Washington, D.C. Location
THIS AGREEMENT is made as of this [Date] by and between [Computer Software Consultant’s Name] a [Computer Software Consultant’s State of Incorporation] corporation with offices at [Computer Software Consultant’s Address] (“Computer Software Consultant”) and Software Patent Co. [Employer], a [Employer’s State of Incorporation] corporation with offices at [Employer’s Address] (“Software Patent Co.”) (collectively the “Parties”).
W I T N E S S E T H:
WHEREAS, Computer Software Consultant possesses certain technical expertise in the field of computer programming and, in particular, the creation and development of Internet-related software (the “Field”);
WHEREAS, Software Patent Co. desires to engage Computer Software Consultant to perform certain professional consulting services as hereinafter defined in the Field; and
WHEREAS, Computer Software Consultant is willing and able to provide such consulting services to Software Patent Co. in the Field.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows:
1. RETENTION OF COMPUTER SOFTWARE CONSULTANT
A. Software Patent Co. hereby retains the services of Computer Software Consultant to provide professional consulting services to Software Patent Co. in the Field during the Term of this Agreement. In this regard, Computer Software Consultant shall advise and assist Software Patent Co. in the creation and development of new products in the Field including, but not limited to, the development of a World Wide Web Site(the “Web Site”).
B. Computer Software Consultant is an independent contractor and not an employee of Software Patent Co.. Unless otherwise expressly agreed to in writing, Computer Software Consultant shall not be entitled to or eligible for any benefits or programs otherwise given by Software Patent Co. to its employees.
C. Computer Software Consultant agrees to use the services of [name of lead Computer Software Consultant] (the “Lead Computer Software Consultant”) on a full-time basis on this project. It is understood and agreed that the Lead Computer Software Consultant will devote substantially all of his time and effort to the development of the Web Site.
2. TERM OF THE AGREEMENT
A. The consulting period shall extend from [starting date] through and including [ending date] (the “Term”) unless sooner terminated as provided herein.
B. Software Patent Co. shall have the option of renewing the subject Agreement for an additional [number] ([#]) month period (the “Extended Term”) on the same terms and conditions as provided for herein by providing Computer Software Consultant written notice of its intention to renew this Agreement at least [number] ([#]) days prior to the expiration of the Term.
3. OBLIGATIONS OF COMPUTER SOFTWARE CONSULTANT
A. Utilizing its own facilities and equipment, Computer Software Consultant shall be responsible for the creation and development of the Web Site in accordance with a time schedule to be mutually agreed to between the parties. It is, however, anticipated that Lead Computer Software Consultant will devote at least [number] ([#]) hours per week during the Term to the professional services required hereunder. Upon agreement from time to time between Software Patent Co. and Computer Software Consultant, Lead Computer Software Consultant’s hours may be varied to suit the mutual convenience of Lead Computer Software Consultant and Software Patent Co..
B. Lead Computer Software Consultant shall regularly meet with and advise Software Patent Co. on technical matters in the Field as well as regularly suggest solutions to technical problems in connection with Software Patent Co.’s programs as they may develop.
A. In full consideration for the services being rendered by Computer Software Consultant hereunder, Software Patent Co. agrees to pay Computer Software Consultant during the Term of this Agreement a consulting fee in the amount of [amount] UNITED STATES DOLLARS ($[amount]) per month (the “Consulting Fee”). The Consulting Fee shall be paid on a monthly basis within [number] ([#]) days after the conclusion of each month.
B. Computer Software Consultant shall be responsible for all ordinary and reasonable expenses which it may incur in connection with this project. Software Patent Co. agrees, however, to reimburse Computer Software Consultant for all reasonable and necessary travel and material expenses previously approved in writing by Software Patent Co..
C. In the event that Computer Software Consultant completes its work on the Web Site to the sole and complete satisfaction of Software Patent Co. and provides Software Patent Co. with a fully operation prototype thereof on or before [date], Software Patent Co. agrees to pay Computer Software Consultant a bonus in the amount of [amount] UNITED STATES DOLLARS ($[amount]) (the “Bonus”) which shall be due and payable within [number] ([#]) days after submission of and acceptance by Software Patent Co. of the final prototype and documentation for the Web Site. The Bonus shall be separate from and in addition to the Consulting Fee. In the event that Computer Software Consultant fails to complete its work to the complete satisfaction of Software Patent Co. by the aforementioned date, Computer Software Consultant hereby forfeits any entitlement to this Bonus.
