GENERAL TERMS AND CONDITIONS
In consideration of the mutual promises and conditions contained herein, the Parties agree to the Specific Terms and Conditions, executed by the Parties, as well as the following provisions. Capitalized terms used but not defined herein shall have the respective meanings given to them in the Specific Terms and Conditions of this Agreement.
1. SERVICES. The Organization hereby engages you, and you hereby accept such engagement, as an independent contractor to provide the Services identified in the Specific Terms and Conditions of this Agreement. The Organization shall not control the manner or means by which you perform the Services. Unless otherwise set forth in this Agreement, you shall furnish, at your own expense, the equipment, supplies, and other materials used to perform the Services. The Organization shall provide you with access to certain premises and equipment to the extent necessary for the performance of the Services. The Organization reserves the right to contract with other parties for similar services during the term of this Agreement.
2. TERM; TERMINATION. The term of this Agreement is identified in the Specific Terms and Conditions of this Agreement unless earlier terminated in accordance with this Agreement (the “Term”). Any extension of the Term will be subject to mutual written agreement between the Parties.
The Organization may terminate this Agreement without cause immediately upon written notice; you may terminate this Agreement without cause upon thirty days’ written notice. You or the Organization may terminate this Agreement, effective immediately upon written notice to the other Party to this Agreement, if the other Party materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the other Party does not cure such breach within ten business days after receipt of written notice of such breach. Additionally, if you are a natural person, this Agreement shall terminate immediately upon your death; in such event, the Organization shall pay your estate any fees due to you at the time of the termination. In the event of early termination of this Agreement, you shall submit a final invoice to the Organization within 30 days of termination, and the Organization shall pay you any undisputed Fees then due and payable for any Services completed up to and including the date of termination.
Upon expiration or termination of this Agreement for any reason, or at any other time upon the Organization’s written request, you shall within five business days after such expiration or termination: (a) deliver to the Organization all deliverables, whether complete or incomplete, and all hardware, software, tools, equipment, or other materials provided for your use by the Organization; and (b) certify in writing to the Organization that you have complied with the requirements of this clause. Any provision hereof which imposes an obligation on you or the Organization after termination or expiration of this Agreement will survive termination or expiration hereof and be binding upon you and the Organization.
3. FEES; EXPENSES; BILLING; PAYMENT. As full compensation for the Services and the rights granted to the Organization in this Agreement, the Organization shall pay you the fees identified in the Specific Terms and Conditions of this Agreement (the “Fees”), payable on completion of the Services to the Organization’s satisfaction. You acknowledge that you will receive an IRS Form 1099-MISC from the Organization, if required, and that you shall be solely responsible for all federal, state, and local taxes. Unless otherwise approved in writing by the Organization’s Executive Director, you are solely responsible for any travel or other costs or expenses incurred by you in connection with the performance of the Services.
You will submit monthly written statements to the Organization’s accounts payable department within seven business days of the calendar month-end, unless otherwise instructed by the Organization. The invoice should include the following: (a) an invoice number; (b) the dates covered by the invoice; and (c) a summary of the work performed. Invoices for work based on set periods of time shall be prorated when applicable. The Organization shall pay all undisputed Fees within thirty business days after the Organization’s receipt of an invoice submitted by you.
4. RELATIONSHIP OF THE PARTIES. You are an independent contractor of the Organization, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between you and the Organization for any purpose. You have no authority, and shall not hold yourself out as having authority, to bind the Organization and you shall not make any agreements or representations on the Organization’s behalf without the Organization’s prior written consent.
You will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing, or retirement benefits or any other fringe benefits or benefit plans offered by the Organization to its employees, and the Organization will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on your behalf. You shall be responsible for, and shall indemnify the Organization against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by you in connection with the performance of the Services shall be your employees or contractors and you shall be fully responsible for them and indemnify the Organization against any claims made by or on behalf of any such employee or contractor.
