Terms of Service (Consultant)
Last revised: March 2017
These Terms of Service (these “Terms”) are a contract between you (in your individual capacity as an independent consultant), on the one hand (“you”), and Abido Network, Inc., a California corporation on the other hand (collectively, the “Company”, “we” or “us”). You must read, agree with and accept all of the terms and conditions contained in these Terms in order to use our website located at www.abidonetwork.com (the “Network”). The Company may revise these Terms at any time. If any such amendment results in a material change to these Terms, as determined by the Company in its sole discretion, we will inform you of such changes via a notice on the Site or by sending you an email to the address you have registered with us. Any such changes shall be effective immediately, provided however, for existing account holders, such changes shall, unless otherwise stated, be effective thirty (30) days after posting. Continued use of the Network after the effective date of any revisions to these Terms constitutes your acceptance of the revised Terms.
YOU UNDERSTAND THAT BY SIGNING UP FOR AND USING THE NETWORK, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE NETWORK. IF YOU AGREE TO THESE TERMS ON BEHALF OF A LEGAL ENTITY: (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ANY REPRESENTATIVES IT ALLOWS TO ACCESS THE NETWORK OR TO PROVIDE SERVICES VIA THE NETWORK TO THESE TERMS; (B) SUCH ENTITY IS RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ANY OF ITS REPRESENTATIVES; AND (C) “YOU” AND “YOUR” AS USED HEREIN WILL REFER AND APPLY TO THAT ENTITY.
1. THE NETWORK
The Network provides a venue for you to meet and offer your professional services (“Services”) as an individual independent contractor or consulting firm (“Contractor”) to individuals or businesses who are in the market for such Services (“Clients”) for one or more projects (“Projects”). Under these Terms, the Company provides services to you in your capacity as a Contractor, including operating and providing the Network, curating Clients and Projects, and functioning as the payment processor for you and your Clients. Clients post Projects and invite Contractors to submit a bid. You, in turn, post your professional profile(s) and bid on Projects. If a Client accepts your bid, you may then draft and negotiate a contract, statement of work (SOW), consulting agreement, or other service or project agreement directly with such Client (“Service Contract”), though any such Service Contract you enter into with a Client must contain the required terms as further described in Section 1.6 below. The Company reserves the right in all cases and with respect to all Projects to select the set of bids to forward to the applicable Client.
The Network is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. In order to create an account, you must provide us with your legal or business name, contact information, and profile information regarding your professional qualifications and the Services you will offer to provide via the Network. In addition, by creating an account, you represent and warrant that you are not (a) a citizen or resident of a country in which use or participation in the Network is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation. In addition, you confirm that you are not prohibited or limited in any way from acting as a Contractor on the Network by any contract (e.g., employment, consulting, confidentiality, or non-disclosure agreements), your current employer’s policies or codes of conduct if you are employed, or any similar policies or obligations that limit your conduct in any way. Further, to the extent your ability to consult is limited in any way, you confirm that you have obtained all necessary consents or waivers (e.g., the consent of your employer, any company or organization for which you have consulted, or any affiliated academic or government organization) to offer your Services as a Contractor on the Network. Notwithstanding the foregoing, the Company may determine your eligibility to create an account on the Network in its sole discretion.
1.3 Your Account
The Company reserves the right to validate your identity and account information at any time. You are responsible for ensuring and maintaining the secrecy and security of your account password, and are responsible for any activities that occur on the Network under your account.
1.4 Independent Contractor Status
As a Contractor, you acknowledge and agree that your relationship to the Company is that of an independent contractor and vendor rendering professional services, and that:
you have no authority to act on behalf of the Company;
the Company does not, in any way, supervise, direct, or control your performance of Services; and
the Company is not a party to any contract you may enter into with Clients and will not have any liability or obligations whatsoever under any such contracts. Further, consistent with your status as an independent contractor/vendor of the Company, neither you nor any of your principals, employees or agents (if applicable) shall be entitled to participate in or receive any compensation or benefits from the Company, that the Company provides or makes available to its employees pursuant to legal requirements or otherwise including, without limitation, worker’s compensation insurance, travel accident insurance, medical/dental insurance, life insurance, short- term and/or state disability insurance or benefits, long-term disability insurance, holiday pay, sick pay, paid vacation, bonuses, salary continuation pay, leaves of absence (paid or unpaid), pension plan benefits, retirement savings plan benefits or lease vehicle benefits. You are solely responsible for:
compensating any of your principals, employees and agents who provide any services to the Company on your behalf, including, without limitation, wages and employee benefits;
reporting to all applicable government agencies all amount paid to such principals, employees and agents;
withholding and payment of all payroll taxes including, without limitation, unemployment insurance, Federal Insurance Contributions Act and Federal Unemployment Tax act;
compliance with all applicable laws with respect to your principals, employees and agents including, without limitation, those requiring and regulating workers’ compensation insurance, reporting of independent contractors, issuance of Forms W-2 and 1099, the Immigration Reform Control Act, and equal employment opportunity laws.
