INDEPENDENT CONTRACTOR AGREEMENT

For Provision of Programming Services

 

      This INDEPENDENT CONTRACTOR AGREEMENT FOR PROGRAMMING SERVICES ("Agreement") is made and entered into as of this _____ day of ___________________, 20___, by and between ____________________________ ("Programmer"), and BAY SQUARE, INC., a Florida corporation, ("Developer"). 

 

 

BACKGROUND INFORMATION

 

      WHEREAS, Developer is in the business of authoring web sites and performing related services for clients of the Developer (“Clients”).

 

      WHEREAS, Developer has the needs from time to time to retain the services of a programmer to create certain functional [Portions Omitted - included In fully Licensed Version]integrated into the overall web site design.

 

      WHEREAS, Programmer has background and experience in performing certain programming services that may be needed by the Developer from time to time.

 

      WHEREAS, Developer desires to engage Programmer as an independent contractor to perform programming  services for Developer and Programmer is willing to perform such services, on the terms and conditions set forth below.

 

      NOW THEREFORE, in  consideration of the mutual promises contained herein, the parties agree as follows:

 

ARTICLE I

PROGRAMMING SERVICES

 

1.1            Engagement and Services.  Developer hereby engages Programmer, and Programmer accepts such engagement, subject to the terms and  c [Portions Omitted - included In fully Licensed Version]herein, to perform for Developer the services described in Attachment "I" (the "Services").

 

1.2            Scope of Work.  The parties intend that this Agreement shall act as a “master” agreement and that the terms hereof shall govern all services that are performed by the Programmer for the Developer, unless of course [Portions Omitted - included In fully Licensed Version]this Agreement shall not apply in a separate written agreement signed by authorized representative of both parties.  The precise activities to be performed in each assigned task shall [Portions Omitted - included In fully Licensed Version] “work orders” that shall be signed by both parties.  Unless the work orders specify otherwise, the work orders shall be subject to the terms and conditions of this Agreement.  Each work order shall be successively numbered.  Each [Portions Omitted - included In fully Licensed Version]set forth a description and specifications of the work to be performed and the compensation to be paid to the Programmer for such services.

 

1.3            Deliverables; Specifications.  Programmer shall use its best efforts to meet any delivery dates for Deliverables set forth in the work order(s), and to deliver Deliverables to Developer that conforms to [Portions Omitted - included In fully Licensed Version] set forth in such Attachment(s). Programmer warrants that the Services will he performed promptly, diligently and in accordance with all  reasonable professional standards for similar services, by the [Portions Omitted - included In fully Licensed Version] Agreement.  Deliverables shall include all computer programming code (in both object and source code form), scripts, all documentation and other written material relative thereto, and all other materials, items, media called for by the specifications or any work order.

 

1.4            Programmer shall use reasonable diligence to promptly perform the services described herein and to meet [Portions Omitted - included In fully Licensed Version] that are in compliance with agreed specifications and project parameters. All services shall be provided in a professional and workmanlike manner and in compliance with standard industry standards and by qualified and experienced personnel secured by the Programmer.

 

1.5            Programmer shall continually communicate with the Developer regarding progress made by the Programmer in perfor [Portions Omitted - included In fully Licensed Version]rvices. Upon request from the Developer, Programmer shall prepare and deliver to the Developer written reports summarizing progress in providing the services called for in this Agreement.

 

1.6            Programmer represents and warrants that it has no current commitments or obligations that will conflict [Portions Omitted - included In fully Licensed Version] with or impede the performance of the services called for under this Agreement.

 

1.7            Programmer agrees that Programmer shall be prohibited from direct contact with any Client without the advanced written [Portions Omitted - included In fully Licensed Version] the intent and desire of the parties that the Developer act as the sole liason with the Client.

 

ARTICLE II

Compensation

 

2.1            Payment of Compensation.  Compensation relative to each work order shall be set forth in the relevant work order.  The work [Portions Omitted - included In fully Licensed Version]include a payment schedule.

 

2.2            Expenses.  Developer shall not be responsible for any expenses in addition to the compensation set forth in any work order unless specifically agreed in such work order.

 

ARTICLE III

OWNERSHIP AND USE OF PROPRIETARY PROPERTY

 

3.1            Programmer expressly acknowledges and agrees that any and all proprietary materials created by Programmer in the scope of providing service hereunder shall be created as “works made for hire” as define [Portions Omitted - included In fully Licensed Version] of all copyrights and other proprietary rights in and to such items and shall be considered to be the sole and exclusive author of such materials within the meaning of the United States Copyright Act. These items shal [Portions Omitted - included In fully Licensed Version] the Programmer’s services or contemplated by this Agreement, all tangible results and proceeds of the Programmer’s services, work in progress, records, diagrams, notes, drawings, specifications, schematics, documents [Portions Omitted - included In fully Licensed Version]s, customer lists, databases, software, programs, middleware, applications, solutions, (collectively referred to as "Proprietary Products") conc [Portions Omitted - included In fully Licensed Version]period of this Agreement which relate in any manner to the service provided by the Programmer to the customer.

