THIS AGREEMENT ("Agreement") is entered into by and between ("Producer"), a corporation, and the undersigned (the "Programmer"), an Select onean individuala company,Select onesocial security numbertaxpayer id number:.
The following terms and conditions are subject to the additional terms and conditions attached hereto in the document on WebMaster letterhead titled: Webmaster Deal Memo & Exhibits which are incorporated herein by reference.
1. Engagement of Services
Programmer agrees to perform services for Producer as enumerated in Webmaster Solution Design Deal Memo & Exhibits dated ("Product" or "services"). Producer selected Programmer to perform these services based upon Producer receiving Programmer's personal service and therefore Programmer may not subcontract or otherwise delegate its obligations under this Agreement without Producer's prior written consent. Programmer agrees to perform the services in a professional and timely manner.
2. Exclusivity
Programmer's services are to be rendered on a non-exclusive basis. The term of this Agreement is from the date of commencement of services.
3. Compensation
Producer will pay Programmer the fee set forth in the Deal Memo for services rendered by Programmer pursuant to this Agreement, subject to the terms of this Agreement relating to Force Majeure, Incapacity, Default, and Contingencies. All payments hereunder shall be payable only upon the condition that Programmer has executed delivered this Agreement and fully complies with all obligations hereunder. Programmer will not be reimbursed for any expenses incurred which substantially exceed $500 in aggregate in connection with the performance of services under this Agreement, unless those expenditures are approved in writing by Producer. No casual or inadvertent failure to comply with billing requirements shall be deemed a breach of this Agreement, and the sole remedy for breach of any of the provisions of this paragraph shall be an action at law for damages, it being agreed that in no event shall Programmer seek or be entitled to injunctive or other equitable relief for breach of any or the billing requirements hereof. Producer shall not pay or reimburse under any circumstances, Programmer for out of pocket expenses including without limitation: travel, photocopies, art supplies, clip art, media storage ie: floppy discs, syquest discs, cd-roms, DVD-Roms, digital files, digital graphics, reference materials. Programmer's compensation is limited to cash compensation as described in the Deal Memo and this section of this Agreement named Compensation.
All compensation which shall become due to Programmer shall be paid by Producer by check and sent to Programmer at the address provided or at Producer's office. All such compensation shall be payable on Producer's normal payday, two weeks in arrears. All compensation shall be payable to Programmer as provided in this section labeled Compensation of this Agreement, if any, and shall be payable only upon the condition that Programmer has executed and delivered this Agreement and fully complies with all obligations hereunder.
Programmer authorizes Producer to deduct and withhold from Programmer's compensation hereunder: (i) state, local, and/ or federal taxes which Producer is required by law to withhold; (ii) should Producer pay Programmer in respect of any period of suspension under provisions of the Agreement hereof, an equivalent amount from any compensation thereafter accruing to Programmer; and (iii) all amounts which Producer, as advised by council, are required by law to be withheld.
4. Labor Organizations
This Agreement shall not be subject to the jurisdiction of any union or labor organization unless Producer so elects (in which event Programmer shall be willing to join such union at Programmer's expense if Producer so requires.) No additional payments shall be required in respect of services rendered at night or on Sundays, Saturdays or holidays or for meal delays, hazardous work, violation of rest periods, or otherwise, or for exhibitions of the Project on any medium or markets, supplemental or otherwise, specifically required under any collective bargaining agreements. Any compensation payable hereunder which, in the aggregate, exceeds the applicable minimum scale provided for in a collective bargaining agreement shall, to the full extent permitted or not prohibited by such agreement , be credited against supplemental payments arising out of exhibitions of the picture on any medium or markets, supplemental or otherwise, overtime meal delay, allowances, weekends, nights, allowances for hazardous work, violations of rest periods, severance pay, vacation pay, sick leaves and similar matters. Nothing herein shall void Producer's obligations to obey existing State Labor Laws.
5. Independent Contractor Relationship
Programmer and Producer understand, acknowledge, and agree that Programmer's relationship with Producer will be that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, or employment relationship.
6. Trade Secrets and Confidential Information
Programmer represents that his performance of all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data of a third party and Programmer will not disclose to Producer, or induce Producer to use, any confidential or proprietary information belonging to third parties unless such use or disclosure is authorized in writing by such owners.