1.5 No Conflict
You hereby represent and warrant that you are not party to any written or oral agreement or other understanding that would restrict or prevent you from performing Services for any Client or with respect to any Project. You hereby represent and warrant that you will not incorporate into any Work Product (as defined in Schedule A) produced under any Service Contract any confidential information or trade secrets of any other person or entity, or any material in which any other person or entity asserts any copyright, patent right, trademark, or other proprietary or intellectual property right.
1.6 Service Contract Required Terms
Unless otherwise agreed to in a writing signed by the Company, each Service Contract must contain terms and conditions substantially similar to and at least as protective of the Company as the terms and conditions set forth in Schedule A attached hereto, provided that such terms and conditions do not constitute legal advice from the Company, and you and your Clients should consult independent counsel in drafting and negotiating any Service Contracts. Once you have executed a Service Contract with a Client, you must provide a copy (redacted if necessary to protect any particularly sensitive information) to the Company for the applicable Project so that the Company can verify your compliance with Schedule A.
For a period of twelve (12) months from the time you are identified by a Client through the Network (“Exclusivity Period”), you will use the Network as your exclusive method to bid for Services and receive all payments for Services, directly or indirectly, with that Client or arising out of your relationship with that Client. Upon expiration of Exclusivity Period, you are free to directly deal with the applicable Client outside of the Network and independently from these Terms.
1.8 Third Party Websites
The Network may include links to third party websites. The Company has no control over, is not responsible for and does not endorse any such sites, and the Company will have no liability for any damages or losses you incur by visiting or using such third party websites.
1.9 Code of Conduct
By accessing and using the Network, you agree to abide by the Abido Code of Conduct (“Code of Conduct”), which is incorporated herein by reference.
2. LICENSE AND RESTRICTIONS; OWNERSHIP
2.1 License Grant
Subject to your compliance with these Terms, the Company hereby grants you a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to access and use the Network for your internal business purposes only, and subject to the limitations set forth below. The Company reserves any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to access and use the Network comprise a limited license and do not constitute the sale of any software program or other intellectual property.
You agree that:
you will not use the Network if you are not fully able and legally competent to agree to these Terms;
you will only use the Network in full compliance with all applicable laws and these Terms; and
you will not use the Network for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct. Further, except as specifically permitted herein or approved in advance in writing by the Company, you agree that you will not directly or indirectly:
distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Network in any unauthorized manner;
use the Network in any service bureau arrangement;
copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Network or any part thereof in any form or manner or by any means;
harvest or scrape any content or data from the Network;
remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Network;
decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Network or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);
circumvent any functionality that controls access to or otherwise protects the Network; or
permit any third party to engage in any of the foregoing. Any attempt to do any of the foregoing is a material breach of these Terms and a violation of the rights of the Company and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
2.3 Network Ownership
The Network’s “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials are protected under intellectual property laws. You acknowledge and agree that the Company and/or its licensors own all right, title and interest in and to the Network (including all intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Any and all: (a) suggestions for correction, change and modification to the Network and other feedback, information and reports your provide to the Company (collectively “Feedback”); and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by the Company or otherwise relating to the Network (collectively, “Revisions”), are and will remain the property of the Company. All Feedback and Revisions become the sole and exclusive property of the Company and the Company may use and disclose Feedback and Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest that you may have in and to any and all Feedback and Revisions.
3. FEES AND PAYMENT
The Company is free to join, and there are no charges to submit Project bids. Instead, the Company collects fees for each Project that is completed on the Network. When you submit a bid for a Project, the Company will display the amount of any fees that the Company will deduct from the bid amount prior to disbursing payment to you. All fees are non-cancelable non- refundable. If you have further questions about our fees, please contact us at email@example.com.
The Company functions as the payment processor for amounts Clients pay for your Services on the Network, and the Company will automatically disburse funds to you in accordance with the payment terms under the applicable Service Contract. In cases of fraud, abuse or violation of these Terms, the Company reserves the right to setoff against any amounts due to you via the Network any damages or costs the Company incurs as a result of such fraud, abuse or violation.
