EXHIBIT 10.36
CONTRACTOR AGREEMENT
Business Terms
THIS CONTRACTOR AGREEMENT, consisting of the Business Terms, Standard
Conditions, and any attachments thereto ("Agreement") is made by and between
Xxxxxxx Xxxxxx & Co., Inc., a California corporation having its principal place
of business at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 ("Schwab"), and
the party identified below ("Contractor") .
Capitalized terms not defined in the Business Terms are defined in the
Standard Conditions. Schwab and Contractor agree to the following:
Contractor Information:
Contractor: Razorfish, Inc
Responsible Person: Xxxxx Xxxxx
Address: 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
Email Address xxxxx@razorfish. com
Employer Tax I.D. Number: 00-0000000
Description Of Services: (USE ATTACHMENTS IF NECESSARY )
The description of services is provided in Exhibit A, which is incorporated
herein and made a part of this Agreement
DESCRIPTION OF DELIVERABLES: (USE ATTACHMENTS IF NECESSARY)
The description of deliverables is provided in Exhibit A.
PAYMENTS:
1. Contract Sum:
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In consideration for the completion of the work set forth in Exhibit A,
Schwab agrees to pay Contractor the amounts described in Exhibit A.
Payment Schedule: Schwab will pay Contractor according to the payment schedule
----------------
in
Exhibit A:
The parties agree to the terms and conditions of this Agreement, which
includes the Business Terms, Standard Conditions, and any exhibits or
attachments thereto.
Xxxxxxx Xxxxxx & Co., Inc. Razorfish, Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
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Its: Its: President
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Date: 12/19/97 Date: 12/16/97
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STANDARD CONDITIONS
Capitalized terms not defined in the Standard Conditions are defined in the
Business Terms.
1. Term of Contract. This Agreement will commence as of the day it is
executed by both parties and will remain in effect until terminated in
accordance with its provisions.
2. Independent Contractor Status. It is the express intent of the parties
that Contractor is an independent contractor and not an employee, agent,
joint venturer or partner of Schwab. Nothing in this Agreement shall be
interpreted or construed as creating or establishing the relationship of
employer and employee between Schwab and Contractor. Both parties
acknowledge that Contractor is not an employee for state or federal tax
purposes. Contractor shall retain the right to perform services for others
during the term of this Agreement.
3. Services to be Performed by Contractor. Contractor shall personally
undertake and perform the services set forth in the Business Terms in
accordance with the schedule, if any, set forth in the Business Terms (the
"Services"). No performance or partial performance of Services shall be
deemed complete unless such services comply with the warranties set forth
in Paragraphs 9 and 10 of these Standard Conditions.
4. Time. Time is of the essence with regard to the performance of the
Services. Contractor shall indemnify Schwab against all damages suffered by
Schwab because of Contractor's delay, except this indemnity does not extend
to any damages suffered by Schwab as a result of any delay caused by
Schwab.
5. Payment for Services. In consideration for the timely and fully
satisfactory performance of the Services, Schwab agrees to pay Contractor
the Contract Sum specified in Exhibit A in the manner specified in Exhibit
A. Any Milestone Payments specified in Exhibit A shall be credited against
and deducted from the Contract Sum.
6. Responsibility for Costs. Except for any Reimbursable Expenses specified
in Exhibit A, Contractor shall be responsible for all costs and expenses
incidental to the performance of Services for Schwab, including but not
limited to, all costs of equipment provided by Contractor, all fees, fines,
licenses, bonds or taxes required of or imposed against Contractor and all
other of Contractor's costs of doing business. No payments will be made for
services rendered or expenses incurred by Contractor other than the
Services unless such services are approved in advance in writing by Schwab,
and for which Contractor supplies such documentation as Schwab may require
in substantiation of such costs, e.g., copies of third-party invoices.
7. Invoices. Contractor shall submit its invoice for the Contract Sum within
thirty (30) calendar days after the completion of Services, or, if
applicable, for each Milestone Payment, within thirty (30) calendar days
after the Milestone Date specified for such
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Milestone Payment in the Business Terms, except to the extent otherwise
specified in the Business Terms. Contractor's invoice shall include such
detail, and Contractor shall provide such supplementary documentation, as
Schwab may request.