Programmer agrees during the term of this Agreement and thereafter to take all steps reasonably necessary to hold in trust and confidence information which he knows or has reason to know is considered confidential by Producer ("Confidential Information"). Programmer agrees to use the Confidential Information solely to perform the project hereunder. Confidential Information includes, but is not limited to, technical and business information relating to Producer's inventions or products, research and development, manufacturing and engineering processes, and future business plans. Programmer's obligations with respect to the Confidential Information also extend to third party's proprietary or confidential information disclosed to Programmer in the course of providing services to Producer. This obligation shall not extend to any information which becomes generally known to the public without breach of this Agreement. This obligation shall survive the termination of this Agreement.
7. Credit
Producer in its sole discretion will determine and accord Programmer's credit if any, as a Programmer or other suitable credit. No casual or inadvertent failure to comply with billing requirements shall be deemed a breach of this Agreement, and the sole remedy for breach of any of the provisions of this paragraph shall be an action at law for money damages, it being agreed that in no event shall Programmer seek or be entitled to injunctive or other equitable relief for breach of any or the billing requirements hereof.
8. Intellectual Property Rights
Programmer represents that any inventions or copyrighted works relating to Producer's actual or anticipated business or research and development which Programmer has conceived, developed, made, or reduced to practice at the time of signing this Agreement, have been disclosed in writing to Producer and attached to this Agreement in the Deal Memo (the "code").
9. Rights
The results and proceeds of Programmer's services rendered in connection with programming for website hereunder will be owned exclusively by Producer, including without limitation, all patents, trademarks, trade secrets, copyrights, transparencies, material inventions, methods, processes, models, mock-ups, miniatures, storyboards, special effects, inventions (whether patentable or not), designs, technology, know-how, software programs and other concepts for programs, computer "agents", computer "tools", computer "engines", source code, source or object descriptions, ideas, or information made or conceived or reduced to practice by Producer and all improvements, up-dates, later versions, beta and alpha and golden master versions relating thereto, and suggestions and ideas of every kind created for the Products and/ or any services hereunder, whether submitted to Producer or not in connection with employment which is the subject of this agreement.
(A) Work Made For Hire:
Producer shall solely and exclusively own throughout the universe in perpetuity all rights of every kind and nature, including the copyright and all rights of copyright, in and to the Services, the Project, all components thereof, and all the results and proceeds of Programmer's services of every kind and nature, in whatever stage of completion of the Project or such results and proceeds may exist from time to time. Producer's rights hereunder shall also include the rights generally known as the "moral rights of authors" and the exclusive right to distribute and otherwise market and exploit the Project and all components thereof in any manner, including without limitation all electronic games or software programs, or any digitized representation or embodiment of the Services derived from or based on the Project, in CD-ROM or any other computer readable format, and by any other electronic, cable, telephonic, satellite or interactive computer means including but not limited to the Internet, and web sites whether now known or hereafter devised, theatrical, all forms of television, video devices for home or other use, live performance, soundtracks, products and merchandise of all kinds, as well as subsidiary, allied and ancillary rights. Programmer acknowledges that all results and proceeds of Programmer's services including without limitation all work product and rights therein, including without limitation copyright, are being prepared by Programmer as an employee of Producer within the scope of the Programmer's employment with Producer and shall be considered a "work made for hire" for Producer as specially commissioned for use as part of a website/ multi-media/ Internet project in accordance with the U.S. Copyright Act. Therefore, Producer shall be the author and copyright producer thereof for all purposes throughout the universe without limitation of any kind, including the right, in its sole discretion, to make any changes or modifications thereto.
(B) Assignment
If and to the extent that all or any of the provisions of section (A) (directly above) do not operate to vest fully and effectively in Producer all or any of the rights set forth therein, Programmer hereby grants and assigns to Producer all rights not so vested (and so far as may be appropriate by way of immediate assignment of future copyright) throughout the universe in perpetuity in any and all media, whether now hereafter known or created, free from all restrictions and limitations, together with the rights generally known as the "moral rights of authors", including without limitation any so-called 'Rental and Lending Rights' pursuant to any European Economic Community directives or laws or regulations, which are hereby expressly waived and the exclusive right to distribute and otherwise market and exploit the Project and all components thereof (to the extent the results, product and proceeds of Programmer's services may e incorporated therein) in any manner, whether now or hereafter known or created. Programmer will, upon request, execute, acknowledge, and deliver to Producer such additional documents as Producer such additional documents as Producer may deem necessary to evidence and effectuate Producer's rights hereunder, and hereby grants to Producer the right, as attorney-in-fact, to execute, acknowledge, deliver, and record any and all such documents.