Contractors are required to receive all payments relating to, or in any way connected with, a Project through the Network. During the Exclusivity Period, you shall not encourage, solicit or accept complete or partial payment for Services outside of the Network, or otherwise circumvent the Company’s role as payment processor or the Network’s payment methods, and any violation of the foregoing restrictions is a material breach of these Terms. By way of illustration and not in limitation of the foregoing, within the Exclusivity Period you will not: (a) submit proposals to, deliver services to, invoice or receive payments or other consideration from any Clients except via the Network; or (b) invoice or report on the Network an invoice amount lower than that actually agreed between you and a Client through the Network. YOU WILL NOTIFY THE COMPANY IMMEDIATELY IF A CLIENT CONTACTS YOU OR SUGGESTS MAKING PAYMENTS OUTSIDE OF THE NETWORK WITHIN THE EXCLUSIVITY PERIOD. If you become aware of a breach or potential breach of the disintermediation policy in this Section 3.3, please report the issue to the Company by sending an email message to firstname.lastname@example.org.
3.4 Tax Reporting
The Company is a third party processor, and pursuant to Section 6050W of the Internal Revenue Code, the Company will provide a 1099-K form to the Internal Revenue Service for any Contractor based in the United States who is paid over $20,000 through the Network and participates in over 200 separate Projects in a single calendar year. Otherwise, the Company will have no responsibility for determining the necessity of or for issuing any tax forms, or for determining, remitting, or withholding any taxes applicable to Contractor Fees and you will be solely responsible for determining whether you are required by applicable law to file any tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the amounts the Company remits to you for Services, as well as filing any such tax forms and remitting any such taxes or charges to the appropriate authorities.
As a Contractor, you agree not to disclose or to attempt to use or personally benefit from (financially or otherwise) any Restricted Information (as defined below) that is disclosed to or known by you because of your activities on the Network until such time as the Restricted Information has become publicly available through no action of your own, except to the extent required by law or as expressly permitted by the Company or a Client for the purpose of facilitating a particular Project. The following should be considered strictly confidential: (a) the identity of Clients; (b) information about Projects; (c) information about any actual or potential business, investment or trading decisions, or transactions of any Client; or (d) any other nonpublic or proprietary information of the Company or its Clients (collectively, “Restricted Information”). If you are compelled by order of a court or other governmental or legal body (or have notice that such an order is being sought) to divulge any Restricted Information to anyone, you will promptly notify the Company, unless prohibited from doing so by the express terms of a government subpoena or court order, and will cooperate fully with the Company in protecting such information to the extent possible under applicable law. Upon request by the Company or the applicable Client, you agree to return or destroy all Restricted Information in your possession. Notwithstanding the foregoing, if and only to the extent necessary, you may disclose the general topic and Client description to secure any required third-party consent to your activities on the Network or in a Project prior to submitting a bid for that Project.
5. WARRANTY DISCLAIMER
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, NETWORK OR ANY ACTIVITIES OR ITEMS RELATED TO THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS OR LOSS OF DATA, PRODUCTION OR PROFIT. THE TOTAL AGGREGATE LIABILITY OF THE COMPANY TO YOU FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE NETWORK WILL NOT EXCEED THE AMOUNTS REMITTED TO YOU BY THE COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
You agree to indemnify and hold harmless the Company and its affiliates, officers, employees, representatives and agents (each, an“Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to:
your use of the Network;
any Services you provide;
Your Content; and
your violation of these Terms.
Subject to your obligation to complete Services for which you are engaged, you have the right to cancel your account at any time upon notice to the Company, and the Company has the unlimited right to terminate or limit your account and/or access to the Network at any time and for any reason, including, without limitation, for violation of these Terms and/or the Code of Conduct. For the avoidance of doubt, canceling your account does not relieve you of your obligations with respect to the Exclusivity Period set forth in Section 1.7.
Sections 1.5, 1.6, 3.3, 4, 5, 6, 7, 8.2, 9, and 10 of these Terms will survive any termination thereof.
9. DISPUTE RESOLUTION
9.1 Informal Process First
You agree that in the event of any dispute between you and the Company, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to arbitration under this Agreement.
9.2 Binding Arbitration
Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 9.1, except for disputes relating to the infringement of the Company’s intellectual property rights or the access or use of the Network in violation of these Terms (a “Claim”), will be resolved by binding arbitration, rather than in court, provided that you may assert Claims in small claims court located in San Diego County, California if your Claims qualify.
9.3 No Judge or Jury
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would.
9.4 Arbitrator and Rules
The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes. These rules can be found on the AAA website at www.adr.org.
9.5 Starting an Arbitration
To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: email@example.com. The Company will send any notice of dispute to you at the contact information we have for you.
