AGREEMENT FOR INDEPENDENT CONTRACTOR This AGREEMENT is dated as of December ___, 2008 by and between HITECH Company Inc., a Delaware corporation (the “Company”) with an office at _________________________ and John Doe of __________________________(“Consultant”). BACKGROUND The Company requires the services of Consultant with respect to the tasks specified herein, and Consultant has expertise in the area of services required by the Company and is willing to provide such services. In consideration of the mutual promises more particularly set forth below, the above parties have entered into this Agreement as follows: TERMS AND CONDITIONS 1. Statement of Work: Consultant agrees to perform the services listed in Exhibit A hereto, as such may be amended from time to time by the parties in accordance with the terms set forth herein. Consultant will furnish to the Company written work plans and progress reports, as requested by the Company, in such form and number as required by the Company, and shall make such final reports as the Company may require. 2. Payment: In consideration of the services performed by Consultant, the Company agrees to pay Consultant in accordance with the payment schedule listed in Exhibit B hereto, as such may be amended from time to time by the parties in accordance with the terms set forth herein. No other amounts shall be payable by the Company to Consultant. Consultant shall be responsible for the maintenance of complete records on all time and charges submitted for billing in accordance with Exhibit B. Such records shall be made available to the Company's representatives upon its request. 3. Consultant Independent: Consultant's primary obligation hereunder is to complete the services described above in Paragraph 1 and to meet any deadlines set forth therein. Consultant has no obligation to work any particular hours or days or any particular number of hours or days. While Consultant shall adhere to specifications and standards supplied by the Company, the Company agrees that it will have no right to control or direct the details, manner or means by which Consultant accomplishes the results of the services performed hereunder. Nothing herein shall constitute a current or future offer of employment nor does the entering into this Agreement by the Company or the Consultant a precursor to any future business relationship of any kind express or implied. 4. Representations of Consultant: (a) Consultant warrants to the Company that the necessary licenses and bonds have been secured by Consultant for performance of the services covered by this Agreement. Consultant further warrants that the services performed hereunder will be performed in a manner in accord with any statutes, regulations, ordinances or contracts applicable to the services covered hereunder, and will be performed in a manner in accord with ordinary business custom and usage.
(b) Consultant warrants that neither the performance of its duties under this Agreement, nor any deliverable or the use thereof, will infringe any patent, copyright, trade secret or other proprietary right of any third party. Consultant warrants that no deliverable shall contain any material owned by any third party, except as disclosed to the Company in writing prior to Consultant's incorporating such material into any deliverable, and that as to any such material, Consultant shall have all rights necessary to provide to the Company the full, unrestricted benefits to such material as incorporated into the deliverable, including without limitation the right to use, market, distribute and copy, and to provide such rights to others. (c) Consultant warrants that all computer software or electronic data delivered hereunder, and the media on which any copy is so delivered, shall not contain any code which will destroy or alter data or program code or interfere with the operation of the computer on which the software is used, or any other computer with which such computer exchanges data or storage media, except to the extent such actions are described in written documentation furnished with the deliverables so as to be under the knowing control of the user of the software. 5. Assignment and Subcontracting: This Agreement may not be assigned or transferred by Consultant to any other party, nor may any work be subcontracted, without the prior written consent of the Company. 6. Consultant Responsibility for Any Personnel: All personnel supplied or used by Consultant shall be deemed employees or subcontractors of Consultant and will not be considered employees, agents or subcontractors of the Company for any purpose whatsoever. Consultant assumes full responsibility for the actions of all such personnel while performing services under this Agreement and for the payment of their compensation (including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes), workers' compensation, disability benefits and the like to the extent applicable to the personnel involved. Notwithstanding and without in any way limiting any terms and conditions set forth in this Agreement, all subcontractors of Consultant shall be deemed to have made all of the representations and warranties of Consultant set forth herein and shall be subject to any obligations of Consultant hereunder, and, if requested by the Company, Consultant shall obtain from each subcontractor its written consent to and acknowledgment of the terms of this Agreement. Consultant shall be responsible for any breach by any subcontractor of any representations, warranties or obligations set forth in this Agreement. 7. Indemnification: Consultant agrees to indemnify and save the Company harmless from any liabilities, claims or demands (including the costs, expenses, and attorneys' fees on account thereof) that may be made: First, by anyone for injuries to persons or damage to property, including theft, resulting from Consultant's acts or omissions or those of persons furnished by Consultant; or second, by persons furnished by Consultant or by any subcontractors used by Consultant for injuries or damages claimed under workers' compensation or similar acts. Consultant shall defend the Company against any such liability, claim or demand should the Company so request. The Company agrees to notify Consultant of any written claims or demands made against the Company for which Consultant is liable hereunder. 8. Insurance: While this Agreement is in effect, and to the extent applicable to any personnel furnished by Consultant, Consultant shall if it engages any employee, maintain workers'
