This web-based outline is an agreement covering services relating to the design of a new Web Site or Graphic Design. The actual services to be performed by the consultant (referred to in this form of agreement as the “Designer” also known as My Computer Angel, LLC.), and the compensation to be paid by the Web site owner/Client (referred to in this form of agreement as the “Client”), will be described in the estimates provided by the Designer. The balance of the agreement deals with other important issues, including protection of confidential information disclosed to the designer by the client (Section 2), ownership of materials developed by the designer (Section 3), and dispute resolution using arbitration procedures. (Section 10).
This Consulting Agreement (“Agreement”) is made and entered into as of (current date) by and between My Computer Angel, (“Designer”), and the Client (“Client”). Client desires to engage Designer as an independent contractor to perform consulting services for Client and Designer is willing to perform such services, on the terms and conditions set forth below, in consideration of the mutual promises contained herein, the parties agree as follows:
1. Services and Compensation
1.1 Engagement and Services
Client hereby engages Designer, and Designer accepts such engagement, subject to the terms and conditions contained herein, to perform for Client the services described in an Estimate/or agreed upon Invoice (“the Services”). If Client requests and Designer agrees to provide additional Services, the parties will enact a separate Estimate/Invoice to the original Agreement describing the additional Services and compensation. All Estimates/Invoice(s) must be executed by the parties, and are subject to the terms and conditions of this Agreement.
Designer shall use reasonable commercial efforts to meet and delivery dates for work product set forth in theEstimates/Invoice(s), and to deliver work product to Client that conforms to any project specifications set forth in such Estimates/Invoice(s).
Designer warrants that the Services will be performed promptly, diligently and in accordance with all reasonable professional standards for similar services, by qualified trained and experienced personnel of Designer.
In consideration for the performance of the Services of the Designer, Client agrees to pay Designer the compensation set forth in the applicable Estimates/Invoice on a net 30 basis following receipt of Designer’s invoice. Client shall not be responsible for any expenses or costs incurred by Designer that are not identified in any Estimate/Invoice, unless authorized in advance in writing by Client.
2.1 Definition of Confidential Information
“Confidential Information” means any Client proprietary information, 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 Client either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment.
Confidential information does not include information which (i) is known to Designer at the time of disclosure to Designer by Client as evidenced by written records of Designer, (ii) has become publicly known and made generally available through no wrongful act of Designer or (iii) or has been rightfully received by Designer from a third party who is authorized to make such disclosure.
2.2 Use of Confidential Information by Designer
Designer will not, during or subsequent to the term of this Agreement, use Client’s Confidential Information for any purposes whatsoever other than performance of the Services on behalf of Client or disclose Client’s Confidential Information to any third party, and it is understood that said Confidential Information shall remain the sole property of Client. Designer further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not limited to, having each employee of Designer, if any, with access to any Confidential Information execute a nondisclosure agreement containing provisions in Client’s favor substantially similar to Sections 2, 3 and 5 of the Agreement. Without Client’s prior written approval, Designer will not directly or indirectly disclose to anyone the existence of this Agreement or the fact that Designer has this arrangement with Client.
Designer agrees that Designer will not, during the term of this Agreement, improperly use or disclose any proprietary information or trade secrets of any former or current employer or other person or entity with which Designer has an agreement or duty to keep in confidence information acquired by Designer in confidence, if any, and that Designer will not bring onto the premises of Client any unpublished document or proprietary information belonging to such employer, person, or entity unless consented to in writing by such employer, person or entity.
Designer will indemnify Client and hold it 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 Client’s use of the work product of Designer under this Agreement.
2.4 Confidential Information of Third Parties
Designer recognizes that Client has received and in future will receive from third parties their confidential or proprietary information subject to a duty on Client’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Designer agrees that Designer owes Client and such third parties, during the term of this Agreement and thereafter, a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out the Services for Client consistent with Client’s agreement with such third party.
2.5 Return of Confidential Information
Upon the termination of this Agreement, or upon Client’s earlier request, Designer will deliver to Client all of Client’s property or Confidential Information in tangible form that Designer may have in Designer’s possession or control.