5. CONFIDENTIALITY; WORK PRODUCT; NON-DISPARAGEMENT. You recognize and acknowledge that in the course of performing services required by this Agreement, you will have access to, become acquainted with, and obtain information and knowledge relating to the business, condition, methods of operation and other aspects of the Organization, its affiliates and their customers, employees and suppliers, some of which information and knowledge is confidential and proprietary, and that you could substantially detract from the value and business prospects of the Organization in the event, during the term of this Agreement or at any time thereafter, you were to disclose to any person not related to the Organization or use such information and knowledge for your advantage or the advantage of another person and/or entity. Accordingly, you hereby agree that, unless otherwise authorized in writing by the Organization, you will not disclose such information to any person, other than directors, officers, employees, accountants, lawyers, consultants, advisors, agents and representatives of, or other persons related to, the Organization, and that such disclosure shall be made only on a “need to know” basis.
You agree that it would be difficult to measure damage to the Organization from any breach by you of this confidentiality provision and that monetary damages would be an inadequate remedy for such breach. Accordingly, you agree that if you breach this confidentiality provision, the Organization will be entitled to, in addition to all other remedies it may have at law or equity, an injunction or other appropriate orders to restrain any such breach, without showing or proving actual damages sustained by the Organization. You shall also pay any and all costs, damages and other expenses, including without limitation all attorneys’ fees and other legal expenses, that are incurred by the Organization in enforcing this provision.
You acknowledge and agree that, except with regard to source code, any writings, works of authorship, technology, inventions, discoveries, ideas, and other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by you individually or jointly with others during the period of your relationship with the Organization and resulting from your work on behalf of the Organization (regardless of when or where the work product is prepared or whose equipment or other resources is used in preparing the same) and all printed, physical, and electronic copies, all improvements, rights, and claims related to the foregoing, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), patents, and other intellectual property rights therein arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto, including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, reissues, extensions, and renewals thereof (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Organization. You agree to reasonably cooperate with the Organization, without charge to the Organization, but at no expense to you, to: (i) apply for, obtain, perfect, and transfer to the Organization the Work Product and Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (ii) maintain, protect, and enforce the same, including, without limitation, executing and delivering to the Organization any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Organization to establish the Organization’s ownership of the Work Product, and you hereby irrevocably assign to the Organization, your entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Further, you hereby irrevocably waive, to the extent permitted by applicable law, any and all claims you may now or hereafter have in any jurisdiction to all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights” with respect to all Work Product and all Intellectual Property Rights therein.
Nothing contained in this Agreement shall be construed to reduce or limit the Organization’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Organization would have had in the absence of this Agreement.
Source Code. You understand and agree that all source code that you develop while performing work on behalf of the Organization will be licensed as open source technology, and you disclaim all rights to any open source code that you develop while performing work on behalf of the Organization. You will sign any assignment or other document requested by the Organization to establish your lack of ownership of the source code without charge to the Organization, but at no expense to you.
You agree that you shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory, maliciously false, or disparaging remarks, comments, or statements concerning the Organization or its businesses, or any of its employees, officers, or directors and their existing and prospective customers, suppliers, investors, and other associated third parties, now or in the future.
6. REPRESENTATIONS; WARRANTIES. You represent and warrant to the Organization that: (a) you have the right to enter into this Agreement, to grant the rights authorized herein and to perform fully all of your obligations in this Agreement; (b) your entering into this Agreement with the Organization and your performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which you are subject; (c) you shall perform the Services in compliance with all applicable federal, state, and local laws and regulations; (d) the Organization will receive good and valid title to all deliverables, free and clear of all encumbrances and liens of any kind; and (e) the Organization does not dictate the performance, methods, or process you use to provide the services completed for or in connection with the Organization.
7. DEFAULT. In the event of a default under this Agreement, the defaulting party will reimburse the non-defaulting party for all costs and expenses reasonably incurred by the non-defaulting party in connection with the default, including without limitation, attorneys’ fees. Additionally, in the event a suit or action is filed to enforce this Agreement or with respect to this Agreement, the prevailing party will be reimbursed by the other party for all costs and expenses incurred in connection with the suit or action, including without limitation, reasonable attorneys’ fees.
