EXHIBIT 10.5
INDEPENDENT CONTRACTOR AGREEMENT
(IVDESK)
This Independent Contractor Agreement ("AGREEMENT") is entered into as of May
22nd 2014 by and between IVDesk Minnesota, Inc., a Minnesota corporation and its
Agents with principal place of business at 0000 Xxxxxxx Xxx. XX, Xxxxx 000
Xxxxxxxxxxx, XX 00000 ("IVDesk") and T>Xxxxxx, Inc; including any personnel,
employees, or agents, with a principal place of business at 0000 Xxxxxxxxx Xxxx,
Xxxxx 0000 Xxxxxxxxxxx, XX 00000 ("CONTRACTOR"). IVDesk and Contractor shall be
individually referred to as a "PARTY" or collectively referred to as the
"PARTIES".
1. NATURE OF SERVICES. Contractor will perform the services, as more
particularly described on Exhibit A, for Company as an independent contractor
(the "SERVICES"). Services have been specially ordered and commissioned by
Company. To the extent the Services include materials subject to copyright,
Contractor agrees that the Services are done as "work made for hire" as that
term is defined under U.S. copyright law, and that as a result, Company will own
all copyrights in the Services. Contractor will perform Services in a diligent
and workmanlike manner and in accordance with the schedule, if any, set forth in
Exhibit A. The content, style, form and format of any work product of the
Services shall be completely satisfactory to Company and shall be consistent
with Company's standards. Except as specified on Exhibit A, Company agrees that
Services need not be rendered at any specific location and may be rendered at
any location selected by Contractor. Contractor hereby grants Company the right,
but not the obligation, to use and to license others the right to use
Contractor's, and Contractor's employees', name, voice, signature, photograph,
likeness and biographical information in connection with and related to the
Services.
2. WRITTEN REPORTS. The Company may request that project plans, progress reports
and a results report be provided by Consultant on a monthly basis. These reports
shall be in such form and setting forth such information and data as is
reasonably requested by the Company.
3. RELATIONSHIP OF THE PARTIES. Contractor enters into this Agreement as, and
shall continue to be, an independent contractor. All Services shall be performed
only by Contractor and Contractor's employees. Under no circumstances shall
Contractor, or any of Contractor's employees, look to Company as his/her
employer, or as a partner, agent or principal. Contractor is not Company's agent
or representative and has no authority to bind or commit Company to any
agreements or other obligations. Neither Contractor, nor any of Contractor's
employees, shall be entitled to any benefits accorded to Company's employees,
including without limitation worker's compensation, disability insurance,
vacation or sick pay. Contractor shall be responsible for providing, at
Contractor's expense, and in Contractor's name, unemployment, disability,
worker's compensation and other insurance, as well as licenses and permits usual
or necessary for conducting the Services as outlined by any City State or
Federal authority.
4. COMPENSATION AND REIMBURSEMENT. Contractor shall be compensated and
reimbursed for the Services as set forth on Exhibit B. Completeness of work
product shall be determined by Company in its sole discretion, and Contractor
agrees to make all revisions, additions, deletions or alterations as requested
by Company. No other fees and/or expenses will be paid to Contractor, unless
such fees and/or expenses have been approved in advance by the appropriate
Company executive in writing.
5. CONTRACT OR REPRESENTATIONS AND WARRANTIES. Contractor represents and
warrants to Company that:
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5.1 Contractor has full power and authority to enter into this Agreement
including all rights necessary to make the foregoing assignments to
Company; that in performing under the Agreement.
5.2 Contractor will not violate the terms of any agreement with any third
party.
5.3 That the Services and any work product thereof are the original work
of Contractor, do not and will not infringe upon, violate or
misappropriate any patent, copyright, trade secret, trademark,
contract, license, or any other publicity right, privacy right, or
proprietary right of any third party. Contractor shall defend,
indemnify and hold Company and its successors, assigns and licensees
harmless from any and all claims, actions and proceedings, and the
resulting losses, damages, costs and expenses (including reasonable
attorneys' fees) arising from any claim, action or proceeding based
upon or in any way related to Contractor's, or Contractor's employees,
breach or alleged breach of any representation, warranty or covenant
in this Agreement, and/or from the acts or omissions of Contractor or
Contractor's employees.
