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Contractor Terms
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“GTC”), apply to any Work Order between New Edge IT Services LLC (“Company”), a New York State Limited Liability Company, and a Contractor, for the provision of Services and delivery of the Deliverables. The reference Services made herein includes Deliverables, unless expressly stated otherwise. In the event of a conflict between the Work Order and the GTC, the Work Order governs. Any terms and definitions not defined hereunder have the meaning assigned to these in the Work Order. Contractor and Company are referred to each as a “Party” and collectively as the “Parties.” The GTC and Work Order are collectively referred to as the “Agreement.”
1. CONTRACTOR RELATIONSHIP: SERVICES AND PAYMENT
1.1 Services. Contractor shall perform the services (“Services”) and deliverables (“Deliverables”) on a project (“Project”) or a job (“Job”), as requested from Company from time to time, at Company’s direction, to Company’s satisfaction, and subject to the requirements set forth in a Work Order.
At no additional charge and if requested by Company, Contractor will provide reasonably detailed written updates on the status of the Services and make themselves available for conferences (whether by phone, digital communication or in person) with Company, to review the status of the Services.
1.2 Revisions. Company may reject any Services provided by Contractor if such work does not reasonably meet Company’s requirements under the Agreement. Company shall provide reasonable instructions within a certain amount of days of receipt of Deliverables. If Company does not review and provide instructions for revisions within a certain amount of days, the Deliverable is deemed rejected.
1.3 Payment. As full payment for all performed and accepted Services, warranties and performance of all other obligations set forth herein, Company shall pay Contractor for the Services as set forth in the Work Order, subject to all applicable withholding and other deductions required by law. Contractor will not be entitled to any additional compensation from Company except as explicitly detailed herein and any Services provided as revisions do not entitle Contractor to additional payment of Service Fee, whether payment is by the hour or per deliverable or task, unless the Parties agree otherwise.
1.4 Contractor Status. No Tax Obligations. Contractor is an independent contractor providing services to Company and is not Company’s employee or agent. The Parties have no other obligations to the other, but for such described in the Agreement. The Services are temporary, relate to a designated project or projects, and are provided on a non-exclusive basis. Contractor may perform the Services at a place, time, and with equipment at Contractor’s sole discretion, unless required otherwise for the performance of the Services or by the Project. Contractor shall have no authority to make any agreements or representations on Company’s behalf or to hold Contractor out to be Company’s employee, agent, or servant.
Contractor, and not Company, will be responsible for payment of workers’ compensation, disability benefits, unemployment insurance, and for withholding income taxes and social security for and on behalf of Contractor. Contractor will not be entitled to receive any benefits provided by Company to its employees.
If the Internal Revenue Service, any state, local, or foreign government agency, or other applicable entity claims Contractor is the employee of Company for purposes of withholding or other tax liability, Contractor will notify Company of the claim. Contractor will defend Company against the claim and will indemnify and hold Company harmless against any loss, damage, liability, expense (including reasonable attorneys’ fees), or assessment arising out of the claim.
2. TERM OF AGREEMENT. TERMINATION
2.1 Term. Termination for Convenience. This Agreement will commence on the Effective Date and will continue in effect thereafter until terminated as provided in therein. Company may terminate this Agreement or a Work Order for convenience at any time upon written notice to Contractor. Either Party may terminate this Agreement for convenience upon written notice to the other after full acceptance of the Services.
2.2 Termination for Cause. In the event of a material breach of this Agreement by either Party, the non-breaching Party may (reserving cumulatively all other rights and remedies in law and in equity) terminate the term of this Agreement by giving fifteen (15) days prior written notice. Notwithstanding the foregoing, this Agreement will not terminate at the end of the notice period if the Party in breach has substantially cured the breach about which it has been notified.
2.3 Termination Effect. In the event of any termination for any reason: (i) Contractor shall return or destroy (at Company’s request) all Confidential Information received under this Agreement, (ii) Contractor shall immediately stop work and promptly provide Company with all remaining Work Product, (iii) immediately following Company’s acceptance or rejection of the Deliverables, Contractor shall provide Company with a final invoice covering all approved Deliverables; (iv) Company shall pay the final invoice, along with any other unpaid amounts due within thirty (30) days of receipt.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 “Work Product” shall mean all the fruits of Contractor’s work for Company that authored or reduced to practice by Contractor, whether alone or together with others, in connection with the Services, as well as all intellectual property, trade secrets or other proprietary rights relating to the foregoing (such as copyrights; copyright registrations, renewals, and applications; trademarks, trade names, patents and patent applications). The Parties agree that the Work Product includes anything that is produced by Contractor at Company’s request prior to the Effective Date, whether subject to a prior agreement between the Parties or not.
