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 WEBFX DESIGNS, INC., a New York 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 components to be 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 conditions contained herein, to perform for Developer the services described in Attachment "I" (the "Services"). 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 the parties specifically agree that 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 be included in separate “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 work order shall set forth a description and specifications of the work to be performed and the compensation to be paid to the Programmer for such services. 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 any project specifications 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 individual executing this Agreement. Deliverables shall include all computer programming code (in both object and source code form), scripts, all documentation and other written
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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 any delivery dates or project deadlines agreed to by the parties and to provide services 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. Programmer shall continually communicate with the Developer regarding progress made by the Programmer in performing the services. 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. Programmer represents and warrants that it has no current commitments or obligations that will conflict with or otherwise interfere with or impede the performance of the services called for under this Agreement. Programmer agrees that Programmer shall be prohibited from direct contact with any Client without the advanced written consent of the Developer, it being 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 order shall also include a payment schedule. 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 defined in the United States Copyright Act and that Developer shall be the true and lawful owner 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 shall include, but shall not necessarily be limited to any and all deliverables resulting from 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, designs, improvements, inventions, discoveries, developments, trademarks, trade secrets, customer lists, databases, software, programs, middleware, applications, solutions, (collectively referred to as "Proprietary Products") conceived, made or discovered by Programmer, solely or in collaboration with others, during the period of this Agreement which relate in any manner to the service provided by the Programmer to the customer.
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Furthermore, Programmer agrees to execute any and all documents and take all other actions necessary to vest full rights and ownership of such materials 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 copyright assignments irrevocably 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 the laws of any other country or jurisdiction, including but not limited to so-called "moral rights." In the event that Programmer intends or plans to integrate any work that was previously created by the Programmer into any work product to be created in furtherance of the performance of services hereunder, 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 the incorporation of such items 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 incorporated items in connection with the work product that is developed for the Developer. 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 rights (copyright, patent, trademark, moral rights, privacy rights, trade secrets, or any other right) of any other party. Programmer hereby indemnifies and holds Developer and 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 any such claimed infringement related to Programmer’s Deliverables. Programmer represents and warrants that it shall be the sole and exclusive author of all Deliverables and that no other party shall 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. Programmer shall promptly fix any and all “bugs” or other defects in the Deliverables upon notice thereof from the Developer. This obligation shall survive the termination of this Agreement and the delivery and acceptance of any Deliverables. ARTICLE IV CONFIDENTIAL INFORMATION
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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, without the advanced 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 limited to, limiting access to such information to individuals within its organization that have a bona fide need to know of such information, having each employee of Programmer, if any, with 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, damages and expenses, 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 Client’s use of the work product of Programmer under this Agreement. Programmer shall not be permitted to make any press releases or disclose to any other party, in any marketing or advertising material 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. 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, 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 Developer either directly or indirectly 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 become publicly known and made generally available through no wrongful act of Programmer or (iii) has been rightfully received by Programmer from a third party who is authorized to make such disclosure. Upon the termination or expiration of this Agreement, or upon Developer's earlier request, Programmer will deliver to Developer all of Developer's property or Confidential Information in tangible form that Programmer may have in Programmer's possession or control. 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 Programmer breaches any provision 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 required in obtaining such 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 completion of all services called for hereunder to be performed by the Consultant, or the earlier termination of this Agreement as provided in this Article V.
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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. Customer may terminate this Agreement immediately upon written notice to the Consultant in the event that the Consultant substantially breaches 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. 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) the Confidentiality Restrictions, Ownership of Proprietary 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) Consultant shall have the continuing obligation 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) Consultant shall have the ongoing duty and obligation to confirm in writing and take all reasonable steps to secure proprietary right in the Proprietary Products developed pursuant to this Agreement in the name and exclusive ownership of the Customer. ARTICLE VI MISCELLANEOUS PROVISIONS
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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 via Email at the Email addresses listed 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 the date of mailing. Addresses and Email addresses for such notices shall be: If To Consultant: _____________________________________________ If To Customer: ______________________________________________
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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 this Agreement nor any right, interest, duty or obligation hereunder may be assigned, transferred or delegated by Consultant without the express written consent of Customer which consent may be withheld in the discretion of the Customer. 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 control the details of the Consultant’s work. Consultant shall not receive any fringe benefits 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 to
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this Agreement, and shall incur all expenses associated with performance, except as expressly 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 holds the customer 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, construction, performance, breach or termination of this Agreement shall be submitted to binding arbitration 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 shall each bear their own attorney fees with respect to such Arbitration but shall share equally the other costs and expenses of arbitration. 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 ____________. 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 matter of this Agreement. This Agreement may be changed, modified or amended only in a written agreement that is duly executed by authorized representatives of the parties. If any provisions hereof is deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability of effectiveness 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.
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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.