5.4 That its employees performing Services hereunder will have (a)
sufficient expertise, training and experience to accomplish the
Services; and (b) executed agreements which state that (i) all work
done by the employee will be a work made for hire, as that term is
defined under U.S. copyright law, and will owned by Contractor; and
(ii) the employee assigns all rights in and to all work done by the
employee to Contractor.
5.5 Contractor shall be solely responsible for any and all taxes, Social
Security contributions or payments, disability insurance, unemployment
taxes, and other payroll type taxes applicable to such compensation.
Contractor agrees that all its personnel shall be compensated, taxes
withheld, and other benefits made available as required by applicable
law and regulations.
5.6 Contractor hereby indemnifies and holds Company harmless from, any
claims, losses, costs, fees, liabilities, damages or injuries suffered
by Company arising out of Contractor's failure with respect to its
obligations in this Section 5.
5.7 Contractor shall require all of its employees who perform Services
hereunder to date and sign a copy of the then current IVDESK
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT prior to performing
Services hereunder.
6. CONFIDENTIALITY. The Contractor acknowledges that during the engagement he or
she will have access to and become acquainted with various trade secrets,
inventions, innovations, processes, information, records and specifications
owned or licensed by the Company and/or used by the Company in connection with
the operation of its business including, without limitation, the Company's
business and product processes, methods, customer lists, accounts and
procedures.
6.1 The Contractor agrees that he or she will not disclose, cause the
transmission, removal or transport of tangible embodiments of, or
electronic files containing any of the aforesaid, directly or
indirectly, or use any of them in any manner, either during the term
of this Agreement or at any time thereafter, except as required in the
course of this engagement with the Company. All files, records,
documents, blueprints, specifications, information, letters, notes,
media lists, original artwork/creative, notebooks, and similar items
relating to the business of the Company, whether prepared by the
Contractor or otherwise coming into his or her possession, shall
remain the exclusive property of the Company.
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6.2 The Contractor shall not retain any copies of the foregoing without
the Company's prior written permission. Upon the expiration or earlier
termination of this Agreement, or whenever requested by the Company,
the Contractor shall immediately deliver to the Company all such
files, records, documents, specifications, information, and other
items in his or her possession or under his or her control.
6.3 Contractor's obligations with respect to any portion of the Company
Information as set forth in this Section 6 shall not apply when
Contractor can document that (i) it was in the public domain at the
time it was communicated to Contractor by Company; (ii) it entered the
public domain subsequent to the time it was communicated to Contractor
by Company through no fault of Contractor; (iii) it was in
Contractor's possession free of any obligation of confidence at the
time it was communicated to Contractor by Company; or (iv) it was
rightfully communicated to Contractor free of any obligation of
confidence subsequent to the time it was communicated to Contractor by
Company.
6.4 The Contractor further agrees that he or she will not disclose his or
her retention as an independent contractor or the terms of this
Agreement to any person without the prior written consent of the
Company and shall at all times preserve the confidential nature of his
or her relationship to the Company and of the Services hereunder.
7. INVENTIONS. Any and all inventions, discoveries, developments and innovations
conceived by the Contractor during this engagement relative to the duties under
this Agreement shall be the exclusive property of the Company an infinite
duration; and the Contractor hereby assigns all right, title, and interest in
the same to the Company. Any and all inventions, discoveries, developments and
innovations conceived by the Contractor prior to the termination of this
Agreement and utilized by [him or her] in rendering duties to the Company are
hereby licensed to the Company for use in its operations and for an infinite
duration. This license is non-exclusive, and may be assigned without the
Contractor's prior written approval by the Company to a wholly-owned subsidiary
of the Company.
8. RELATIONSHIPS AND COMMITMENTS Except as disclosed on Exhibit C to this
Agreement, Contractor has no other agreements, relationships or commitments to
any other person or entity which conflict with Contractor's obligations to
Company under this Agreement. During the term of this Agreement Contractor
agrees not to enter into any agreement, either written or oral, in conflict with
this Agreement. Contract further agrees that during the term of this Agreement
and for 3 years after termination of this Agreement, Contractor shall not enter
into any agreement nor take any action that shall compete with nor lower the
revenue potential of Company.
9. TERM AND TERMINATION OF AGREEMENT.
9.1 TERM. This Agreement shall be effective from the date first listed
above for the period set forth on Exhibit A, or until completion of
the Services, as applicable, unless sooner terminated by either Party
in accordance with the terms and conditions of this Agreement.
