EXHIBIT 10(c) Independent Contractor Agreement with Xxxxxxx Xxxxx
INDEPENDENT CONTRACTOR AGREEMENT
This Agreement, made this 1st day of April, 2003 between,
Xxxxxxx Xxxxx, Inc. hereinafter referred to as "Company", located
at 0000 X. Xxxxx Xx. Xxxxxxxxxx, XX and Xxxxxxx Xxxxx,
hereinafter referred to as "Independent Contractor", collectively
referred to as the "Parties".
RECITALS
Independent Contractor is engaged in providing computer
consulting business services, with their principal place of
business at (address 0 Xxxxxxxx Xx.; Madison, WI. Employer Tax
I.D. Number ____________. Business License Number ____________.
Independent Contractor has complied with all Federal, State and
local laws regarding business permits, sales permits, licenses,
reporting requirements, tax withholding requirements, and other
legal requirements of any kind that may be required to carry out
said business and the Scope of Work which is to be performed as
an Independent Contractor pursuant to this Agreement. Independent
Contractor is or remains open to conducting similar tasks or
activities for clients other than the Company and holds
themselves out to the public to be a separate business entity.
Company desires to engage and contract for the services of
the independent Contractor to perform certain tasks as set forth
below. Independent Contractor desires to enter into this
Agreement and perform as an independent contractor for the
company and is willing to do so on the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the above recitals and
the mutual promises and conditions contained in this Agreement,
the Parties agree as follows:
TERMS
1. This Agreement shall be effective commencing April 1, 2003,
and shall continue until terminated at the completion of the
Scope of Work which shall occur no later than - N/A - or by
either party as otherwise provided herein.
STATUS OF INDEPENDENT CONTRACTOR
2. This Agreement does not constitute a hiring by either party.
It is the parties intentions that Independent Contractor shall
have an independent contractor status and not be an employee for
any purposes, including but not limited to, the application of
the Federal Insurance Contribution Act, the Social Security Act,
the Federal Unemployment Tax Act, the provisions of the Internal
Revenue Code, the State Revenue and Taxation Code relating to
income tax withholding at the source of income, the Workers'
Compensation Insurance Code 401(k) and other benefit payments and
third party liability claims. Independent Contractor shall retain
sole and absolute discretion in the manner and means of carrying
out their activities and responsibilities in this Agreement. This
Agreement shall not be considered or construed to be a
partnership or joint venture, and the Company shall not be liable
for any obligations incurred by Independent Contractor unless
specifically authorized in writing. Independent Contractor shall
not act as an agent of the Company, ostensibly or otherwise, nor
bind the Company in any manner, unless specifically authorized to
do so in writing.
TASKS, DUTIES, AND SCOPE OF WORK
3. Independent Contractor agrees to devote as much time,
attention, and energy as necessary to complete or achieve the
following: Handle all programming tasks associated with Xxxxxxx
Xxxxx, Inc.'s web properties. The above to be referred to in this
Agreement as the "Scope of Work." It is expected that the Scope
of Work will completed as agreed upon with Xxxxxxx Xxxxx
Management.
4. Independent Contractor shall additionally perform any and
all tasks and duties associated with the Scope of Work set forth
above, including but not limited to, work being performed already
or related change orders. Independent Contractor shall not be
entitled to engage in any activities which are not expressly set
forth by this Agreement.
5. The books and records related to the scope of work set forth
in this Agreement shall be maintained by the Independent
Contractor at the Independent Contractor's principal place of
business and open to inspection by Company during regular working
hours. Documents to which Company will be entitled to inspect
include, but are not limited to, any and all contact documents,
change orders/purchase orders and work authorized by Independent
Contractor or Company on existing or potential projects related
to this Agreement.
6. Independent Contractor shall be responsible to the
management and directors of Company but Independent Contractor
will not be required to follow or establish a regular or daily
work schedule. Supply all necessary equipment, materials and
supplies. Independent Contractor will not rely on the equipment
or offices of Company for completion of tasks and duties set
forth pursuant to this Agreement. Any advice given independent
Contractors regarding the scope of work shall be considered a
suggestion only, not an instruction. Company retains the right to
inspect, stop, or alter the work of Independent Contractor to
assure its conformity with this Agreement.
COMPENSATION
7. Independent Contractor shall be entitled to compensation for
performing those tasks and duties related to the Scope of Work as
follows: As agreed upon with Xxxxxxx Xxxxx Management prior to
start of each job.