9.6 Format of Proceedings
The arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
9.7 Individual Basis; Jury Trial Waiver
To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve a Claim will be conducted only in the respective party’s individual capacity and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action (“Class Action”). If for any reason a Claim proceeds in court rather than in arbitration, you and the Company each waive any right to a jury trial. You and the Company expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
9.8 Limitation Period
In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 9) be instituted more than six (6) months after the cause of action arose.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and the Company each agree to the exclusive jurisdiction of the Federal and State courts located in San Diego, California, and you and the Company each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
10.1 Entire Agreement
You may not assign these Terms or any of your rights or obligations hereunder without the Company’s prior written consent. The Company may freely assign these Terms. Any attempted assignment or transfer in violation of this Section 10.1 will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the parties.
10.2 Governing Law
These Terms and the Schedules attached hereto set forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
10.3 Notices; Consent to Electronic Notice
You consent to the use of electronic means to deliver any notices pursuant to these Terms. Notices will be given:
by the Company via email (in each case to the email address that you provide when registering your account);
a reasonably prominent posting on the Network; or
by you via email to firstname.lastname@example.org.
10.4 No Waiver
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
If and to the extent any provision of these Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties.
1. SERVICE CONTRACT REQUIRED TERMS
Contractor will perform the Services in a professional and workmanlike manner and will timely deliver any agreed-upon Work Product.
1.2 Client Payments and Billing
Client will pay the Company the fees for the Project in accordance with the Agreement.
Client may terminate a Service Contract at any time but may not recover any payments already made to the Company. Contractor may terminate the Service Contract at any time if Client has not yet made any payment for Contractor’s Services. If Client has made a payment, Contractor may terminate only with Clients prior written consent.
1.4 Client Materials
Client hereby grants Contractor a limited, non-exclusive, revocable (at any time, at Client's sole discretion) license to use instructions, materials, and information that Client provides to Contractor in connection with a particular Service Contract, and any intellectual property rights contained therein (collectively, the “Client Materials”) solely for Contractor’s performance of the Services. Client reserves all other rights and interest in and to the Client Materials. Upon completion or termination of the Service Contract, or upon written request by Client, Contractor will immediately return all Client Materials to Client and further agrees to purge all copies of Client Materials and Work Product contained in or on Contractor’s premises, systems or any other equipment otherwise under Contractor’s control. Within ten (10) days of Client's request, Contractor agrees to provide written certification to Client that all Client Materials have been returned or purged.
1.5 Work Product
Contractor will make full and prompt disclosure to Client of all inventions, discoveries, designs, developments, methods, modifications, improvements, ideas, products, processes, algorithms, databases, computer programs, formulae, techniques, know-how, trade secrets, graphics or images, and audio or visual works and other works of authorship (collectively, “Developments”), whether or not patentable or copyrightable, that are created, made, conceived or reduced to practice by Contractor for Client during the term of the Service Contract that results from the Services (“Work Product”). Contractor acknowledges that all work performed by Contractor is on a “work for hire” basis, and Contractor hereby assigns and transfers and, to the extent any such assignment cannot be made at present, will assign and transfer, to Client and its successors and assigns all Contractor’s right, title and interest in all Work Product, and all related patents, patent applications, trademarks and trademark applications, service marks and service mark applications, copyrights and copyright applications, and other intellectual property rights in all countries and territories worldwide and under any international conventions. Contractor will cooperate fully with Client, both during and after the term of the Service Contract, with respect to the procurement, maintenance and enforcement of intellectual property rights in, to or that claim or cover the Work Product. Contractor will sign, both during and after the term of the Service Contract, all papers, including without limitation copyright applications, patent applications, declarations, oaths, assignments of priority rights, and powers of attorney, which Client may deem necessary or desirable in order to protect its rights and interests in any Work Product. If Client is unable, after reasonable effort, to secure Contractor’s signature on any such papers, Contractor hereby irrevocably designates and appoints each current and future officer of Client as Contractor’s agent and attorney-in-fact to execute any such papers on Contractor’s behalf, and to take any and all actions as Contractor may deem necessary or desirable in order to protect its rights and interests in any Work Product.
1.6 Pre-existing Developments in Work Product
If Contractor incorporates any Development that Contractor has, alone or jointly with others, conceived, developed or reduced to practice prior to the date of the Service Contract that Contractor considers to be Contractor’s property or the property of third parties and that Contractor wishes to have excluded from the scope of the Service Contract (collectively, “Pre-Existing Developments”) into the Work Product, Contractor hereby grants Client and its affiliates a perpetual, irrevocable, paid-up, royalty-free, nonexclusive, worldwide license (with the full right to sublicense directly, or indirectly through multiple tiers) to: (a) copy, distribute, display, perform, and create derivative works of the Pre-Existing Developments, in whole or in part; and (b) use or otherwise practice the Pre-Existing Developments, in whole or in part, including without limitation, the right and license to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Pre-Existing Developments and the right to practice any method covered by or included in the Pre-Existing Developments.