8. Payments.
a. The Contract Sum, any Milestone Payments and any Reimbursable Expenses
shall be payable upon Xxxxxx'x receipt of Contractor's invoice except
as may be otherwise specified in the Business Terms. Schwab may at any
time cancel any aspect of the Services, provided that Schwab informs
Contractor of any such cancellation in writing. In the event of any
such cancellation, Contractor shall be compensated for any Services
rendered prior to notice to Contractor of such cancellation, but any
compensation allocated to services which were yet to be rendered with
regard to any canceled aspect of the Services shall then be
eliminated, and the Contract Sum set forth in the Business Terms shall
be reduced accordingly. If Schwab cancels any aspect of the Services,
Contractor is not required to refund any portion of the nonrefundable
retainer fee paid by Schwab as specified in Exhibit A.
b. In the event of any breach or alleged breach of the representations or
warranties set forth below, or any material obligations of Contractor
under this Agreement, and Contractor fails to cure such breach or
alleged breach within five (5) business days after written notice
thereof by Schwab, Xxxxxx'x obligation to make payments yet to be made
under this Agreement shall be terminated, and Schwab shall have no
further obligation to pay any amount to Contractor. Termination of
such payment obligations shall be in addition to any other rights or
remedies that Schwab may have in the event of any such breach or
alleged breach. The remedies stated in this Paragraph 8 are not
exclusive, and Schwab shall retain the right to pursue all remedies
available to it under this Agreement or otherwise.
9. Obligations of Contractor.
a. All of Contractor's activities hereunder shall be at Contractor's own
risk, and neither Contractor nor Contractor's employees or agents
shall be entitled to any benefits under the policies of insurance
maintained by Schwab. Contractor shall be solely responsible for
making arrangements for insurance covering losses sustained in
connection with performing work under this Agreement, including
hospital and medical costs in connection with any injury or illness.
b. Contractor agrees to provide workers' compensation insurance for
Contractor's employees and agents, and agrees to hold harmless and
indemnify Schwab for any and all claims arising out of the injury,
disability, or death of Contractor (if Contractor is an individual) or
any of Contractor's employees or agents. Schwab may require proof of
such coverage.
c. Contractor shall be solely responsible for determining the means and
methods for performing the Services under this Agreement.
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d. Contractor may not assign, delegate or subcontract this Agreement nor
any of its rights, duties or obligations under this Agreement without
the express written consent of Schwab. Any purported assignment or
delegation in violation of this provision shall be void at the option
of Schwab. Contractor's obligations are personal to Contractor, and
Contractor acknowledges that Schwab has entered this Agreement in
reliance on Contractor's ability and agreement to perform its
obligations accurately, competently and completely. Schwab reserves
the right to assign its rights and obligations hereunder, as it deems
appropriate.
e. As Contractor is not Xxxxxx'x employee, Contractor is responsible for
paying all required state and federal taxes or other amounts due as a
result of the payment of compensation by Schwab under this Agreement.
In particular, Schwab will not withhold FICA from Contractor's
payments; Schwab will not make state or federal unemployment insurance
contributions on behalf of Contractor; Schwab will not withhold state
or federal income tax from the payments to Contractor; Schwab will not
make disability insurance contributions on behalf of Contractor;
Schwab will not obtain workers' compensation insurance on behalf of
Contractor. However, Schwab may, at its sole discretion, report its
payments to Contractor to appropriate state and federal government
agencies.
f. Except as expressly stated in the Business Terms, Contractor shall be
solely responsible for payment of all sales, use, or other taxes
assessed against or associated with the Services or any other service
authorized by Schwab under this Agreement.
10. Representations and Warranties. Contractor represents and warrants that:
(a) the work created or performed by Contractor hereunder, alone or in
collaboration with others, shall not constitute a slander or libel on any
person or entity; (b) Contractor has the full power to enter into and
perform this Agreement and to make the grant of rights contained herein;
(c) all Services performed hereunder shall be performed in accordance with
Xxxxxx'x specifications and requirements and with all necessary care, skill
and diligence; (d) the Deliverables will meet the Description of
Deliverables set forth in the Business Terms and will be free of defects in
design, material and workmanship and will be suitable for the purposes
intended; (e) upon delivery of each Deliverable, Schwab will have
marketable title to such Deliverable, free and clear of all liens and
encumbrances; and (f) the use of the Deliverables for the purposes intended
will not infringe upon or violate any rights of privacy, publicity,
patents, copyrights or other proprietary rights owned or controlled by a
third party. Schwab represents and warrants that: (a) it has the full power
to enter into and perform this Agreement, (b) that the embodiment by
Contractor of any materials provided by Schwab in the Schwab Web site will
not infringe upon or violate any rights of privacy, publicity, patents,
copyrights or other proprietary rights owned or controlled by a third
party, and (c) if necessary, it has acquired the right to use and is
responsible for any compensation due to any third party for materials
provided by Schwab for use in providing the Services hereunder.