8. Such compensation shall become due and payable to
Independent Contractor in the following time, place, and manner:
See above (# 7)
NOTICE CONCERNING WITHHOLDING OF TAXES
9. Independent Contractor recognizes and understands that it
will receive an IRS 1099 statement and related tax statements,
and will be required to file corporate and/or individual tax
returns and to pay taxes in accordance with all provisions of
applicable Federal and State law. Independent Contractor hereby
promises and agrees to indemnify the Company for any damages or
expenses, including attorney fees, and legal expenses, incurred
by the Company as a result of independent contractor's failure to
make such required payments.
AGREEMENT TO WAIVER RIGHTS TO BENEFITS
10. Independent Contractor hereby waives and foregoes the right
to receive any benefits given by Company to its regular
employees, including, but not limited to, health benefits,
vacation and sick leave benefits, profit sharing plans, such as
401(k) plans. This waiver is applicable to all non-salary
benefits which might otherwise be found to accrue to the
Independent Contractor by virtue of their services to Company,
and is effective for the entire duration of Independent
Contractor's agreement with Company. This waiver is effective
independently of Independent Contractor's employment status as
adjudged for taxation purposes or for any other purpose.
11. Neither this Agreement, nor any duties or obligations under
this Agreement may be assigned by either party without the
consent of the other.
TERMINATION
12. This Agreement may be terminated prior to the completion or
achievement of the Scope of Work by either party giving 30 days
written notice. Such termination shall not prejudice any other
remedy to which the terminating party may be entitled, either by
law, in equity, or under this Agreement.
NON-DISCLOSURE OF TRADE SECRET, CUSTOMER LISTS AND OTHER
PROPRIETARY INFORMATION
13. Independent Contractor agrees not to disclose or
communicate, in any manner, either during or after Independent
Contractor's agreement with Company, information about Company
its operations, clientele, or any other information, that relate
to the business of Company including, but not limited to, the
names of its customers, its marketing strategies, operations, or
any other information of any kind which would be deemed
confidential, a trade secret, a customer list, or other form of
proprietary information of Company. Independent Contractor
acknowledges that the above information is material and
confidential and that it affects the profitability of Company.
Independent Contractor understands that any breach of this
provision, or that of any other Confidentiality and Non-
Disclosure Agreement is a material breach of this Agreement. To
the extent Independent Contractor feels they need to disclose
confidential information, they may do so only after obtaining
written authorization from (an officer) of the Company.
NON-SOLICITATION
14. Independent Contractors shall not, during the Agreement and
for a period of one year immediately following termination of
this Agreement, either directly or indirectly, call on, solicit,
or take away, or attempt to call on, solicit, or take away, any
of the customers or clients of the Company on whom Independent
Contractor called or became acquainted with during the terms of
this Agreement either for their own benefit, or for the benefit
of any other person, firm, corporation or organization.
NON-RECRUIT
15. Independent Contractor shall not, during this Agreement and
for a period of one year immediately following termination of
this agreement, either directly or indirectly, recruit any of
Company employees for the purpose of any outside business.
RETURN OF PROPERTY
16. On termination of this Agreement, or whenever requested by
the parties, each party shall immediately deliver to the other
party all property in its possession, or under its care and
control, belonging to the other party to them, including but not
limited to, proprietary information, customer lists, trade
secrets, intellectual property, computers, equipment, tools,
documents, plans, recordings, software, and all related records
or accounting ledgers.
EXPENSE ACCOUNTS
17. Independent Contractor and the Company agree to maintain
separate accounts in regards to all expenses related to
performing the Scope of' Work. Independent Contractor is solely
responsible for payment of expenses incurred pursuant to this
Agreement unless provided otherwise in writing by [an officer] of
the company. Independent Contractor agrees to execute and deliver
any agreements and documents prepared by Company and to do all
other lawful acts required to establish document and protect such
rights.
WORKS FOR HIRE
18. Independent Contractor agrees that the Scope of Work, all
tasks, duties, results, inventions and intellectual property
developed or performed pursuant to this Agreement are considered
"works for hire" and that the results of said work is by virtue
of this Agreement assigned to the Company and shall be the sole
property of Company for all purposes, including, but not limited
to, copyright, trademark, service xxxx, patent, and trade secret
laws.