1.7 Confidential Information
Confidentiality. “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by a Client or a Contractor (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to a Contractor (in the case of Client as the Disclosing Party) or a Client (in the case of Contractor as the Disclosing Party) (the “Receiving Party”) or which would be apparent to a reasonable person, familiar with Disclosing Party’s business and the industry in which each operates, to be of a confidential or proprietary nature the maintenance of which is important to the Disclosing Party; provided, however, that reports and/or information related to or regarding the Services or Work Product, or a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in the following sentence. Information and data will not be deemed Confidential Information hereunder if such information:
is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party;
becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party;
becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or
is independently developed by the Receiving Party.
Use of Confidential Information. The Receiving Party acknowledges that it will have access to the Disclosing Party’s Confidential Information. The Receiving Party agrees that it will not:
use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under the Service Contract; or
disclose any such Confidential Information to any party, other than furnishing such Confidential Information to its (A) employees who are required to have access to the Confidential Information in connection with the exercise of Receiving Party’s rights and performance of its obligations a Services Contract; and (B) professional advisers (e.g., lawyers and accountants); provided, however, that any and all such employees and advisers are bound by agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in accordance with the terms and conditions of this section. The Receiving Party agrees that it will not allow any unauthorized person access to Disclosing Party’s Confidential Information, and that Receiving Party will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information. In the event that the Receiving Party is required by law to make any disclosure of any of Disclosing Party’s Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
Additional Restrictions. Contractor will not disclose to Client any information that constitutes material, non-public information about any third party, information that Contractor has a duty or obligation to keep confidential (whether by agreement, law, rule, regulation, fiduciary duty, or other similar obligation or restriction), information the disclosure of which would be in violation of securities laws and/or information that is proprietary to a third party (including past or present employers or companies for which Contractor has consulted) and not owned solely by Contractor.
Return. If and when Confidential Information is no longer needed for the performance of Services for the relevant Service Contract, or at Client’s or Contractor’s written request (which may be made at any time at Client’s or Contractor’s sole discretion), Client or Contractor (as the case may be) will promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Contractor, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this section within ten (10) days after the receipt of Disclosing Party’s written request to certify.
Publication. Without limiting the confidentiality obligations set forth in this section, Client and Contractor will not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a Services Contract or except as the Disclosing Party will permit.
1.8 Worker Classification
Client agrees that:
Client does not in any way supervise, direct, or control Contractor’s Services;
that Client does not, in any way, supervise, direct, or control Contractor’s work hours and location of work; and
Client does not provide Contractor with training or equipment for any Project. Notwithstanding the foregoing, Client assumes all liability for proper classification of Contractors as independent contractors or employees based on applicable legal guidelines. A Service Contract does not create a partnership or agency relationship between Client and Contractor. Contractor does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Client. Client and Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Contractor’s performance of the Services. Client may not require an exclusive relationship between Client and Contractor. Contractor, as an independent contractor, is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client.
Client will be responsible for providing Contractor with necessary access to Client information systems required for the Project.
1.9 Audit Rights
Client and Contractor each will: (a) create and maintain records to document satisfaction of their obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws; and (b) provide copies of such records to the Company upon request. The Company, or the Companyʼs advisors or agents, will have the right, but not the obligation, to routinely, but no more frequently than annually, audit Contractor’s operations and records to confirm compliance. Nothing in this provision should be construed as providing the Company with the right or obligation to supervise or monitor the actual Services performed by Contractor.
1.10 Third Party Beneficiary
Each Service Contract shall expressly name the Company as an intended third party beneficiary. Clients and Contractors understand and agree that the Company is an intended third party beneficiary of each Service Contract and that the Company has the right to enforce all rights and obligations under the Service Contract on its own behalf.
1.11 Side Agreements
Clients and Contractors may enter into any supplemental or other written agreements (“Side Agreements”) that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions required by this Schedule A, however, will govern and supersede any term or condition in a Side Agreement that purports to expand the Company’s obligations or restrict the Company’s rights under this Agreement.
1.12 Entire Agreement
The terms and conditions set forth in this Schedule A, together with any additional or different terms expressly agreed to by Client and Contractor (in a Side Agreement or otherwise), will constitute the entire agreement and understanding of Client and Contractor with respect to each Service Contract and will cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.