 

3.2            Furthermore, Programmer agrees to execute any and all documents and take all other actions necessary to vest full rights [Portions Omitted - included In fully Licensed Version]terials and the copyrights, patents, or other proprietary rights therefore in the Developer, including but not limited to executing confirmations of the work for hire status of the Programmer, executing [Portions Omitted - included In fully Licensed Version] and fully assigning all copyrights to the Developer. Programmer hereby waives any other rights in and to such Proprietary Products that may attach or arise under any federal, state, local, international laws or [Portions Omitted - included In fully Licensed Version] other country or jurisdiction, including but not limited to so-called "moral rights."

 

3.3            In the event that Programmer intends or plans to integrate any work that was previously created by the Program [Portions Omitted - included In fully Licensed Version]der, the Programmer shall first provide written notice to the Developer and seek Developers written approval of the incorporation of such items. In the event that Developer consents, in its reasonable discretion, to th [Portions Omitted - included In fully Licensed Version]ms into the work product to be created for the Developer, the Developer is hereby granted a worldwide, royalty free, perpetual, irrevocable license to use, distribute,, modify, publish, and otherwise exploit the [Portions Omitted - included In fully Licensed Version] with the work product that is developed for the Developer.

 

3.4            Programmer shall be the original author of all Deliverables and shall not provide any Deliverables or any portion of any Deliverable that infringes upon the intellectual property r [Portions Omitted - included In fully Licensed Version]atent, trademark, moral rights, privacy rights, trade secrets, or any other right) of any other party.  Programmer hereby indemnifies and holds Dev [Portions Omitted - included In fully Licensed Version]Clients harmless from and against any alleged, threatened or actual infringement asserted by any third party, which indemnification shall include ongoing payment of costs and attorney fees of defending or otherwise addressing [Portions Omitted - included In fully Licensed Version]ed infringement related to Programmer’s Deliverables.

 

3.5            Programmer represents and warrants that it shall be the sole and exclusive author of all Deliverables and [Portions Omitted - included In fully Licensed Version]have any rights or claims thereto.  Programmer shall not subcontract any work provided hereunder to any independent contractor.  All work must be performed by the Programmer and its bona fide employees.

 

3.6            Programmer shall promptly fix any and all “bugs” or other defects in the Deliverables upon notice thereof [Portions Omitted - included In fully Licensed Version]per.  This obligation shall survive the termination of this Agreement and the delivery and acceptance of any Deliverables.

 

 

ARTICLE IV

CONFIDENTIAL INFORMATION

 

4.1            Programmer will not, during or subsequent to the term of this Agreement, use Developer's or any Client’s Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of Developer or disclose Developer's Confidential Information to any third party, [Portions Omitted - included In fully Licensed Version] written authorization of the Developer and/or the relevant Client. Programmer further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not [Portions Omitted - included In fully Licensed Version]ccess to such information to individuals within its organization that have a bona fide need to know of such information, having e [Portions Omitted - included In fully Licensed Version]access to any Confidential Information execute a nondisclosure agreement containing provisions and restrictions substantially similar to those contained in this Agreement.

 

4.2            Programmer will indemnify Developer and any Client and hold them harmless from and against all claims, liabilities, dama [Portions Omitted - included In fully Licensed Version]xpenses, including reasonable attorneys fees and costs of suit, arising out of or in connection with, any violation or claimed violation of a third party's rights resulting in whole or in part from Developer's or any [Portions Omitted - included In fully Licensed Version]e of the work product of Programmer under this Agreement.

 

4.3            Programmer shall not be permitted to make any press releases or disclose to any other party, in [Portions Omitted - included In fully Licensed Version] or any other means of communication, the existence of the relationship between Developer and Programmer or the existence or any terms of conditions of this Agreement or that work is being performed relative to any Client.

 

4.4            For purposes of this Agreement, the term "Confidential Information" means and includes, any and all proprietary information of any nature or kind, technical data, trade secrets or know-how, i [Portions Omitted - included In fully Licensed Version]earch, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas. technology, designs, drawings, engineering, hardware configuration information, marketing, [Portions Omitted - included In fully Licensed Version]tly in writing or orally. Confidential Information does not include information which (i) is known to Programmer at the time of disclosure to Programmer by Developer or any Client as evidenced by written records of Programmer, (ii) has [Portions Omitted - included In fully Licensed Version]icly known and made generally available through no wrongful act of Programmer or (iii) has been rightfully received by Programmer [Portions Omitted - included In fully Licensed Version] is authorized to make such disclosure.

 

4.5            Upon the termination or expiration of this Agreement, or upon Developer's earlier request, Programmer will deliver to [Portions Omitted - included In fully Licensed Version] or Confidential Information in tangible form that Programmer may have in Programmer's possession or control.

