This Independent Contractor Agreement (the “Agreement”) sets forth terms under which Contractor (as identified below) shall at the request of ThingLogix Inc., a California corporation with offices at 949 Cornell Ave, Albany, CA 94706 (“ThingLogix”) provide professional services either directly to ThingLogix or to customers of ThingLogix on ThingLogix’s behalf.
“Deliverables” means the tangible and intangible results of the Services, including, but not limited to, any report, software, code, documentation or other material of any type provided by Contractor to ThingLogix under this Agreement.
“Open Source Software” means any “open source” code (as defined by the Open Source Initiative), “free” code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.
“Pre-Existing Intellectual Property” means any proprietary methodologies, tools, models, software, procedures, documentation, know-how, processes, trade secrets, inventions, or works of authorship that have already been conceived or developed by Contractor before Contractor renders any Services under this Agreement.
“Third Party Materials” means any code, libraries, programs, software, documentation or other intellectual property of any type which is not created solely by Contractor.
Contractor shall provide professional services (“Services”) to ThingLogix as described on one or more Statements of Work signed by Contractor and ThingLogix which reference this Agreement (“SOW” or “Statement of Work”). Contractor shall perform Services in a prompt manner and provide each Deliverable no later than the delivery dates specified in the applicable SOW. At the direction of ThingLogix, Contractor shall provide Services directly to ThingLogix or to customers of ThingLogix on ThingLogix’s behalf. The parties may execute additional Statements of Work describing Services, which will become part of this Agreement upon execution by Contractor and ThingLogix.
3. No Subcontractor
Contractor may not subcontract the Services without the prior express written consent of ThingLogix.
ThingLogix shall have the right to modify, reject, cancel or terminate any SOW and any related plans, schedules or work in process with written notice to Contractor. In the event ThingLogix terminates a Statement of Work other than for Contractor’s material breach pursuant to Section 9 (Term and Termination) prior to completion of Services, ThingLogix shall pay Contractor the fees due under the SOW with respect to Services completed as of the date of termination.
5. Third Party Materials and Open Source
5.1 Third Party Materials. Contractor shall not incorporate any Third Party Materials into a Deliverable, furnish any Third Party Materials into a Deliverable, furnish any Third Party Materials in conjunction with a Deliverable, or develop a Deliverable in a manner that requires ThingLogix to use any Third Party Materials in order to use such Deliverable, unless Contractor (i) has specifically identified such Third Party Materials in the applicable SOW or otherwise obtained ThingLogix’s prior written consent and (ii) has obtained a license for ThingLogix’s (and ThingLogix’s licensees’) benefit which is as extensive as the license set forth in Section 7.5(b) below (“Third Party Materials License”).
5.2 Use Of Open Source. The obligations set forth in Section 5.1 with respect to Third Party Materials apply to any use of Open Source Software in connection with any Deliverable (excluding the obligation to obtain a Third Party Materials License unless otherwise specified in the applicable SOW). If ThingLogix approves use by Contractor of any Open Source Software in connection with a Deliverable, Contractor shall include documentation with each such Deliverable identifying any and all Open Source Software that is included in such Deliverable and provide ThingLogix a copy of the applicable license prior to inclusion.
5.3. Types of Open Source Never Allowed. Notwithstanding the foregoing, Contractor shall not provide as part of any Deliverable, or otherwise use in connection with the Services, any software which contains any Open Source Software which is licensed under the “General Public License,” “LGPL,” “AGPL,” or any other license which could (i) compromise or interfere in any way with ThingLogix’s intellectual property rights or (ii) require ThingLogix to publicly release, distribute or license the source code to any Deliverable, to any ThingLogix software, or to any of ThingLogix’s customers’ or clients’ software , (iii) require that any disclosure, distribution or license of any Deliverable, any ThingLogix software, or any of ThingLogix’s customers’ or clients’ software be at no charge, or (iv) require that any other licensee of any Deliverable, any ThingLogix software, or any of ThingLogix’s customers’ or clients’ software be permitted to modify, make derivative works of, reverse-engineer or redistribute such Deliverable or software.”
6. Representations and Warranties
6.1 Contractor’s Representations and Warranties: Contractor hereby represents and warrants that:
(a) Due Authority. Contractor has full right and power to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Contractor may have to any other party.
(b) Standard of Performance. Contractor will perform the Services in a timely, professional and workmanlike manner and with a degree of quality equal to or higher than applicable industry standards for similar services. In addition, all Services and each Deliverable shall conform in all material respects with the description set forth in the SOW.