3.2 Work-made-for-hire; Assignment in the alternative. From the moment it is first embodied in any tangible form, all Work Product, to the extent it is copyrightable, shall be considered a work made for hire (as that term is used in the US Copyright Statute) specially ordered or commissioned by Company. Company, its designee, its successors, or its assigns, shall be the sole owner of all Work Product and will have the right to register, in the office of the Register of Copyrights of the United States or any similar office, all or any part of the Work Product in its name as the owner and author thereof.
With respect to all other Work Product, and with respect to copyrightable Work Product to the extent that it or any part thereof is deemed not to be a work made for hire, Contractor hereby irrevocably assigns and transfers all of Contractor’s right, title, and interest in that Work Product or part thereof to Company. Contractor shall, upon request of Company, promptly execute, acknowledge, or deliver any papers deemed necessary by Company to document, enforce, protect, and otherwise perfect Company’s rights in and to the Work Product. Contractor irrevocably appoints Company and/or Company’s designee, successors, or assigns (if any) Contractor’s true and lawful attorney-in-fact to execute, acknowledge, and deliver on Contractor’s behalf any such papers that the Contractor fails or refuses to so execute, acknowledge, or deliver.
3.3 Moral Rights. To the extent it may be determined that Contractor has retained so-called “moral rights,” “rights of paternity,” or any other such inalienable rights and/or interests in and/or to Work Product, Contractor agrees either that Contractor shall waive such rights, or if applicable law does not permit such waiver, that Contractor will not, to the extent permitted by applicable law, at any time assert any such rights in any way with respect to the Work Product.
4. CONFIDENTIAL INFORMATION
4.1 At all times during the term of this Agreement and thereafter until such Information is no longer considered confidential by Company, Contractor shall keep all Confidential Information in trust and strict confidence, shall not use any Confidential Information for its own benefit or for any purpose other than the performance of the Services, and shall not disclose such Confidential Information publicly or to any third party without the express written consent of the Company, unless such disclosure is strictly necessary to perform the Services or Contractor is required by law to disclose Confidential Information, in each of which event Contractor may only disclose to the extent necessary. Information or material is “Confidential Information” of which Contractor knows or has reason to know are considered confidential by the Company. All Confidential Information remains the exclusive property of Company, and no license or other rights are granted to Contractor except as strictly necessary to perform the Services.
4.3 Contractor shall promptly notify Company of any actual or suspected misuse, misappropriation, or unauthorized disclosure of Confidential Information of which Contractor becomes aware. Except as expressly authorized by Company in writing, Contractor shall not make copies or duplicates of Confidential Information other than as reasonably necessary to perform the Services. Upon Company’s written request or upon rejection, completion, or termination of the applicable Work Order and the Agreement, Contractor shall promptly return or destroy all Confidential Information, including all copies thereof, in accordance with Company’s instructions.
4.4 Contractor will not have any obligation in connection with specific Confidential Information to the extent, but only to the extent that: (i) such Information is already known to Contractor at the time it is obtained from Company, (ii) such Information is or becomes publicly known in the trade or otherwise through no wrongful act of Contractor, or (iii) such Information is rightfully received by Contractor from a third party without restriction and without breach of this Agreement.
5. LIMITATIONS AND REQUIREMENTS SET BY THE WORK ORDER
5.1 “Scope” means anywhere in the world where Company is conducting business at such a time. “ Competing Business” means any business or person that either by way of its services, products, market, territory, scope of business, or in any ot her means, competes with Company, or that offers products or services identical or comparable to the Company’s current or reasonably anticipated business activities, or which is otherwise related to the business in which the Company is now involved or is reasonably anticipated to be involved with at such time.
5.2 Limitations. Within the Scope, and during the term of the Work Order, and for a period of twelve (12) months following the expiration or termination of the applicable Work Order, Contractor agrees not to, either alone or in association with others, either directly or indirectly, for Contractor’s own account or on behalf of other persons,
(a) recruit or solicit, hire or engage, any person who was employed as an employee or engaged as an independent contractor by Company or a client of Company, except for an individual whose relationship with the Company has been terminated for a period of six months or longer;
(b) contact, solicit, induce, engage, or attempt to do business with, directly or indirectly, any customer, prospective customer, or business partner of Company that was introduced to Contractor by Company or otherwise identified to Contractor in connection with the Services, except with Company’s prior written consent; or
(c) conduct any Competing Business, enter into an agreement for Services for or acquiring or becoming a member or shareholder of a Competing Business unless the Company permits one or more of the foregoing by way of written consent (email not deemed sufficient).