3.1 Work Product Owned by Client
Designer agrees that all results and proceeds of Designer’s services, including without limitation all project deliverables, work-in-progress, copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets (collectively, “Work Product”) conceived, made or discovered by Designer, solely or in collaboration with others, during the period of this Agreement which relate in any manner to the business of Client that Designer may be directed to undertake, investigate or experiment with or which Designer may become associated with in work, investigation or experimentation in the line of business of Client in performing the Services hereunder are the sole property of Client.
In addition, any Work Product which constitute copyrightable subject matter shall be considered “works made for hire” as that term is defined in the United States Copyright Act with Client as the sole author and owner thereof. Designer further agrees to assign and does hereby irrevocably and fully assign to Client without reservation all right, title and interest in and to the Work Product, including without limitation all rights therein and thereto throughout the universe in perpetuity in any and all media whether now known or hereafter devised, and any and all copyrights, patents, mask work, rights, trade secrets, database rights or other intellectual property rights relating thereto, however denominated.
Designer hereby waives any so-called “moral rights” in and to the Work Products and agrees to waive and not assert any so-called “moral rights” against Client or its successors, assigns or licensees.
3.2 Assistance in Perfection of Client Rights
Designer agrees to assist Client, or its designee, at Client’s expense, in every proper way to secure Client’s rights in the Work Product, to confirm the assignment to and ownership of the Work Product by Client, and to secure Client’s rights to any copyrights, patents, mask works rights or other intellectual property rights relating thereto in any and all countries, including the disclosure to Client of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments which Client shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to Client, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Work Product, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. Designer further agrees that Designer’s obligation to execute or cause to be executed, when it is in Designer’s power to do so, any such instrument or papers shall continue after the termination of this Agreement.
Designer agrees that if, in the course of performing the Services, Designer incorporates into any Work Product developed hereunder any invention, improvement, development, concept, discovery or other proprietary information owned by Designer or in which Designer has an interest, Designer shall notify Client in advance and obtain Client’s prior written consent, and Client is hereby granted and shall have a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make, have made, modify, use and sell such item as part of or in connection with such Work Product.
3.4 Power of Attorney
Designer agrees that if Client is unable for any reason to promptly secure Designer’s signature for any document confirming Client’s ownership rights hereunder, or to apply for or to pursue any application for any United States or foreign patents or mask work or copyright registrations or recordations covering the Work Product assigned to Client above, then Designer hereby irrevocably designates and appoints Client and its duly authorized officers and agents as Designer’s agent and attorney-in-fact, which appointment shall be deemed a power coupled with an interest, to act for and in Designer’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the confirmation of Client’s ownership rights hereunder and the prosecution and issuance of patents, copyright and mask work registrations thereon with the same legal force and effect as if executed by Designer.
Designer certifies that it will from time to time during the term of this Agreement or any extension thereof keep Client advised as to Designer’s progress in performing the services hereunder and that Designer will, as requested by Client, prepare written reports with respect thereto. It is understood that the time required in the preparation of such written reports shall be considered time devoted to the performance of Designer’s Services.
5. Conflicting Obligations
Designer certifies that Designer has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude Designer from complying with the provisions hereof, and further certifies that Designer will not enter into any such conflicting Agreement. In view of Designer’s access to Client’s trade secrets and proprietary know-how, Designer further agrees that Designer will not, without Client’s prior written consent, design identical or substantially similar designs as those developed under this Agreement for any third party during the term of this Agreement.
6. Term and Termination
6.1 Commencement and Termination Dates
This Agreement will commence on the date first written above and will continue until the earlier of (i) final completion of the Services or (ii) earlier termination as provided below.
6.2 Client’s Right to Terminate Agreement
Client may terminate this Agreement upon giving 30 business days prior written notice thereof to Designer. Any such notice shall be addressed to Designer at the address shown below or such other address as either party may notify the other of and shall be deemed given upon delivery if personally delivered, or 72 hours after deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested. Client may terminate this Agreement for default immediately and without prior notice if Designer refuses to or is unable to perform the services or is in breach of any material provision of this Agreement.