compensation insurance as prescribed by the law of the state in which the work is performed, and employer's liability insurance with limits of at least One Hundred Thousand Dollars ($100,000) each occurrence. Consultant shall also maintain comprehensive general liability insurance and, if the use of automobiles is required, comprehensive general liability insurance and comprehensive automobile liability insurance having limits of at least Three Hundred Thousand Dollars ($300,000) for bodily injury, including death, to any one person, One Million Dollars ($1,000,000) on account of any one occurrence, and One Hundred Thousand Dollars ($100,000) for each occurrence of property damage. Upon request, Consultant shall furnish the Company with certificates of insurance evidencing such coverage. 9. Rights in Work Product: All documentation, data, business plans, strategic plans, any inventions and ideas, written material or other property, tangible or intangible, arising out of or resulting from the performance of this Agreement, whether developed by Consultant, Consultant's employees, subcontractors or otherwise, and all proprietary rights thereto, including copyright rights therein, (the “Work Product”) shall belong to the Company immediately upon development. As to copyrights, Consultant agrees that all deliverables shall be deemed a “work made for hire” and that the Company shall be deemed the author thereof for copyright purposes; provided, however, that if any deliverable is at any time determined to not be a work made for hire, this Agreement shall be deemed an irrevocable assignment of the copyright to the entire Work Product. Consultant shall at the request of the Company execute all documents as are required to vest such ownership in the Company. Consultant will acquire from its employees and any permitted subcontractors who may be engaged in the performance of services under this Agreement all such rights as may be necessary so that the Company will receive the rights hereby agreed to be conveyed and vested in it, free of any claims of such employees or subcontractors. Consultant irrevocably appoints the Company as Consultant's attorney-in-fact to execute all such documents as are required by this Paragraph 9. Consultant shall treat all Work Product as Confidential Information of the Company under Paragraph 10 below, and shall impose the requirements of this Paragraph on any permitted subcontractor. 10. Confidential Information: Any specifications, drawings, sketches, models, samples, financial data, computer programs or documentation, algorithms, program code or other technical or business information, (hereinafter referred to as “Confidential Information”) furnished or disclosed to Consultant hereunder shall be deemed the property of and, when in tangible form, shall be returned to the Company. Unless such Confidential Information was previously known to Consultant free of any obligation to keep it confidential, or has been or is subsequently made public by the Company or a third party which had the right to do so, it shall be held in confidence by Consultant, shall be used only for the purposes of performing Consultant's services hereunder, and may be used for other purposes only upon such terms and conditions as may be mutually agreed upon in writing. 11. Third Party Software: The Company may provide Consultant with the use of software, utilities, and related items, of third parties. Consultant will adhere to the terms of any applicable license agreement covering such items, and at the end of Consultant's performance hereunder or at the Company's earlier direction, shall return all copies of such items furnished to it by the Company and keep no copies.
12. Disclosure: Promptly upon expiration or termination of this Agreement, Consultant shall make complete disclosure to the Company of all discoveries and inventions or other information within the scope of Paragraphs 9 and 10, which discoveries, inventions or other information have not been previously disclosed to the Company. In addition, Consultant shall certify in writing that such disclosures are complete. 13. Intellectual Property: All rights and licenses granted to the Company hereunder shall, except as otherwise specifically set forth herein, be free and clear of any claim of rights (including moral rights such as any rights of identification of authorship, rights of approval on modifications, or limitation on subsequent modifications) by any person or entity. Consultant will defend at its expense any action brought against the Company that is based on any infringement, or claim of infringement, of any patent, trademark, copyright, trade secret or other intellectual property right arising from or relating to the Company's (or its representatives', manufacturers', resellers', distributors' or end-users') use, installation, sale, licensing, marketing or distribution of any materials, equipment, programs or services furnished by Consultant or its subcontractors to the Company hereunder, and Consultant will reimburse the Company for attorneys' fees reasonably incurred in connection therewith. The Company shall notify Consultant promptly of any claim of infringement for which Consultant is responsible. 14. Use of Name: Consultant shall not advertise, market or otherwise make known to others any information relating to the services performed under this Agreement, including mentioning or implying the name of the Company, or any of its personnel, without prior written consent of the Company. 15. Relations with Company’s Customers and Noncompetition: Consultant acknowledges that by performing services for the Company under this Agreement, Consultant shall become privy to the Company's methods of doing business, the identity of many of its customers and potential customers, and other confidential information of the Company. Therefore, during the period that Consultant performs services hereunder and for two (2) years thereafter, absent the Company's prior written approval, Consultant shall not provide services, either as a consultant, employee or otherwise for or on behalf of any business organization (i) engaged in direct or indirect competition with the Company, or (ii) which, at any time during Consultant's business relationship with the Company, was a customer or a prospective customer of the Company, nor shall Consultant engage in such activities on its own behalf. Consultant certifies that it has neither developed products, nor has had access to confidential information relating to the development of products for any individual or entity engaged in direct competition with the Company. 16. Representations and Warranties of Consultant as to Services