(c) No Harmful Code. The Services and all Deliverables shall be free of any: (i) viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code; (ii) software disabling devices, time-out devices, counter devices and devices intended to collect data regarding usage of the software without the knowledge of ThingLogix and (iii) Open Source Software, except as expressly authorized by ThingLogix in writing in accordance with Section 5 (Third Party Materials and Open Source Software).
(d) Intellectual Property Rights. Each Deliverable is and will be an original work of Contractor except for any Third Party Materials and Pre-Existing Intellectual Property incorporated therein as approved under Section 5 (Third Party Materials and Open Source Software) or 7.5 (Pre-Existing Intellectual Property), as applicable. Neither the Deliverables nor any element thereof will (i) infringe the intellectual property rights of any third party or (ii) be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments.
6.2 Remedy of Defects. Contractor shall, without charge, correct any non-conformity, defect or malfunction in any Deliverable reported by ThingLogix within 30 days of receipt of notice from ThingLogix, or if Contractor is unable to make the Deliverable operate as warranted within such 30-day period, then ThingLogix may terminate immediately the applicable SOW, and Contractor shall refund to ThingLogix all fees paid for such defective Services within 10 days of termination. The remedies set forth in this Section 6.2 shall be non-exclusive.
6.3 Warranty Disclaimer. EXCEPT FOR CONTRACTOR’S WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Ownership of Deliverables
7.1 Ownership of Deliverables; Assignment of Rights. To the fullest extent permitted by law, all Deliverables shall be the property of ThingLogix and shall be deemed to be a “work made for hire” (as defined in Section 101 of Title 17 of the United States Code). To the extent any Deliverable is (for any reason whatsoever) determined not to be “work made for hire,” Contractor hereby irrevocably and exclusively assigns, transfers and conveys to ThingLogix all right, title and interest (including all patent, copyright, trademark, trade secret and any other intellectual property right) in and to the Deliverable (without regard to whether any particular Deliverable has been accepted by ThingLogix). The “work made for hire” designation and assignments in this Section 7.1 shall not apply to any Pre- Existing Intellectual Property. Each reference to a “Deliverable” in this Section 7 includes such Deliverable and all related know- how, techniques, inventions, discoveries, improvements, specifications, designs, methods, devices, systems, reports, studies, computer software (in object or source code), programming and other documentation, flow charts, diagrams and all other information or tangible material of any nature whatsoever (in medium and in any stage of development or completion) made or created by Contractor (including any of its employees, contractors, agents and subcontractors) in connection with this Agreement or the applicable SOW.
7.2 Waiver of Rights. If Contractor has any rights to the Deliverable that cannot be assigned to ThingLogix, Contractor hereby unconditionally and irrevocably:
(a) waives the enforcement of such rights (including any moral rights, such as the right to be named as author, the right to modify, the right to prevent mutilation and the right to prevent commercial exploitation);
(b) waives and quitclaims to ThingLogix any and all claims and causes of action of any kind against ThingLogix, its subsidiaries, and its licensees (through multiple tiers) with respect to such rights, and agrees, at ThingLogix’s request and expense, to consent to and join in any action to enforce such rights; and
(c) grants to ThingLogix during the term of such rights, an exclusive (even as to Contractor), irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, under and to all of such rights to Deliverable.
7.3 Execution of Documents; Assistance. Contractor will sign any necessary documents and will otherwise assist ThingLogix, at ThingLogix’s expense, in obtaining patents, mask work registrations, copyright registrations and otherwise protecting ThingLogix’s ownership of such Deliverable and any and all related inventions and works of authorships in any country.
7.4 Attorney-in-Fact. In the event that ThingLogix is unable for any reason, after reasonable effort, to secure Contractor’s signature on any document needed in connection with the actions specified in this Section 7, Contractor hereby irrevocably designates and appoints ThingLogix and its duly authorized officers and agents as Contractor’s agent and attorney-in-fact, to act for and on its behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section 7 with the same legal force and effect as if executed by Contractor.
7.5 Pre-Existing Intellectual Property.
(a) Pre-Approval. Contractor shall not use any Pre-Existing Intellectual Property in connection with this Agreement unless Contractor (i) has specifically identified such Pre-Existing Intellectual Property in the applicable SOW and (ii) has the right to use such Pre-Existing Intellectual Property for ThingLogix (and ThingLogix’s licensees’) benefit and to issue the licenses set forth in this section.