8. INDEMNIFICATION; INSURANCE; LIMITATION OF LIABILITY. YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE ORGANIZATION AND ITS AFFILIATED COMPANIES, SUBSIDIARIES, PARTNERS, FUNDERS, INSURERS, AND SPONSORS, AND THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (“RELEASED PARTIES”) FROM AND AGAINST ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, ACTIONS, JUDGMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RESULTING FROM: (A) BODILY INJURY, DEATH OF ANY PERSON OR DAMAGE TO REAL OR TANGIBLE, PERSONAL PROPERTY RESULTING FROM YOUR ACTS OR OMISSIONS; AND (B) YOUR BREACH OF ANY REPRESENTATION, WARRANTY, OR OBLIGATION UNDER THIS AGREEMENT. YOUR DUTY TO INDEMNIFY APPLIES TO ACTS OR OMISSIONS BY YOU AS WELL AS THE ACTS OR OMISSIONS OF OTHERS, INCLUDING THE COMBINED AND LONE ACTS OR OMISSIONS OF THE RELEASED PARTIES. THE ORGANIZATION MAY SATISFY SUCH INDEMNITY, IN WHOLE OR IN PART, BY WAY OF DEDUCTION FROM ANY PAYMENT DUE TO YOU. YOU EXPRESSLY AGREE THAT THE INDEMNITY AGREEMENT PROVISIONS HEREIN ARE INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY LAW, AND YOU UNDERSTAND AND AGREE THAT THE ORGANIZATION SHALL INCUR NO LIABILITY OF ANY NATURE AS RESULT OF YOUR PROVISION OF SERVICES THROUGH THIS AGREEMENT.
You agree to purchase and maintain, at your own expense, insurance to protect you from workers' compensation claims or other employee benefit claims, claims for damages, because of bodily injury, including death, and from claims for damages, to property which may arise out of or result from your operations under this Agreement, whether such operations be by you, any subcontractor, or anyone directly or indirectly employed or otherwise retained by or through you. You shall list the Organization as an additional insured for all required insurance and shall provide the Organization with your Certificate of Insurance prior to beginning services, which certificate will indicate that such insurance policies may not be canceled before the expiration of a 30-calendar day notification period and that the Organization will be immediately notified in writing of any such notice of termination. If you are an entity other than a natural person providing services to or on behalf of the Organization, this insurance shall be written for no less than the following amounts: (1) automobile insurance – $500,000; (2) comprehensive general liability (including applicable umbrella insurance) – 10 times the value of this Agreement or $1,000,000, whichever is less; and (3) workers compensation insurance – $500,000. If you are a natural person providing services to or on behalf of the Organization that involve driving, your automobile insurance shall be written for no less than $50,000. Regardless of whether you are a natural person or other entity, you agree to maintain professional liability insurance if you are providing services as any of the following: attorney or veterinarian. Regardless of whether you are a natural person or other entity, if you fail to maintain workers compensation insurance, you agree to a workers’ compensation waiver of liability and shall sign any documents requested to formally document such waiver during and up to five years after the valid term of this agreement.
Notwithstanding any language to the contrary herein, the Organization’s liability to you or to any third party, for any damage arising from the performance of this Agreement shall not exceed One Thousand Dollars ($1,000).
9. OTHER BUSINESS ACTIVITIES; NO CONFLICT OF INTEREST. You may be engaged or employed in any other business, trade, profession, or other activity which does not place you in a conflict of interest with the Organization; provided, that, during the Term, you shall not be engaged in any business activities that do or may compete with the business of the Organization without the Organization’s prior written consent, to be given or withheld in its sole discretion. To the best of your knowledge, you are not related to anyone who works for the Organization or who serves on the board of directors of the Organization.
10. ASSIGNMENT. You shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Organization’s prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. The Organization may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the Parties hereto and their respective successors and assigns.
You and your workers shall cooperate with the Organization and provide the Organization with all information and/or documentation including driver’s license information, social security number and completed background check documents to allow for the Organization to attain a criminal background check regarding you and/or your workers, if the Organization requests such information to protect its interests.
Because the Organization has a vital interest in maintaining a safe, healthy, and efficient work environment for all employees and contractors, the Parties agree and recognize that the Organization’s work environment should be free from the use of illegal drugs, alcohol, and the unauthorized use of prescription drugs. Unless otherwise specifically agreed to in writing, you are not authorized to drive on behalf of the Organization. You agree to comply with all applicable policies and procedures of the Organization.