5. CONFIDENTIAL INFORMATION
A. “Confidential Information” shall mean any confidential technical data, trade secret, know-how or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as “Confidential” or ”Proprietary.” If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced in writing and delivered to the receiving party within [number] ([#]) days of such disclosure.
B. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or become publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiary; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. The receiving party agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of the disclosing party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of [number] ([#]) years thereafter, without the prior written consent of the disclosing party. The receiving party further agrees that Confidential Information shall remain the sole property of the disclosing party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. No license shall be granted by the disclosing party to the receiving party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon the request of the disclosing party, the receiving party will promptly return all Confidential information furnished hereunder and all copies thereof.
E. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party.
F. If a party breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential information hereunder, the non-breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
A. Computer Software Consultant shall not during the Term of this Agreement render any services, directly or indirectly, to any entity engaged in the creation, design, development and/or marketing of World Wide Web sites or Internet-related software. Computer Software Consultant shall not, for a period of [number] ([#]) year(s) after the termination or expiration of this Agreement, render any services, directly or indirectly, to any entity engaged in the creation, design, development and/or marketing of World Wide Web sites utilizing technology of the type licensed to Software Patent Co. for the Web Site.
B. Computer Software Consultant shall not originate any publicity, news release, or other public announcement, written or oral, relating to this Agreement, to any amendment hereto or to performance hereunder, without the prior written approval of Software Patent Co..
A. Any inventions, improvements, concepts, or ideas made or conceived by Computer Software Consultant in connection with and during the performance of services hereunder and related to the business of Software Patent Co. and for [number] ([#]) months thereafter, shall be considered the sole and exclusive property of Software Patent Co.. As part of the services to be performed hereunder, Lead Computer Software Consultant shall keep written notebook records of his work, properly witnessed for use as invention records, and shall submit such records to Software Patent Co. when requested or at the termination of Computer Software Consultant’s services hereunder. Computer Software Consultant shall not reproduce any portion of such notebook records without the prior express written consent of Software Patent Co.. Computer Software Consultant shall promptly and fully report all such inventions to Software Patent Co..
B. Any work performed by the Lead Computer Software Consultant under this Agreement shall be considered a Work Made for Hire as that phrase is defined by the United States Copyright laws and shall be owned by and for the express benefit of Software Patent Co.. In the event it should be established that such work does not qualify as a Work Made for Hire, Computer Software Consultant and Lead Computer Software Consultant agree to and do hereby assign to Software Patent Co. all of its right, title and interest in such work product including, but not limited to, all copyrights, patents, trademarks and other proprietary rights.
C. Both during the Term of this Agreement and thereafter, Computer Software Consultant shall fully cooperate with Software Patent Co. in the protection and enforcement of any intellectual property rights that may derive as a result of the services performed by Computer Software Consultant under the terms of this Agreement. This shall include executing, acknowledging and delivering to Software Patent Co. all documents or papers which may be necessary to enable Software Patent Co. to publish or protect said inventions, improvements, and ideas.
A. Either party may terminate this Agreement on [number] ([#]) days written notice to the other party in the event of a breach of any material provision of this Agreement by the other party, provided that, during the [number] ([#]) day period, the breaching party fails to cure such breach or, should the breach not be curable within said [number] ([#]) day period, the breaching party has not initiated steps to cure such breach.
B. Either party shall have the right to terminate this Agreement for any reason and at any time on [number] ([#]) days written notice to the other party, such termination to become effective at the conclusion of such [number] ([#]) day period.
C. In the event of a termination or expiration of this Agreement, all covenants and obligations of the parties shall expressly survive termination.
D. Software Patent Co. shall have the right to immediately terminate this Agreement in the event of disability or death to the Lead Computer Software Consultant or in the event that the Lead Computer Software Consultant should no longer be employed by Computer Software Consultant.
9. RELATIONSHIP OF PARTIES
Nothing in the Agreement shall be deemed to constitute, create, give effect to or otherwise recognize a partnership, joint venture or formal business entity of any kind; and the rights and obligations of the Parties shall be limited to those expressly set forth herein.
10. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
11. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified, registered or Express mail, return receipt requested or by Federal Express.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
This Agreement shall be governed in accordance with the laws of the State of [State]. All disputes under this Agreement shall be resolved by litigation in the courts of the State of [State] including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
13. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
This Agreement and the rights and obligations thereunder are personal with respect to Computer Software Consultant and may not be assigned by any act without the prior written consent of Software Patent Co.. Software Patent Co. shall, however, have the absolute, unfettered right to assign this Agreement to a successor in interest to Software Patent Co. or to the purchaser of any of the assets of Software Patent Co..
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.
[Employer] [Computer Software Consultant]