 

4.6            Programmer agrees that it would be impossible ascertain Developer's or any Client’s damages from any breach of the covenants set forth in this Article IV. As such, Programmer agrees that if [Portions Omitted - included In fully Licensed Version] of this Article IV, Developer or any relevant Client may chose, in addition to any other right or remedy available, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach. Programmer further agrees that no bond or other security shall be re [Portions Omitted - included In fully Licensed Version]uch equitable relief and Programmer hereby consents to the issuances of such injunction and to the ordering of such specific performance.

 

 

ARTICLE V

TERM AND TERMINATION

 

5.1            This Agreement shall commence on the effective date hereof and shall remain in effect until the earlier of the [Portions Omitted - included In fully Licensed Version]s called for hereunder to be performed by the Consultant, or the earlier termination of this Agreement as provided in this Article V.

 

5.2            This Agreement may be terminated by the customer, with or without cause, by giving ten (10) business days written notice of such termination to the Consultant.

 

5.3            Customer may terminate this Agreement immediately upon written notice to the Consultant in the event t [Portions Omitted - included In fully Licensed Version] or defaults under any of Consultant’s obligations contained in this Agreement or if the Consultant is unable to or refuses to perform services hereunder.

 

5.4            Upon the effective date of any termination of this Agreement, all legal obligation, rights and duties arising out of this Agreement shall terminate except that: (i) Customer shall remain obligated to pay any balance due to the Consultant for services provided hereunder: (ii) t [Portions Omitted - included In fully Licensed Version]etary Rights Provisions, and Independent Contractor provisions of this Agreement shall continue to apply and shall survive the termination of this Agreement as ongoing covenants between the parties; (iii) Consultan [Portions Omitted - included In fully Licensed Version]tion to return to the Customer all tangible and intangible property of the customer and all versions of any Proprietary Products of the customer or developed for the Customer during the effectiveness of this Agreement; and (iv) Cons [Portions Omitted - included In fully Licensed Version]oing duty and obligation to confirm in writing and take all reasonable steps to secure proprietary right in the Proprietary P [Portions Omitted - included In fully Licensed Version] to this Agreement in the name and exclusive ownership of the Customer.

 

ARTICLE VI

MISCELLANEOUS PROVISIONS

 

6.1          Notices. Any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall deemed to be delivered if transmitted v [Portions Omitted - included In fully Licensed Version]isted below, except for any notice of termination of this Agreement which shall be in writing and sent by United States Mail, Certified Mail, Return Receipt Requested and shall be deemed to have been delivered five (5) business days after [Portions Omitted - included In fully Licensed Version]

 

 

If To Consultant: _____________________________________________

 

If To Customer: ______________________________________________

 

6.2          No Assignment. The Services to be performed by Consultant hereunder are personal in nature, and Customer has engaged Consultant as a result of Consultant's unique expertise relating to such Services. Neither [Portions Omitted - included In fully Licensed Version]ransferred or delegated by Consultant without the express written consent of Customer which consent may be withheld in the discretion of the Customer.

 

6.3          Independent Contractor Status. The parties agree that Consultant shall be an independent contractor and not an agent, employee or representative of Customer. Customer shall have no right to direct or cont [Portions Omitted - included In fully Licensed Version]or other perquisites that the Customer may provide to its employees and Consultant agrees to be responsible for its own business overhead and costs of doing business and to furnish (or reimburse Customer for) all tools and materials necessary to accomplish the services required of the Consultant pursuant [Portions Omitted - included In fully Licensed Version]xpressly provided in Exhibits or amendments to this Agreement. Consultant shall be responsible for paying all taxes on payments received pursuant to this Agreement and that Customer shall have no obligation to withhold taxes from service fees payable to the Consultant hereunder. Consultant hereby indemnifies and [Portions Omitted - included In fully Licensed Version] harmless any obligation that may be imposed on Customer (i) to pay in withholding taxes or similar items or (ii) resulting from Consultant's being determined not to be an independent contractor.

 

6.4          Arbitration. Except as specifically provided in this Agreement, the parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity [Portions Omitted - included In fully Licensed Version] to be held in _____________ in accordance with the rules of the American Arbitration Association (the "Rules"). The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The parties [Portions Omitted - included In fully Licensed Version] their own attorney fees with respect to such Arbitration but shall share equally the other costs and expenses of arbitration.

 

6.5          In interpreting the terms of this Agreement, the parties agree that the laws of the State of ___________ shall be applicable. All suits permitted to be brought in any court shall be venued in __________ County, State of ____________.

 

6.6          This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supercedes and replaces all prior discussions, agreements, proposals, understandings, whether orally or in writing, between the parties related to the subject [Portions Omitted - included In fully Licensed Version]itten agreement that is duly executed by authorized representatives of the parties. If any provisions hereof is deemed to be ille [Portions Omitted - included In fully Licensed Version]tiveness of the remainder of the Agreement shall not be effected and this Agreement shall be enforceable without reference to the unenforceable provision. No party’s waiver of any breach or accommodation to the other party shall be deemed to be a waiver of any subsequent breach.

 

IN WITNESS WHEREOF, the parties hereto have duly entered and executed this Agreement as of the day and year first above written and represent and warrant that the party executing this Agreement on their behalf is duly authorized.