this Agreement, including any losses, costs, damages, expenses (including, without limitation, attorneys’ fees) or other liabilities incurred by the Contractor in responding to such third party claims, and (b) liabilities, claims (including, without limitation, claims and liabilities relating to remediation, bodily injury and property damage), causes of action, suits, judgments, damages, losses, costs, and expenses (including, without limitation, court costs, reasonable attorneys’ fees, and costs of work) of any nature (individually and collectively, “Losses”), to the extent arising out of, resulting from or incurred as a result of Contractor’s work, work product, actions, or statements made during the term of this Agreement or in the course of performing the services described in any and all individual Project Addendums. Company further agrees to indemnify and hold harmless the Contractor and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from (i) a determination by a court or agency that the Contractor is not an independent contractor, or (ii) any breach by the Contractor or Contractor’s assistants, employees or agents of any of the covenants contained in this Agreement. The indemnification in this paragraph 8 shall not be limited because all or any part of any losses are (a) covered by insurance and/or (b) partially attributable to the conduct or alleged negligence of any indemnified party.
Contractor acknowledges and agrees and it is the intent of the parties hereto that Contractor receive no Company-sponsored benefits from the Company either as a Contractor or employee. Such benefits include, but are not limited to medical insurance and 401(k) participation.
- PERSONAL JURISDICTION AND FORUM SELECTION
(a)Consent to Personal Jurisdiction. Contractor hereby consents to the personal jurisdiction of the state and federal courts located in Texas for any action or proceeding arising from or relating to this Agreement or relating to any arbitration or meditation in which the parties are participants.
(b) Forum Selection. Contractor hereby agrees to bring any and all claims, legal proceedings, or litigation related to or arising out of this Agreement in Travis County, Texas.
(c) Acknowledgment. Contractor has read and understands:
SECTION 2, WHICH DISCUSSES CONFIDENTIALITY,
SECTION 3, WHICH DISCUSSES OWNERSHIP,
SECTION 8, WHICH DISCUSSES INDEMNIFICATION;
AND SECTION 10, WHICH DISCUSSES PERSONAL JURISDICTION AND FORUM SELECTION.
- GOVERNING LAW
It is the understanding and agreement of the parties that this Agreement shall be governed by the laws of the State of Texas, without regard to conflict of law provisions.
- ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by duly authorized representatives of the parties hereto.
- ATTORNEYS’ FEES
In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and to the extent permitted and possible, the invalid or unenforceable provision shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.