(C) Termination
The termination of this agreement for any reason shall not effect Producer's ownership of any and all aspects of Products and of Programmer's services hereunder or alter any warranty, representation, covenant or undertaking on the part of Programmer hereunder.
It is expressly agreed that all the terms and covenants of Section 6. shall survive the expiration or termination of this Agreement.
10. No Conflict of Interest
Programmer agrees during the term of this Agreement not to accept work or enter into a contract or accept an obligation, inconsistent or incompatible with Programmer's obligations or the scope of services rendered for Producer under this Agreement.
11. Assignment
This Agreement is non-assignable by Programmer. Producer may assign and/ or license this Agreement and this Agreement shall inure to the benefit of Producer's successors, assignees, licensees and grantees and associated, affiliated and subsidiary companies and Producer and subsequent assignee may freely assign this Agreement, in whole or in part, to any party provided that such party assumes and agrees in writing to keep and perform all the executory obligations of Producer hereunder, and in such event Producer shall then be released from any and all obligations hereunder.
12. Notices
All notices from Producer to Programmer shall be given in writing, e-mail, messenger, or facsimile (and if faxed, such notice shall also be sent by mail; however, failure to send such facsimile notice by mail shall not effect the validity of such notice). At Producer's option, Producer may deliver such notice to Programmer personally, either orally or in writing, however oral notice regarding a suspension or termination of Programmer's services hereunder shall be confirmed in writing within a reasonable period of time after such notice is given orally. The earlier of: (1) actual receipt, (2) three business days after the date of mailing, or (3) the date of messenging, faxing, e-mail, or of personal delivery shall be deemed to be the date of service. Notices to Producer shall be sent as follows:
To Producer:
Via e-mail address at
and /or faxed to
and/ or air mailed to at least once every two days.
To Programmer:
Via e-mail and/ or fax and/ or air mail and/or whiteboard approximately once per week and/ or no more than one week post Programmer's communication to Producer for a response, and /or feedback.
13. Return of Producer's Property
Programmer acknowledges that Producer's sole and exclusive property includes all documents, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employees lists, customer lists and the like in his custody or possession, whether delivered to Programmer by Producer or made by Programmer in the performance of services under this Agreement, relating to the business activities of Producer or its customers or suppliers and containing any information or data whatsoever, whether or not Confidential Information. Programmer agrees to deliver promptly all of Producer's property in Programmer's possession to Producer at any time upon Producer's request.
14. Warranties
Programmer represents and warrants that:
(a) the code was created solely by him, his full-time employees during the course of their employment, or independent Programmers who assigned all right, title and interest in their code to Programmer;
(b) Programmer is the owner of all right, title, and interest in the tangible forms of the code and all intellectual property rights protecting them. The code and the intellectual property rights protecting them are free and clear of all encumbrances, including, without limitation, security interests, licenses, liens, charges or other restrictions.
(c) Programmer has maintained the code in confidence;
(d) the use, reproduction, distribution, or modification of the code does not and will not violate the rights of any third parties in the code including, but not limited to, trade secrets, trademarks, publicity, privacy, copyrights, and patents;
(e) the code is not in the public domain;
(f) Programmer has full power and authority to make and enter into this Agreement.
(g) Programmer hereby warrants and agrees that he shall render services hereunder, promptly in a diligent, conscientious, discerning, practical and efficient manner to Programmer's best abilities, either alone or in cooperation with others.
(h) Programmer's services hereunder shall be rendered in such a manner as Producer may direct pursuant to the reasonable instructions, suggestions, and ideas of and under the control of and at the times and places required by Producer's duly authorized representatives.
(i) Programmer recognizes and accepts that the website and/or computer software code or multi-media product to be made shall be of the highest quality standards in the industry.
(j) Programmer represents and warrants the code will be free from defects and bugs, and will perform in accordance with the specifications set forth in the Deal Memo. Programmer will confirm code is bug-free and defect-free with tests to confirm proper function.
15. Remedies
It is hereby agreed that the services of Programmer to be furnished hereunder are extraordinary, unique, and not replaceable, and there is no fully adequate remedy at law for breach of this Agreement by Programmer, and in the event of such breach by Programmer, Programmer agrees that Producer shall be entitled to seek equitable relief by way of injunction or otherwise, but resort to such relief will not waive Producer's other rights.