6.3 Rights and Duties on Termination
Upon such termination all rights and duties of the parties toward each other cease except:
(i) that Client shall be obliged to pay, within days of the effective date of termination, all amounts owing to Designer for unpaid Services and related expenses, if any, in accordance with the provisions of Section 1 (Services and Compensation) hereof; provided that this Agreement was not terminated by Client due to the breach or default by Designer; and
(ii) Sections 2 (Confidentiality), 3 (Ownership) and 8 (Independent Contractor) shall survive termination of this Agreement, and
(iii) Designer shall return to Client any and all Work Product, whether completed or in progress, and all materials supplied by Client to Designer, including without limitation, software, tapes, listings, documents or equipment.
The Services to be performed by Designer hereunder are personal in nature, and Client has engaged Designer as a result of Designer’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 Designer without the express written consent of Client.
8. Independent Contractor
Nothing in this Agreement shall in any way be construed to constitute Designer as an agent, employee or representative of Client, but Designer shall perform the Services hereunder as an independent contractor. Designer agrees to furnish (or reimburse Client for) all tools and materials necessary to accomplish this contract, and shall incur all expenses associated with performance, except as expressly provided in the Estimates/Invoice(s) of this Agreement. Designer acknowledges and agrees that Designer is obligated to report as income all compensation received by Designer pursuant to this Agreement, and Designer agrees to and acknowledges the obligation to pay all self-employment and other taxes thereon. Designer further agrees to indemnify Client and hold it harmless to the extent of any obligation imposed on Client (i) to pay in withholding taxes or similar items or (ii) resulting from Designer’s being determined not to be an independent contractor.
Designer acknowledges and agrees, and it is the intent of the parties hereto, that Designer receive no benefits from Client, either as an independent contractor or employee. If Designer is reclassified by a state or federal agency or court as an employee for tax or other purposes, Designer will become a non-benefit employee and will receive no benefits from Client, except those mandated by state or federal law, even if by the terms of the benefit plans or programs of Client in effect at the time of such reclassification Designer would otherwise be eligible for such benefits.
10. Arbitration and Equitable Relief
10.1 Agreement to Arbitrate
Except as provided in Section 10.4 below, Client and Designer 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 settled by binding arbitration to be held in [“location”] in accordance with the [“identity arbitration rules”] (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.
10.2 Governing Law
The arbitrator (s) shall apply Florida law to the merits of any dispute or claim, without reference to conflicts of law rules. Designer hereby consents to the personal jurisdiction of the state and federal courts located in Florida for any action or proceeding arising from or relating to this Agreement or relating to any arbitration in which the parties are participants.
10.3 Costs and Expenses of Arbitration
Client and Designer shall each pay one-half of the costs and expenses of such arbitration, and each shall separately pay its counsel fees and expenses.
10.4 Injunctive Relief
Designer agrees that it would be impossible or inadequate to measure and calculate Client’s damages from any breach of the covenants set forth in Sections 2 or 3 herein. Accordingly, Designer agrees that if Designer breaches Section 2 or 3, Client will have available, 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 and specific performance of any such provision. Designer further agrees that no bond or other security shall be required in obtaining such equitable relief and Designer hereby consents to the issuances of such injunction and to the ordering of such specific performance.
Designer agrees to defend and indemnity Client from and against any and all claims, demands or liability arising out of or relating to (i) any injury to persons or damage to property caused by breach of contract, willful misconduct or negligent acts by Designer or by the Agreement, or (ii) any alleged infringement by the Work Product of any copyright, trademark, trade secret, patent or other intellectual property right of any third party.
12. Governing Law
This Agreement, the rights and obligations of the parties hereto, and any claims or disputes thereto, shall be governed by and construed in accordance with the laws of the State of Florida without reference to conflict of law principles.
13. Entire Agreement
This Agreement is the entire agreement of the parties and supersedes any prior or contemporaneous agreements between them, whether written or oral, with respect to the subject matter hereof. This Agreement may not be modified, replaced or rescinded except pursuant to a written instrument signed by a duly authorized representative of each party. If any provisions of this Agreement is determined by a court of competent jurisdiction or other adjudicative body to be invalid, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. Waiver of any breach, or failure to enforce any term of this Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur, and no waiver hereunder shall be effective unless in writing and signed by a duly authorized representative of the party to be charged with such waiver.
Evelyn Dufner, or My Computer Angel, LLC.