5.3 Conflicts with Contractor’s Work. During the term of this Work Order, Contractor agrees that Contractor will not engage in any other activities which conflict with Contractor’s obligations to Company.
6. REPRESENTATION AND WARRANTIES. INDEMNIFICATION.
6.1 Representation and Warranties. Contractor warrants and represents to the Company that (i) it has the full right and power to enter into this Agreement and to fulfill its obligations and promises made herein; (ii) material and information, including Work Product and Deliverables are authored and furnished in a manner that does not infringe on third party rights and are owned, held, or licensed in a manner sufficiently to license or assign to Company the use thereof for the purpose of this Agreeement; (iii) it will fulfill its obligations and promises made herein in compliance with all applicable Federal, state, and local laws, (iv) it will fully adhere to industry standards expected from Contractor, including, without limitation, timeliness of performance as well as professional conduct with Company and Company’s partners and clients, and (v) it will not breach any agreement to which Contractor is a party that prohibits, restricts, or limits use or disclosure of proprietary and/or trade secret information of any third party.
6.2 Indemnification. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Contractor agrees to indemnify, save and hold harmless the Company from any and all damages, liabilities, costs, losses or expenses (including reasonable attorneys’ fees and costs) which may be incurred as the result of any claim, suit or proceeding brought or threatened against Company (each a “Claim”) based on allegations which are inconsistent with any of Contractors representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or willful misconduct of Company provided that: (a) Company promptly notifies the Contractor in writing of the claim; (b) Contractor shall have sole control of the defense and all related settlement negotiations; however, Contractor shall not be entitled to settle any claim by admitting liability of Company, without Company’s express written permission; and (c) Company shall provide the Contractor with the assistance, information and authority necessary to perform the Contractor’s obligations under this section.
7. GENERAL
7.1 Notices. All notices to be given hereunder shall be sent in writing either by personal delivery, email or by certified or registered mail, return receipt requested. Personally delivered notices will be deemed given when delivered. Notices sent by certified or registered mail will be deemed given upon receipt. Notices sent by electronic mail will be deemed given when received. Notwithstanding the foregoing, notices of change of address will be deemed given only upon receipt by the Party to whom it is directed. All notices shall be sent to the addresses and emails on a Work Order, unless notification of change of address has been given in writing.
7.2 The Agreement. This Agreement represents the entire understanding between the parties, superseding all prior agreements between the parties with respect to the subject matter contained herein. The headings in this Agreement are for purposes of reference only. Each provision of this Agreement shall be interpreted as to be effective and valid under applicable law. Any provision of this Agreement held invalid or unenforceable shall be replaced by a valid or enforceable provision; and the remainder of the Agreement shall remain in full effect. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. This Agreement shall be binding upon nd inure to the benefit of the parties’ respective assigns, successors, heirs, and legal representatives. This Agreement cannot be modified or amended, except by an instrument in writing signed by both parties hereto. Contractor may not assign this Agreement without written Consent by Company; Company may freely assign this Agreement, or rights and obligations, to any third party. Contractor may not subcontract or delegate any Services or Deliverables, in whole or in part, without Company’s prior written approval, and Contractor shall remain fully responsible for the acts and omissions of any approved subcontractor.
This Agreement shall be exclusively governed by the laws of the State of New York and any dispute related to the Agreement shall be exclusively resolved in the state, federal, and/or administrative courts in the State of New York. Contractor and Company expressly consent to the exclusive jurisdiction of the foregoing courts and waive any jurisdictional or forum non-conveniens defenses each may have. Contractor expressly waives Contractor’s right hereunder to seek a jury trial or to seek equitable relief. This Agreement shall only be binding until executed by each Party in counterparts, including electronic counterparts, each of which shall be deemed to be an original.
7.3 Attorney’s Fees. In the event of any action, suit, arbitration, or proceeding arising from or based on this Agreement or the subject matter hereof, the prevailing Party shall be entitled to recover from the other, in addition to any other award or recovery, its outside attorneys' fees and costs incurred in connection with any such action, suit, arbitration, or proceeding and in connection with the collection of any award or other enforcement of any decision, ruling, judgment, award, or settlement.
7.4 Survival of Certain Sections. Any provision of this Agreement which by its terms is applicable to actions or periods occurring after termination of the Agreement will remain in full force and effect following termination of this Agreement, including without limitation, Sections 2.3, and 3 through 7.