(b) License. If Contractor incorporates any Pre-Existing Intellectual Property into a Deliverable or furnishes any Pre- Existing Intellectual Property in conjunction with a Deliverable, Contractor hereby grants ThingLogix a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license to: (i) make, have made, sell, use, execute, reproduce, modify, adapt, display, perform, distribute, make derivative works of, import, and disclose the Pre-Existing Intellectual Property or products and services using the Pre-Existing Intellectual Property in conjunction with the use of the Deliverable and (ii) authorize or sublicense others from time to time to do any or all of the foregoing.
In exchange for Contractor’s obligations under this Agreement, ThingLogix shall pay Contractor the fees set forth in the applicable SOW. All payments are due in U.S. Dollars within the later of 60 days of ThingLogix’s receipt of an undisputed invoice, and, if applicable (in cases where Contractor is performing Services on behalf of an ThingLogix customer), 10 days of receipt of payment of such Services from ThingLogix’s customer. Contractor shall not invoice ThingLogix until ThingLogix’s acceptance of the Services or Deliverables (as applicable) in accordance with the payment schedule set forth in the applicable SOW. ThingLogix shall not reimburse Contractor for any expenses unless such expenses are specified in the applicable SOW. When specified in the applicable SOW, ThingLogix will pay actual and reasonable, pre- approved travel and related expenses incurred by Contractor in performing the Services, but only in accordance with ThingLogix’s then-current travel and expense policies. Contractor acknowledges that this Section 8 sets forth the only compensation which Contractor is entitled to receive in exchange for the Services and that Contractor shall not be entitled to any other payments, reimbursements, royalties or consideration of any kind.
9. Term and Termination
This Agreement remains in effect until terminated in accordance with this Section 9. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter). In addition, either party may terminate this Agreement at any time when there is no SOW in effect upon 10 days advance written notice to the other party. ThingLogix may terminate this Agreement at any time for any reason and without warning. Should ThingLogix exercise this right, it shall pay Contractor up until the day of termination. All of the provisions of this Agreement shall survive any termination or expiration except Sections 2 (Services), 3 (No Subcontractor), 4 (Changes) and 8 (Payment)(except that Section 8 shall survive with respect to payments earned prior to termination).
10. Independent Contractor
Contractor shall be solely responsible and liable for any employment-related taxes, insurance premiums or other employment benefits respecting Contractor’s performance of the Services. Neither Contractor nor any of Contractor’s employees or subcontractors will be eligible for any benefits (including, without limitation, stock options, health insurance or retirement benefits) normally provided by ThingLogix to its employees. Contractor shall perform services on behalf of ThingLogix in the capacity of independent contractor, and not as an employee, partner, agent or joint venture partner. ThingLogix shall not be responsible for the payment of any duties or taxes imposed on the income or profits of Contractor. Neither party will make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so.
Contractor is solely responsible for maintaining such adequate health, automobile, workers’ compensation, unemployment compensation, disability, liability, and any other type of insurance required by law or as is common practice in Contractor’s business. Upon request, Contractor shall provide ThingLogix with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Contractor shall provide adequate coverage for any ThingLogix property under the care, custody or control of Contractor or Contractor’s personnel.
12. Compliance with Laws
Each party shall perform all of its obligations under this Agreement in compliance at all times with all foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection.
13. Limitation of Liability
EXCEPT FOR AN INDEMNIFICATION CLAIM, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THINGLOGIX’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES DUE TO BE PAID TO CONTRACTOR UNDER THIS AGREEMENT
14. Confidential Information
Other than in the performance of the Agreement, neither Contractor nor Contractor’s agents, employees, or subcontractors shall use or disclose to any person or entity any Confidential Information (as defined below) of ThingLogix (whether in written, oral, electronic or other form), which is obtained from ThingLogix or otherwise prepared or discovered either in the performance of this Agreement, through access to Systems (as defined below), or while on ThingLogix’s premises. “Confidential Information” shall include, without limitation, all Deliverables, all information designated by ThingLogix as confidential, all information or data concerning or related to ThingLogix’s products (including the discovery, invention, research, improvement, development, manufacture, or sale thereof), processes, or general business operations (including sales, costs, profits, pricing methods, organization, and employee and customer lists), and any information of the foregoing nature received from ThingLogix related to ThingLogix’s customers or clients, which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary. The provisions of this Section 14 relating to use and disclosure shall not apply to any information that: (i) is rightfully known to Contractor prior to disclosure by ThingLogix, (ii) is rightfully obtained by Contractor from any third party without restrictions on disclosure, (iii) is or becomes available to the public without restrictions; or (iv) is disclosed by Contractor with the prior written approval of ThingLogix. Contractor warrants and represents that each employee, agent, or subcontractor who performs work under this Agreement has been informed of the obligations contained herein and has agreed to be bound by them. This obligations set forth in this Section shall survive any expiration of termination of this Agreement.
