Terms of Service

INDEPENDENT CONTRACTOR AGREEMENT

This Independent Contractor Agreement (the “Agreement”) is made and entered into as of [DATE OF AGREEMENT] (the “Effective Date”) between [NAME OF COMPANY] (the “Company”), a [STATE] [TYPE OF COMPANY], and [NAME OF CONTRACTOR], a [STATE] [“RESIDENT”/TYPE OF COMPANY] (the “Contractor”) (collectively, the “Parties”).

The Parties therefore agree as follows:

1. TERM

This Agreement shall take effect as of the Effective Date, and remains in full force and effect until the Contractor has completed the Services (the “Term“), unless earlier terminated under Section 10.

2. SERVICES

(a) During the Term, Contractor will perform the services, as more particularly described below, for Company as an independent contractor (the “Services”). The Services have been specially ordered and commissioned by Company. Contractor shall provide the necessary equipment to perform the Services. The Services include:

[List or describe services to be provided by Contractor]

(b) The content, style, form and format of any work product of the Services shall be completely satisfactory to Company and shall be consistent with Company’s standards. Completeness of work product shall be determined by Company in its sole discretion, and Contractor agrees to make all revisions, additions, deletions or alterations as requested by Company.

(c) In the event that there are changes to Contractor’s schedule that could adversely affect the availability of the Contractor, then Contractor agrees to notify the Company of any such change(s) no later than seven (7) days prior to such change(s), or promptly and without delay if Contractor becomes aware of such change(s) within the seven (7) day period.

3. CONTRACTOR STAFF

(a) Contractor may use the services of Contractor’s own employeers or agents (the “Contractor Staff“) in the performance of the Services; however, Contractor shall be solely responsible for all costs associated with the Contractor Staff. Contractor agrees that all Contractor Staff shall be compensated, taxes withheld, and other benefits made available as required by applicable law and regulations.

(b) Contractor represents and warrants to Company that the Contractor Staff will have (a) sufficient expertise, training and experience to perform the Services; and (b) executed agreements which state that (i) all work done by the employee will be a work made for hire, as that term is defined under U.S. copyright law, and will be owned by Company; and (ii) the employee assigns all rights in and to all work done by the employee to Company. Contractor shall require all employees who perform Services and/or have performed Services hereunder to (1) be bound by the same standards of confidentiality as Contractor is bound by Section 6 of this Agreement; and (2) be bound by a written work made for hire agreement containing terms identical or substantially similar to that of Section 5 of this Agreement and in favor of Company.

4. COMPENSATION

(a) The Contractor shall be compensated in such amount and at such times as follows:

[_______________].

No other fees and/or expenses will be paid to Contractor, unless such fees and/or expenses have been approved in advance by the appropriate Company executive in writing. The Contractor shall issue invoices to the Company within seven (7) days of completing the Services, unless otherwise instructed by the Company. Contractor shall provide documentation and proof of services completed to the satisfaction of Company. The Company shall remit payment to the Contractor within fourteen (14) days of receiving the invoice from the Contractor.

(b) The Company shall not be responsible for federal, state and local taxes derived from the Contractor’s net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers’ compensation, disability benefits or other legal requirements applicable to the Contractor.

(c) Contractor shall be solely responsible for any and all taxes, Social Security contributions or payments, disability insurance, unemployment taxes, and other payroll type taxes applicable to such compensation pursuant to this Agreement.

(d) Contractor hereby indemnifies and holds Company harmless from, any claims, losses, costs, fees, liabilities, damages or injuries suffered by Company arising out of Contractor’s failure with respect to its obligations in this Section 4.

5. OWNERSHIP

(a) As a result of providing the Services, the Contractor or Contractor Staff may create certain work product (the “Work Product“).

(b) The Parties intend that, to the extent the Work Product or a portion of the Work Product qualifies as a “work made for hire,” within the definition of Section 101 of the Copyright Act of the United States (17 U.S.C. § 101), it will be so deemed a work made for hire. If the Work Product or any portion of the Work Product does not qualify as work made for hire, and/or as otherwise necessary to ensure the Company’s complete ownership of all rights, titles and interest in the Work Product, the Contractor hereby transfers and assigns to the Company all rights, titles and interests throughout the world in and to any and all Work Product. This transfer and assignment includes, but is not limited to, the right to publish, distribute, make derivative works of, edit, alter or otherwise use the Work Product in any way the Company sees fit.

(c) Upon Company’s reasonable request, and at Company’s sole cost and expense, Contractor shall take such steps and actions, and provide such cooperation and assistance to Company and its successors, assigns, and legal representatives, including the execution and delivery of any affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documents, as may be reasonably necessary to effect, evidence, or perfect the assignment of the Work Product to Company, or any assignee or successor thereto.

(d) The Company grants the Contractor, a limited, non-exclusive, non-transferable, non-assignable, royalty free, worldwide license to display the Work Product on a platform personally controlled, in whole or in part, by the Contractor. The Company may revoke this license at any time by requesting the removal of the Work Product displayed by the Contractor. Upon such request, the Contractor shall remove the Work Product from the platform, and provide written notification of such removal.

6. CONFIDENTIAL INFORMATION

(a) Contractor acknowledges and agrees that Company now owns and will hereafter develop, compile and own certain proprietary techniques, strategies, trade secrets, and confidential information which have great value in its business, including any and all information and materials of and relating to the planning, development, and operation of the Company (collectively, “Company Information”). Company Information is to be broadly defined and includes all information which has or could have commercial value or other utility in the business in which Company is engaged or contemplates engaging or the unauthorized disclosure of which could be detrimental to the interests of Company, whether or not such information is identified by Company.