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11. Ownership.
a. All services and/or works, and any elements thereof, created,
performed, contributed or prepared by Contractor pursuant to this
Agreement, and any results or proceeds therefrom, are and shall be the
property of Schwab. Any proprietary materials owned by Contractor that
it utilizes in providing the Services and performing work hereunder
shall remain the property of Contractor.
b. Contractor hereby assigns, transfers and conveys to Schwab,
exclusively and perpetually, all rights, titles, and interests
throughout the world it may acquire in any and all services and/or
works, and any elements thereof, created, performed, contributed or
prepared by Contractor pursuant to this Agreement, including without
limitation any copyrights, patents or rights of reproduction, and the
right to secure registrations, renewals, reissues, and extensions
thereof. Such services and/or works are not "fine art" within the
meaning of Div. 2, Part 3, Title II, Chapter 3 of the California Civil
Code. No rights of any kind are reserved to or by the Contractor or
shall revert to Contractor. Contractor agrees to execute such further
documents and to do such further acts as may be necessary to register
or enforce Xxxxxx'x ownership of such rights, in whole or in part. If
Contractor fails or refuses to execute any such documents, Contractor
appoints Schwab as Contractor's attorney-in-fact (this appointment
irrevocable and a power coupled with an interest) to act on
Contractor's behalf to execute such documents.
c. Contractor hereby forever waives and agrees never to assert against
Schwab, its successors or licensees any and all Moral Rights (as
defined herein) Contractor may have in any services and/or works, and
any elements thereof, created, performed, contributed or prepared by
Contractor pursuant to this Agreement, and any results or proceeds
therefrom, even after expiration or termination of this Agreement.
"Moral Rights" means any right to claim authorship of a work, any
right to object to any distortion or other modification of a work, and
any similar right, existing under the law of any country in the world,
or under any treaty.
12. Confidentiality. Each party (as such, a "Receiving Party") acknowledges
and agrees that pursuant to this Agreement, it may have access to the other
party's (as such a "Disclosing Party") confidential and proprietary
information and materials concerning or pertaining to the Disclosing
Party's business, including without limitation, methods, plans, customers
and/or projects, and that such information is confidential and proprietary
to the Disclosing Party. The Receiving Party agrees and acknowledges that
the Party's sole purpose in disclosing confidential or proprietary
information to the Receiving Party or allowing the Receiving Party access
to such information is to aid the Receiving Party in performing the
Services. The Receiving Party will receive and hold such information in the
strictest confidence, and acknowledges, represents and warrants that it
will use its best efforts to protect the confidentiality of the Disclosing
Party's information. The Receiving Party agrees that, without the prior
written consent Disclosing Party, the Receiving Party shall not use, copy
or divulge to third parties or otherwise use except in accordance with the
terms of this Agreement, any information obtained from or through the
Disclosing Party in connection with this Agreement, unless (a) the
information is
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known to the Receiving Party prior to obtaining same from the Disclosing
Party; (b) the information is, at the time of disclosure to the Receiving
Party, then in the public domain; or (c) the information is obtained by the
Receiving Party from a third party who did not receive same, directly or
indirectly, from the Disclosing Party. The Receiving Party further agrees
that the Receiving Party will not, without the prior written consent of the
Disclosing Party, disclose to any third party any information developed or
obtained by the Receiving Party in connection with this Agreement, to the
extent that said information falls within one of the categories described
in (a), (b) or (c) above. Upon the Disclosing Party's written request or
upon expiration or termination of this Agreement for any reason, the
Receiving Party will promptly:
(i) return or destroy, at the Disclosing Party's option, all originals
and copies of all documents and materials it has received containing
the Disclosing Party's information;
(ii) deliver or destroy, at the Disclosing Party's option, all originals
and copies of all summaries, records, descriptions, modifications,
negatives, drawings, adoptions and other documents or materials,
whether in writing or in machine-readable form, prepared by Receiving
Party prepared under its direction or at its request from the
documents materials referred to in subparagraph (i), and
(iii) provide a notarized written statement to the Disclosing Party
certifying that documents and materials referred to in subparagraphs
(i) and (ii) have been delivered to the Disclosing Party or
destroyed, as requested by the Disclosing Party.
13. Indemnification. Contractor agrees to defend, indemnify, and hold Schwab
harmless from and against any and all damages, liabilities, costs and
expenses (including but not limited to attorneys' fees) incurred by Schwab
as a result of any claim, judgment or proceeding against Schwab: (a)
arising out of or connected in any manner with the performance of the
Services or the acquiring, making and delivery of the Deliverables
hereunder; or (b) by reason of any breach or alleged breach or failure of
any of the warranties, agreements, representations or obligations of
Contractor under this Agreement, provided that Schwab promptly notifies
Contractor of any such claim, judgment or proceeding in writing and tenders
to Contractor the opportunity to settle such claim, judgment or proceeding
at Contractor's expense and cooperates with Contractor in settling such
claim, judgment or proceeding. Schwab agrees to defend, indemnify, and hold
Contractor harmless from and against any and all damages, liabilities,
costs and expenses (including but not limited to attorneys' fees) incurred
by Contractor as a result of any claim, judgment or proceeding against
Contractor by reason of any breach or alleged breach or failure of any of
the warranties, agreements, representations or obligations of Schwab under
this Agreement, provided that Contractor promptly notifies Schwab of any
such claim, judgment or proceeding in writing and tenders to Schwab the
opportunity to settle such claim, judgment or proceeding at Xxxxxx'x
expense and cooperates with Schwab in settling such claim, judgment or
proceeding.