15. Access to ThingLogix’s Systems and Software
15.1 Access to ThingLogix’s Systems. Access, if any, to ThingLogix’s computer, telecommunication or other information systems (including computers, networks, voice mail, etc.) or those of any ThingLogix client or customer (“Systems”) is granted solely to facilitate the business relationship described in this Agreement, and is limited to those specific Systems, time periods, and personnel designated by ThingLogix. Access is subject to business control and information protection policies as may be provided by ThingLogix. Any access to or use of any Systems except as expressly authorized is expressly prohibited. Without limiting the foregoing, Contractor warrants that it has adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Systems. Upon reasonable notice, ThingLogix may audit Contractor to verify Contractor’s compliance with these obligations.
15.2 Access to ThingLogix’s Software. Solely to the extent ThingLogix determines it is necessary for Contractor to have access to certain ThingLogix software or tools (“ThingLogix Software”) in order to perform the Services, subject to the terms and conditions of this Agreement, ThingLogix grants to Contractor a non-exclusive, non-transferable, non-sublicensable, royalty-free license, to use the ThingLogix Software solely for the performance of the Services. Contractor will not use any of the trade secrets, algorithms, inventions, or technology revealed or embodied by the ThingLogix Software except as necessary to perform the Services. No right is granted by this Agreement for the use of the ThingLogix Software directly or indirectly by others. Contractor may not sublicense or otherwise transfer, by contract, operation of law, or otherwise, any of the rights granted to Contractor herein. All rights not expressly licensed herein are reserved to ThingLogix and its suppliers.
Neither party shall publicize or disclose the existence or terms of this Agreement to any third party without the prior written consent of the other, except as may be required by law. In particular, no press releases shall be made without the mutual written consent of each party.
Contractor will keep and maintain complete and accurate records in connection with its performance of the Services and all fees charged to ThingLogix under this Agreement and will retain these records for at least 3 years after the amounts documented in these records become due. ThingLogix may audit such records during regular business hours upon reasonable advance notice and subject to reasonable confidentiality procedures not more than twice per year.
Contractor will defend, indemnify and hold harmless ThingLogix, its officers, directors, employees, sublicensees, customers and agents from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising from or relating to: (i) any breach or alleged breach of any representation, warranty or other provision of this Agreement by Contractor, and (ii) any infringement or alleged infringement by Contractor, the Services or any Deliverable of any third-party intellectual property rights or (iii) any personal injury or property damage caused by the negligence or willful misconduct of Contractor (a “Claim”). ThingLogix shall give Contractor written notice of any such Claim and ThingLogix has the right to participate in the defense of any such Claim at its expense. In no event shall Contractor settle any Claim without ThingLogix’a written consent (which consent shall not be unreasonably withheld). From the date of written notice from ThingLogix to Contractor of an such Claim, ThingLogix shall have the right to withhold from any payments due Contractor under this agreement the amount of any defense costs, plus additional reasonable amounts as security for Contractor’s obligations under this Section 18.
All rights and licenses granted to ThingLogix under or pursuant to this Agreement are, and shall otherwise be deemed to be, for purposes of section 365(n) of the United States Bankruptcy Code (the “Code”), licenses to rights in “intellectual property,” as defined under the Code. The parties hereto further agree that, in the event of the commencement of bankruptcy proceedings by or against Contractor under the Code, ThingLogix shall be entitled, at its option, to retain all of its rights under this Agreement pursuant to Code Section 365(n).
Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void. Notwithstanding the foregoing, ThingLogix may assign this Agreement to an entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or part of the voting securities or assets of ThingLogix upon written notice to Contractor. Any notice or consent under this Agreement will be in writing to the address specified below. Terms and conditions of this agreement are subject to change without prior notice and are effective upon any such update. For the duration of this agreement and for 36 months after, Contractor will not hire any persons employed by ThingLogix, whether or not such resource had direct interaction with Contractor under this Agreement. This restriction includes, but is not limited to any employee, subcontractor, or agent of ThingLogix. No provision of this Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of such courts. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. In the event that ThingLogix loans Contractor any equipment during the course of its engagement, Contractor shall be responsible for returning it in the same condition in which Contractor received it. Such equipment will be loaned as is with all faults. ThingLogix reserves the right to charge Contractor for any damage it finds, beyond the normal wear and tear.