9.2 TERMINATION. This Agreement can be terminated by either Party at any
time, with or without cause, upon 90 day notice to the other Party. If
Company exercises its right to terminate the Agreement, Company shall
be obligated to compensate Contractor for work performed up to the
date of termination. If Contractor exercises its right to terminate
the Agreement, work obligation under this Agreement shall continue
until as of date of termination at which time it shall cease.
Additionally, this Agreement shall automatically terminate upon death
of any Contractor or inability of Contractor to perform work. In such
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event, Company shall be obligated to pay Contractor's estate or
beneficiaries only the accrued but unpaid compensation and expenses
for work performed.
10. AGREEMENT NOT TO DISPARAGE. Company, its officers and directors, on the one
hand, and Contractor on the other hand, agree that they will not, directly or
indirectly, in public or in private, disparage, deprecate or impugn, or
otherwise make any remarks that would tend to or could reasonably be construed
to disparage, deprecate or impugn, the other party, nor shall any such Party
encourage other persons or entities to do so.
11. CONTINUING OBLIGATIONS OF CONTRACTOR. The provisions of Sections 5, 6, 7,
10, and 12 shall survive expiration or termination of this Agreement for any
reason for 5 years unless otherwise stated in that Section.
12. ADDITIONAL PROVISIONS.
12.1 ATTORNEYS FEES. Should any legal action permissible under this
Agreement be instituted to enforce the terms and conditions of this
Agreement, in particular the right to collect money due on unpaid
invoices, the prevailing Party shall be entitled to recover reasonable
attorney's fees and expenses incurred at both the trial and appellate
levels.
12.2 NON-SOLICITATION. Contractor agrees not to solicit, hire, or otherwise
engage in any like activity in any manner whatsoever, directly or
indirectly, with any of IVDesk employees during the term of this
Contract and for a period of one (1) year thereafter. For each breach
by Contractor of the forgoing restrictions, Contractor will pay IVDesk
an amount equal to any recruitment or referral fees paid by IVDesk for
such employee and the full amount of all compensation earned by such
employee during the twelve (12) months proceeding Contractors breach
of the forgoing restrictions. Contractor further agrees not to
prospects, or clients,
12.3 GOVERNING LAW AND ATTORNEY'S FEES. This Agreement shall be governed by
and construed in accordance with the laws of the State of Minnesota,
without regard to its choice of law principles. The Parties consent to
exclusive jurisdiction and venue in the federal and state courts
sitting in Hennepin County, Minnesota. In any action or suit to
enforce any right or remedy under this Agreement or to interpret any
provision of this Agreement, the prevailing Party shall be entitled to
recover its reasonable attorney's fees, costs and other expenses.
12.4 BINDING EFFECT. This Agreement shall be binding upon, and inure to the
benefit of, the successors, executors, heirs, representatives,
administrators and permitted assigns of the Parties hereto. Contractor
shall have no right to (a) assign this Agreement, by operation of law
or otherwise; or (b) subcontract or otherwise delegate the performance
of the Services without Company's prior written consent which may be
withheld as Company determines in its sole discretion. Any such
purported assignment shall be void.
12.5 SEVERABILITY. If any provision of this Agreement shall be found
invalid or unenforceable, the remainder of this Agreement shall be
interpreted so as best to reasonably affect the intent of the Parties.
12.6 ENTIRE AGREEMENT. This Agreement, including the Exhibits, constitutes
the entire understanding and agreement of the Parties with respect to
its subject matter and supersedes all prior and contemporaneous
agreements or understandings, inducements or conditions, express or
implied, written or oral, between the Parties.
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12.8 CONTRACTOR'S REMEDY. Contractor's remedy, if any, for any breach of
this Agreement shall be solely in damages and Contractor shall look
solely to Company for recover of such damages. Contractor waives and
relinquishes any right Contractor may otherwise have to obtain
injunctive or equitable relief against any third party with respect to
any dispute arising under this Agreement. Contractor shall look solely
to Company for any compensation which may be due to Contractor
hereunder.