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14. Termination. This Agreement shall terminate automatically upon the
bankruptcy or insolvency of either party, the sale of the business of the
Contractor, or the death of Contractor (if Contractor is an individual).
Should Contractor default in the performance of this Agreement or
materially breach any of its provisions, Schwab, at Xxxxxx'x option, may
terminate this Agreement by giving written notice to Contractor. For the
purpose of this paragraph, material breach of this Agreement shall include,
but not be limited to, the destruction of Schwab property, breach of any
Confidentiality Agreement entered into by Contractor and Schwab, dishonesty
or theft, or failure to perform the Services to Xxxxxx'x satisfaction. In
addition, this Agreement may be terminated immediately by either party upon
fourteen (14) days written notice to the other party for any reason,
notwithstanding that the non-terminating party is in compliance with all
delivery, performance or payment requirements. Notwithstanding the
foregoing or any breach or termination of the Agreement, Paragraphs 9, 10,
11, 12, 13, 16 and 17 herein shall remain in full force and effect.
15. Arbitration. Contractor and Schwab agree to settle by binding arbitration
any dispute or controversy between Contractor and Schwab and/or any of
Xxxxxx'x officers, employees, directors or agents which in any way arises
out of or relates to this Agreement, the work performed by Contractor
hereunder or the relationship between Contractor and Schwab. Such
arbitration shall be conducted in San Francisco, California by the American
Arbitration Association under the Commercial Arbitration rules then in
effect. Either Contractor or Schwab may initiate arbitration by serving or
mailing a written notice to the other. Any award entered by the
arbitrator(s) shall be final and judgment thereon may be entered in any
court having jurisdiction. The prevailing party shall be entitled to
recovery of costs, fees (including attorney's fees) and/or taxes paid or
incurred in obtaining the award. Furthermore, any costs, fees or taxes
involved in enforcing the award shall be fully assessed against and paid by
the party resisting enforcement of the award.
16. Advertising. Contractor shall acquire no right to use, and shall not use,
without Xxxxxx'x prior written consent, the names, characters, artwork,
designs, trade names, copyrighted materials, trademarks or service marks of
Schwab, its related or subsidiary companies, parent, employees, directors,
shareholders, assigns, successors or licensees: (a) in any advertising,
publicity or promotion; (b) to express or to imply any endorsement of
Contractor's services; or (c) in any manner other than expressly in
accordance with this Agreement. Schwab agrees, however, to work with
Contractor in developing and approving a standard press release with
respect to the Services contemplated hereunder, provided however, that
Contractor must obtain Xxxxxx'x prior written approval in advance of each
use of the standard press release.
17. Records. Contractor shall retain all documents, notes, records, and all
other documentation with regard to the Services for a period of two (2)
years after completion of such services. Schwab or its duly authorized
representative, at all reasonable times during the performance of such
services and such subsequent two (2) year period, shall have access to such
documents, notes and records for purposes of auditing and verifying the
costs of such services or for any other reasonable purpose.
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18. Future Employment. The parties agree and acknowledge that this Agreement
is not to be construed as an offer of future employment.
19. Notices. Any and all notices or other communications required or permitted
by this Agreement shall be in writing and shall be deemed delivered when
personally delivered to the party to whom it is addressed, or in lieu of
such personal services, seventy-two (72) hours after deposit in the United
States mail, first-class, postage pre-paid, addressed to such party at the
appropriate address set forth in the Business Terms. Either party may
change its address for the purpose of this provision by giving written
notice of such change to the other.
20. Entire Agreement. This Agreement contains all of the covenants and
agreements between the parties with respect to the rendering of the
Services and any other matter hereunder, and supersedes any and all prior
negotiations, representations and agreements whether written or oral,
between the parties with respect to the rendering of such Services and any
other matter hereunder. Each party acknowledges that no representations,
inducements, promises or agreements, orally or otherwise have been made by
any party. No other agreement, statement or promise not contained in this
Agreement, and no changes or modifications to this Agreement, will be
effective unless it is writing and signed by both parties.
21. Waivers. All waivers hereunder must be made in writing, and failure at any
time to require the other party's performance of any obligation under this
Agreement shall not affect the right subsequently to require performance of
that obligation.
22. Governing Law. The interpretation and enforcement of this Agreement shall
be governed by the law of the State of California applicable to contracts
entirely entered into and performed in California by California residents.
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