LEGAL COMPLIANCE
19. Independent Contractor is encouraged to treat all company
employees, customers, clients, business partners and other
affiliates with respect and responsibility. Independent
Contractor is required to comply with all laws, ethical codes and
company policies, procedures, rules or regulations, including
those forbidding sex harassment, discrimination, and unfair
business practices.
LICENSING, WORKERS' COMPERSATION AND GENERAL LIABILITY INSURANCE
20. Independent Contractor agrees to immediately supply the
Company with proof of any licensing status required to perform
the Scope of Work pursuant to this Agreement, Workers'
Compensation Coverage where required by law and General Liability
Insurance, upon request of the Company.
PERSONS HIRED BY INDEPENDENT CONRACTOR
21. All persons hired by Independent Contractor to assist in
performing the tasks and duties necessary to complete the Scope
of Work shall be the employees of Independent Contractor unless
specifically indicated otherwise in an agreement signed by all
parties. Independent Contractor shall immediately provide proof
of Workers' Compensation insurance and General Liability
insurance covering said employees, upon request of the Company.
NOTICES
22. Any notice to be given hereunder by any party to the other
may be affected either by personal delivery in writing or by
mail, registered or certified, postage pre-paid with return
receipt requested. Mailed notices shall be addressed to the
parties at the addresses appearing in the introductory paragraphs
of this Agreement, but each xxxxx may change their address by
written notice in accordance with this paragraph. Notices
delivered personally shall be deemed communicated as of actual
receipt; mailed notices shall be deemed communicated as of five
(5) days after mailing. Independent Contractor agrees to keep
Company current as to their business and mailing addresses, as
well as telephone, facsimile, e-mail and pager numbers.
ATTORNEY'S FEES AND COSTS
23. If any action at law or in equity is necessary to enforce or
interpret the terms of the Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary
disbursements incurred both before or after judgment in addition
to any other relief to which such party may be entitled.
MEDI ATION AND ARBITRATION
24. Any controversy between the parties to this Agreement
involving the construction or application of any of the terms,
provisions, or conditions of this Agreement, shall on written
request of either party served on the other, be submitted first
to mediation and then if still unresolved to binding arbitration.
Said mediation or binding arbitration shall comply with and be
governed by the provisions of the American Arbitration
Association unless the Parties stipulate otherwise. The parties
shall each appoint one person to hear and determine the dispute
and, if they are unable to agree, then the two persons so chosen
shall select a third impartial arbitrator whose decision shall be
final and conclusive upon both parties. The attorneys fees and
costs of arbitration shall be borne by the losing party, as set
forth in paragraph 23 above, unless the Parties stipulate
otherwise, or in such proportions as the arbitrator shall decide.
INDEMNIFICATION
25. Independent Contractor shall defend, indemnity, hold
harmless, and insure Company from any and all damages expenses or
liability resulting from or arising out of, any negligence or
misconduct on Independent Contract's part, or from any breach or
default of this Agreement which is caused or occasioned by the
acts of Independent Contractor. Independent Contractors shall
insure that its employees and affiliates take all actions
necessary to comply with the terms and conditions set forth in
this Agreement. Independent Contractor shall name Company as an
additional insured on all related insurance policies including
workers compensation, and general liability.
CONTAINMENT OF ENTIRE AGREEMENT
26. This Agreement is an Independent document and supersedes any
and all other Agreements, either oral or in writing between the
parties hereto, except any Confidentiality, Trade Secret, Non-
Compete, Non-Disclosure, Indemnification or Arbitration
Agreement. This Agreement contains all of the covenants and
Agreements between the parties, except for those set forth in any
Confidentiality, Trade Secret, Non-Compete, Non-Disclosure, or
Arbitration Agreement.
REPRESENTATION
27. Each party of this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or
otherwise, have been made by any party hereto, or anyone acting
on behalf of any xxxxx hereto, which are not embodied herein, and
that no other agreement, statement or promise not contained in
this Agreement shall be valid or binding. Any modification of
this Agreement shall be effective only if it is in writing signed
and dated by all parties hereto.
PARTIAL INVALIDITY
28. If any provision of this Agreement is held by a Court of
competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force
and effect without being impaired or invalidated in any way.
GOVERNING LAW
29. This Agreement shall be governed by, and construed under,
the laws of the State of Arizona.
30. Jurisdiction and venue for all purposes shall be in the
County of Phoenix, State of Arizona.
Executed this day 1st day of April, 2003, at Madison, WI.
By: /s/
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Independent Contractor
By: /s/
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Company