12.9 AMENDMENT AND WAIVERS. Any term or provision of this Agreement may be
amended, and the observance of any term of this Agreement may be
waived, only in written form signed by the Party to be bound. The
waiver by a Party of any breach or default in performance shall not be
deemed to constitute a waiver of any other or succeeding breach or
default. The failure of any Party to enforce any of the provisions
hereof shall not be construed to be a waiver of the right of such
Party thereafter to enforce such provisions.
12.10NOTICES. Any notice, demand, or request with respect to this
Agreement shall be in writing and shall be effective only if it is
delivered by personal service, by air courier with receipt of
delivery, or mailed, certified mail, return receipt requested, postage
prepaid, to the address set forth above. Such communications shall be
effective when they are received by the addressee; but if sent by
certified mail in the manner set forth above, they shall be effective
five (5) days after being deposited in the mail. Any Party may change
its address for such communications by giving notice to the other
Party in conformity with this section.
CAUTION: THIS AGREEMENT AFFECTS CONTRACTORS RIGHTS TO INNOVATIONS MADE
PERFORMING SERVICES, AND RESTRICTS RIGHTS TO DISCLOSE OR USE COMPANY'S
CONFIDENTIAL INFORMATION DURING OR SUBSEQUENT TO CONTRACTOR PERFORMING SERVICES.
CONTRACTOR HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS EACH AND ALL OF ITS
TERMS AND SIGNS BELOW ON BEHALF OF CONTRACTOR AND ANY INDIVIDUAL IT INVOLVES
WITH COMPANY UNDER THIS AGREEMENT. PRIOR TO SIGNATURE BELOW, CONTRACTOR
WARRENTEES THAT IT HAS COMPLETELY FILLED OUT THE EXHIBIT C TO THIS AGREEMENT.
By: IVDesk By: Contractor
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Print - Full Signatory Name Print - Full Signatory Name
-------------------------------- -----------------------------
Authorized Signature Authorized Signature
0000 Xxxxxxx Xxxxxx X.X. Xxxxx 000 ------------------------------
Xxxxxxxxxxx, XX 000000 Address
Date: ------------------------------
------------------------ City/State/Zip
Date:
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EXHIBIT A
DESCRIPTION OF SERVICES AND COMMENCEMENT DATE
SERVICES TO BE PROVIDED BY CONTRACTOR
o Contractor shall be acting CFO for IVDesk and shall provide all work
necessary to fulfil this function.
o Contractor shall report directly to the CEO of IVDesk ("Supervisor")
o Initially, contractor shall devote 80% of his time to the CFO
function.
o From time to time, Contractor and Supervisor shall assess the time
commitment needed for Contractor's services and shall adjust it
accordingly.
COMMENCEMENT DATE
Services shall commence on June 1, 2014 and shall continue until such time as
either Party has provided sufficient notice as defined in section 9.2 above.
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EXHIBIT B
PAYMENT
COMPENSATION
o Contractor compensation shall be based on a fulltime rate of $10,000
per month ($120,000 per year). Contractor agrees for the first period
of this contract to commit 80% of his time therefor initial
compensation shall be $9600 per month (80% of $10,000) which shall be
paid by the 15th of each month.
o Other Benefits:
1. Participation in the stock option or warrant plan at a current
plan total of 120,000 over 36 months or 3,333 units/month, of
which the first 6 months will vest at the end of that first 6
month period, thereafter each monthly award will vest monthly.
2. Participation in the bonus program which is yet to be finalized
but is anticipated to include a bonus value (which may be paid
1/4 quarterly or annually) of approximately one month's
compensation. This plan is anticipated to be implemented when the
company achieves both an EBITDA positive position and a $5
million run rate.
EXPENSES
During the term of this Agreement, the Contractor shall xxxx and the Company
shall reimburse Contractor for all reasonable and approved out-of-pocket
expenses which are incurred in connection with the performance of the duties
hereunder.
Notwithstanding the foregoing, expenses for the time and any other expenses
incurred by Contractor traveling to and from Company facilities shall not be
reimbursable.
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EXHIBIT C
CONFLICTING RELATIONSHIPS
1. CONFLICTING RELATIONSHIPS. Except as set forth below, Contractor acknowledges
that it has no other current or prior agreements, relationships or commitments
which conflict with the relationship with Company under this Agreement (if none,
so state):
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Dated:
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CONTRACTOR (Print Name)
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SIGNATURE OF CONTRACTOR REPRESENTATIVE
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