If Producer breaches its obligations under this Agreement, the damage, if any, caused by Programmer shall not be irreparable or sufficient to entitle Programmer to injunctive or other equitable relief. Programmer hereby covenants and agrees not to make any claim or bring any suit, action, or arbitration or other proceeding which will or might interfere with or derogate from Producer's rights in the Products, or portions and modifications or code thereof hereunder, it being expressly understood and agreed that Programmer shall not have or be deemed to have any lien, charge or other encumbrance upon said Products and material and consequently, Programmer's rights and remedies shall be limited to the right, if any, to obtain damages at law and Programmer shall not have any right in such event to terminate or rescind this Agreement or any of the rights granted to Producer thereunder or to enjoin or restrain the development, production, advertising, promotion, distribution, exhibition or exploitation of the Project and/or any of Producer's rights pursuant to this Agreement.
Producer's payment of any compensation otherwise payable to Programmer hereunder shall not constitute a waiver by Producer of any Programmer default or of any rights or remedies at law or in equity which Producer may hereunder as a result of such Programmer default. The pendency of any such claim or action relieves Producer of its obligation to pay Programmer any monies due with respect to material created or services rendered by Programmer hereunder.
16. Indemnification
Programmer agrees to defend, indemnify, and hold harmless Producer, their officers, directors, sublicencees, employees and agents, from and against any claims, actions or demands, including without limitation, reasonable legal and accounting fees, alledging or resulting from the breach of any of the warranties. Producer shall provide notice to Programmer promptly of any such claim, suit, or proceeding and shall assist Programmer, at Programmer's expense, in defending any such claim, suit or proceeding.
17. Termination
Termination by Producer
Producer also may terminate this Agreement immediately in its sole discretion upon Programmer's material breach of this Agreement and/ or upon any acts of gross misconduct by Programmer directly affecting this Agreement or the independent contractor relationship.
Termination by Programmer
Programmer may terminate this Agreement for material breach at any time upon ten (10) business days prior written notice to Producer, subject to Producer's reasonable right to cure such breach. The Termination of this Agreement for any reason shall not effect Producer's ownership of any and all aspects of Products and of Programmer's services hereunder or alter any warranty, representation, covenant or undertaking on the part of Programmer hereunder.
18. Contingencies
If Programmer is prevented from performing hereunder by reason of accident, illness, or disability, (herein "Incapacity") or if Programmer otherwise refuses to fulfill any obligations hereunder (herein a "Default") then compensation shall be suspended automatically from the date of such Incapacity or Default, unless Producer elects otherwise. If Programmer fails to fully cure any default within two (2) days, Producer, at its sole discretion, can immediately terminate this Agreement without any further obligations to Programmer hereunder and Programmer must immediately give to Producer all materials and code created by Programmer hereunder including without limitation all aspects of the work, code, and/ or all revisions and versions or variations of such work, and any portion thereof.
If material to be designed hereunder is not delivered within the time herein required because of Programmer's illness or incapacity, the applicable delivery dates herein specified shall be postponed for a period of such illness or incapacity, If delivery of such material is so delayed beyond one week, Producer may have Programmer's own physician present at any such examination at Programmer's own expense.
If the development, production or completion of the Products by Producer shall be prevented or interfered with by reason of force majeure events including but not limited to any strike, lockout, or other labor dispute, or any other events beyond the control of Producer, Producer may suspend the operation of this Agreement during the continuance of such event, and if any such event shall continue for four weeks or more, Producer may terminate Programmer's engagement hereunder as to all services not theretofore delivered with no further obligation to Programmer. During such suspension, Programmer shall not be obligated to supply his services hereunder, and Producer shall not be obligated to accept or pay for any material tendered by Programmer. All applicable delivery dates and other dates herein specified shall be postponed, and all periods extended for a period equivalent to the period of such suspension, unless Producer shall terminate Programmer's engagement hereunder as aforesaid. If such suspension has continued for four (4) weeks or more, Programmer may terminate his engagement as to all material not theretofore delivered, by written notice to Producer, but such notice shall have no effect unless Producer fails to end the suspension within (5) business days after receipt thereof.