(b) Notwithstanding any other provisions of this Agreement, Confidential Information shall not include information that (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Contractor, Contractor Staff, or any of Contractor’s representatives; (b) was known by Contractor or was in Contractor’s possession, as established by documentary evidence, prior to being disclosed by or on behalf of Company; or (c) was or is independently developed by Contractor, as established by documentary evidence, without reference to or use of, in whole or in part, any of Company’s Confidential Information.

(c) Contractor agrees that Contractor will keep any and all of the Confidential Information in confidence and not use it or disclose it to any other person or entity except as reasonably required for the purposes for which Company has allowed Contractor to have such Confidential Information. With respect to all such information, Contractor will exercise the same degree of care to protect Company’s Confidential Information that Contractor exercise with respect to protecting Contractor’s own confidential information and in no event less than reasonable care. In this regard, Contractor will make sure that before disclosing any Confidential Information to any of Contractor’s employees, affiliates or others, Contractor has (1) ensured that they are bound by written agreement not to disclose or use such information other than as they are permitted to use it and Contractor will provide Company with a copy of such agreement before disclosing any of the Confidential Information to any such individual, or (2) received express written permission from Company to disclose any of the Confidential Information. Except as expressly provided herein, this Agreement does not confer any right, license, ownership or other interest in or title to the Confidential Information to Contractor.

(d) Contractor acknowledges that use or disclosure of any Confidential Information in a manner inconsistent with this Agreement will give rise to irreparable injury for which damages would not be an adequate remedy.  Accordingly, in addition to any other legal remedies which may be available at law or in equity, Company shall be entitled to equitable or injunctive relief against the unauthorized use or disclosure of Confidential Information. Company shall be entitled to pursue any other legally permissible remedy available as a result of such breach, including but not limited to, damages, both direct and consequential. In any action brought by Company under this Section 6, Company shall be entitled to recover its attorney’s fees and costs from Contractor.

7. INDEPENDENT CONTRACTOR STATUS

(a) The Parties intend that the Contractor and any Contractor Staff be engaged as independent contractors of Company. Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.

(b) The Contractor may not act as agent for, or on behalf of, the Company, or to represent the Company, or bind the Company in any manner.

(c) The Contractor and any Contractor Staff will not be entitled to worker’s compensation, retirement, insurance or other benefits afforded to employees of the Company.

(d) Contractor shall be responsible for providing, at Contractor’s expense, and in Contractor’s name, unemployment, disability, worker’s compensation and other insurance, as well as licenses and permits usual or necessary for conducting the Services.

8. REPRESENTATIONS AND WARRANTIES

Both parties represent and warrant to the other that (a) each has full power and authority to enter into this Agreement; and (b) neither will violate the terms of any agreement with any third party. Contractor represents and warrants that the Services and any work product thereof are the original work of Contractor, do not and will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party.

9. INDEMNIFICATION

Contractor shall defend, indemnify and hold Company and its successors, assigns and licensees harmless from any and all claims, actions and proceedings, and the resulting losses, damages, costs and expenses (including reasonable attorneys’ fees) arising from any claim, action or proceeding based upon or in any way related to Contractor’s, or Contractor’s employees, breach or alleged breach of any representation, warranty or covenant in this Agreement, and/or from the acts or omissions of Contractor or Contractor’s employees.

10. TERMINATION

(a) Subject to 10(b) herein, this Agreement is terminable at any time by Contractor upon thirty (30) days written notice to Company. Company may terminate this Agreement at any time for any reason, with or without cause, effective upon five (5) calendar days’ notice to Contractor. If Company exercises its right to terminate the Agreement, any obligation it may otherwise have under this Agreement shall cease immediately, except that Company shall be obligated to compensate Contractor for work performed to Company’s satisfaction in its sole discretion up to the time of termination. Upon termination of this Agreement by either party, or at the Company’s request at any time during the term of this Agreement, Contractor and Contractor Staff shall promptly return to Company all copies, whether in written, electronic or other form or media, of Company’s Confidential Information, or destroy all such copies and certify in writing to Company, at Company’s request, that such Confidential Information has been destroyed. In addition, Contractor shall also submit to Company any documents and information that Company requests that is related to the Services within forty-eight (48) hours of such written request, including but not limited to contracts, invoices, usernames and passwords, contact information, written plans and works in progress, etc.

(b) In the event that Company breaches any representation, warranty, covenant or other obligation set forth in this Agreement, and fails to cure such breach as promptly as practicable but in any event within thirty (30) calendar days of notice of such breach by Contractor, then Contractor shall be entitled to terminate this Agreement at any reasonable time thereafter with immediate effect and without any penalty, liability or further obligation. If Contractor exercises its right to terminate the Agreement, any right and obligation it may otherwise have under this Agreement shall cease immediately.

(c) The provisions of Sections 3, 4(b), 4(c), 4(d), 5, 6, 7, 8, 9, 10, 11 and 12 shall survive the expiration or termination of this Agreement.

11. LIABILITY

EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, COMPANY SHALL NOT BE LIABLE TO CONTRACTOR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.

12. GENERAL

(a) This Agreement may be amended only by written agreement duly executed by an authorized representative of each party (email is acceptable).

(b) This Agreement shall not be assigned by either party without the express written consent of the other party.

(c) This Agreement shall be interpreted and governed by the laws of the State of Tennessee, without reference to conflict of laws principles thereof; and the exclusive venues for any dispute arising hereunder shall be the state and federal courts located in Davidson County, Tennessee.

(d) If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.

(e) A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.

(f) This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.

The Parties are signing this Agreement on the Effective Date.

[COMPANY NAME]

Signature: _____________________________

Name: ________________________________

Title: _________________________________

[CONTRACTOR NAME]

Signature:______________________________

Name: ________________________________

Title: _________________________________

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