Consultant warrants that all Services will be performed consistent with generally accepted industry standards for similar services. Consultant shall not be liable for any foreseeable delays resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any new law, order or requirement of any governmental agency or authority. (b) Limitation on Warranty
Company must report any deficiencies in the Services to Consultant in writing within one year of completion of the Services in order to receive warranty remedies. The warranty herein is exclusive and in lieu of all other warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose. (c) Exclusive Remedy For any breach of the above warranty, Company’s exclusive remedy, and Consultant’s entire liability, shall be the reperformance of the Services. If Consultant is unable to reperform the Services as warranted, Company shall be entitled to recover the all fees paid to Consultant for the applicable Work Order or invoice. 17. Conflict of Interest: Consultant is not, and during the term of this Agreement shall not become, a party to any agreement or subject to any obligation which would impede or prohibit its proper execution and observance of this Agreement. 18. Termination: The Company retains the right to terminate this Agreement at any time should Consultant fail to demonstrate the ability, financial or otherwise, to fulfill the objectives of this Agreement, or should Consultant violate any of the provisions hereof. Following such termination, the Company shall not be liable for any further payments hereunder or otherwise; and, if damages are caused to the Company as a result of Consultant's inability to perform or violation of the provisions of this Agreement, Consultant shall be liable for such damages, including consequential and incidental damages, plus costs and attorney's fees. 19. General: (a) The failure of either party hereto to enforce any right under this Agreement shall not be construed to be a waiver of that right, or of damages caused thereby, or of any other rights under this Agreement. (b) All notices shall be in writing and given by personal delivery, certified mail, return receipt requested, or by commercial overnight courier for next business day delivery, to the recipient's address set forth above. Notice shall be deemed given the date of personal delivery, the fifth business day after mailing, or the next business day after delivery to such courier (unless the return receipt or the courier's records evidence a later delivery). (c) This Agreement constitutes the entire agreement between the parties with respect to its subject matter; except as provided herein, all other prior agreements, representations, statements, negotiations and undertakings with respect to such subject matter are terminated and superseded hereby. (d) After expiration or termination of this Agreement, all provisions regarding indemnification, warranty, liability and limits thereon, and confidentiality and/or protection of proprietary rights and trade secrets shall survive indefinitely or until the expiration of any time period specified elsewhere in this Agreement with respect to the provision in question. (e) No amendment to this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each party. The term “Agreement”, as used herein, includes any future written amendments, modifications, or supplements made in accordance herewith. (f) In the event any provision of this Agreement is held illegal, void or unenforceable, to any extent, in whole or in part, as to any situation or person, the balance shall remain in effect and the provision in question shall remain in effect as to all other persons or situations, as the case may be. (g) This Agreement shall bind and inure to the benefit of the Company and any successor of the Company by reorganization, merger, consolidation or liquidation and any assignee of all or substantially all of its business or assets, but otherwise this Agreement may not be assigned by the Company or Consultant. (h) The construction, interpretation
and performance of this Agreement, and the transactions under it, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of laws and choice of law rules, and jurisdiction over any action to enforce this Agreement, or any dispute arising from or relating to this Agreement shall subsist solely in the state and/or federal courts located within the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first written above.
HITECH Company, Inc. By:__________________________ Name:_______________________ Title:________________________
John Doe By:____________________________ Name:__________________________
EXHIBIT A DESCRIPTION OF SERVICES
EXHIBIT B PAYMENT SCHEDULE
1. Fees. 2. Invoicing. Consultant agrees to invoice Company for all Services rendered on a bi-weekly basis. All invoices shall detail the Services performed and the expenses, (if any), incurred and shall contain sufficient details of such work as may be required by Company. All invoices shall become due thirty (30) days following receipt by Company of the invoice. 3. Expenses. Company shall reimburse Consultant only for expenses pre-approved by the Company in writing or via electronic mail. 4. Bonus. Consultant may receive a bonus based on the Company achieving its business goals. The Company in its sole discretion shall determine if the work performed hereunder warrants a bonus . 5. Stock Options: Consultant in connection with its agreement not to compete under this Agreement shall be eligible to receive up to 5,000 options to purchase common stock of the Company at a price to be determined by the Company’s Board of Directors but in no event shall the purchase price be less than $10.00 per share. The determination of number of options, vesting and other terms shall be consistent in approach with any plan adopted by Company in the Company’s sole discretion.
EXHIBIT C COMPANY CONTRACTS