If any material to be designed or created hereunder is not delivered to Producer within the time required by agreements with licensees or other schedules, for any reason whatsoever, other than referred to above, Programmer shall be deemed to be default hereunder, If such default is not cured by delivery to Producer of the material involved within two (2) business days after receipt of written notice from Producer of such default, Producer may terminate Programmer's engagement hereunder as to material not so delivered and Programmer must immediately deliver to Producer all materials created hereunder, including without limitation the Products, and/ or all portions and/ or revisions/ versions or code thereof. If any payments have been made hereunder with respect to material which is not delivered for any reason, and if this Agreement is terminated before such delivery, Programmer shall be obligated to refund to Producer the full amount of such payments upon Producer's written demand therefore, but such payment shall not relieve Programmer from liability for damages which may be suffered by Producer as a result of Programmer's default, or affect any other rights or remedy of Producer at law or in equity.
19. Miscellaneous
Nothing in this Agreement obligates Producer to utilize or exploit any of the services rendered by Programmer in any way. Programmer acknowledges the right of Producer to make any changes in the Product regarding any aspect of Programmer's services hereunder in the preparation and exploitation of any Product, derivative work or advertising or publicity material based upon or incorporating such product. Without limiting the generality of of the foregoing , Producer shall have artistic control over the right to digitize, translate, cut, edit, add to, subtract from, modify, and revise the Product of any of the Programmer's services hereunder in any manner.
20. Arbitration
Any claim, dispute, or controversy arising out of or in connection or arising out of this Agreement or the breach or alleged breach thereof will be submitted to AAA binding arbitration in the City of {} and governed by the laws of the State of {}. The decision of the arbitrator shall be binding upon the Parties to this Agreement and the award rendered will include costs of arbitration, reasonable attorney fees, and other reasonable costs associated with this proceeding, and judgment on such award may be entered in any court having jurisdiction thereof. This Agreement shall be construed in accordance with the laws of the State of {} applicable to agreements which are executed and fully performed within the State of {}
21. General Provisions
Programmer may not assign its rights or obligations arising under this Agreement without Producer's prior written consent. Producer may assign its rights and obligations under this Agreement, in whole or in part, to any party provided that such party assumes and agrees in writing to keep and perform all the executory obligations of Producer hereunder, and in such event Producer shall then be released from any and all obligations hereunder. This Agreement will be for the benefit of Producer's successors and assigns, and will be binding on Programmer's heirs, legal representatives and permitted assignees.
22. Entire Agreement
This Agreement contains the entire understanding of the Parties and shall replace and supersede all previous arrangements, understanding, representations or agreements (written or oral, express or implied) between the Producer and Programmer with respect to the subject matter hereof and expresses the entire agreement Producer and Programmer with reference to the terms and conditions of Programmer's services for Producer in connection with the Project. This Agreement supersedes and incorporates all aspects of any and oral agreements that have preceded the execution of this Agreement, and any work on the Products or work leading to the creation thereto which has been done under any oral agreement is assigned to and is the property of Producer.
This Agreement will be governed by and construed in accordance with the laws of the United States and the State of {} as applied to agreements entered into and to be performed entirely within {State of } residents.
This Agreement and the Deal Memo, constitutes the entire Agreement between parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.
No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a waiver of, or excuse of any other, different, or subsequent breach by either party.
No modification of any provision hereof shall be valid or binding unless in writing. No officer, employee or representative of Producer has any authority to make any representation or promise not contained in this Agreement and Programmer expressly agrees that he has not executed this agreement in reliance on any such representation or promise.
The failure of a single provision of this Agreement to be enforceable does not void the enforceability of entire Agreement.
All of the foregoing provisions shall survive termination or expiration of this Agreement and are subject to the additional terms and conditions attached hereto in the document on Webmaster letterhead entitled WebMaster Design Deal Memo & Exhibits which are incorporated herein by reference.
This Agreement is effective as of the month of:, and will terminate on the month:,, unless terminated earlier in accordance with the Agreement.
By filing in and signing the spaces below, Programmer and Producer accept and agree to all of the terms and conditions of this Agreement.
WEBMASTER Design Deal Memo & Exhibits Part 1 of 2
Select Your Relationship"PROGRAMMER""PRODUCER"is hired to design, program, architect, and implement forms to work for the website named for the amount of $250 flat one time. Tools includes without limitation code such as HTML, Java, CGI, Perl, Javascript, Shttp, XML, VRML, C++, FoxPro, and other languages, source code, and resource material. Part 2 of this Memo are attached and numbered as Exhibits.