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Consulting agreement - ownership of work

Discussion in 'Employment, Labor, Work Issues' started by master35, Jan 3, 2010.

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  1. master35

    master35 Law Topic Starter New Member

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    Pls advice -especially with regards to ownership of work point 5 - is it limited to the work i am consulted to do or expands to anything i do in any field
    and survival point 13
    thanks a lot
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    Agreement -
    4. Independent Contractor. It is understood and agreed that the Consultant shall perform Services hereunder as an independent contractor. The Consultant shall not be deemed to be an employee of the Company. The Consultant shall not be entitled to any employment rights or benefits, and the Company will make no deductions from any of the payments due to the Consultant hereunder for local, state or federal tax purposes.
    5. Ownership of Work.
    (a) The Consultant agrees that all Work (as herein defined) shall be and remain the property of the Company. “Work” shall mean all ideas, product development, marketing and sales plans, inventions, research, computer programs and software (including, without limitation, source code and
    object code), know-how, trade secrets, proprietary information, documents, data, text, artwork, graphic design, developments, discoveries, improvements, modifications, technology, algorithms, system
    architecture, and any preliminary drafts, sketches, variations or designs thereof, and other information of possible technical or commercial importance, whether or not subject to patent or copyright protection,
    made, conceived, expressed, developed, or actually or constructively reduced to practice by the Consultant, solely or jointly with others, in connection with any services performed hereunder.
    (b) The Consultant acknowledges that all of said Work shall be considered to be “work made for hire” under the U.S. Copyright Act, 17 U.S.C. §101 et seq., and shall be owned exclusively by the Company. To the extent that any such Work, or any portion thereof, is not construed as “work made for hire” under applicable law, the Consultant hereby assigns to the Company all right, title and interest, including, without limitation, any copyright or other intellectual property rights, in such Work, in perpetuity, in all forms and in all languages and territories throughout the world. The Company
    shall have the exclusive right to use Work, whether original or derivative, for all purposes, including all rights under copyright and the exclusive rights to print, publish and distribute Work in any form or
    medium, whether now known or hereafter created throughout the world including, but not limited to, all
    formats of electronic, magnetic, digital, laser, or optical-based media, and in connection with any
    advertising or promotion thereof, and in all languages and territories, together with the right to make such
    changes to, and derivative works of, Work as the Company deems appropriate.
    (c) During the term of this Agreement and at all times thereafter, the Consultant
    shall, at the Company’s expense, assist the Company in every proper way to protect, enforce and perfect
    the Company’s rights and interests in Work throughout the world, and to execute all documents required
    for the protection of all such rights and interests, including, without limitation, patent, copyright,
    trademark and other applications and assignments relating to Work. The Consultant hereby designates
    and appoints the Company and its duly authorized officers and agents as the Consultant’s agents and
    attorneys-in-fact to execute and file any certificates, applications or documents and to do all other lawful
    acts necessary to obtain and protect the Company’s rights in Work. The Consultant expressly
    acknowledges that the foregoing power of attorney is coupled with an interest and is irrevocable and
    shall survive termination of this Agreement, the Consultant’s death or the Consultant’s incompetency.
    (d) The Consultant warrants and represents that: (i) the Consultant has the right to
    grant the rights set forth in this Section 5; (ii) the Consultant has no contractual commitment of any kind
    which may prevent or interfere with the performance of the Consultant’s obligations under this
    Agreement; (iii) the Consultant’s Work does not contain any unlawful, libelous or defamatory matter;
    and (iv) the Consultant’s Work does not and will not infringe upon the rights of any other person or
    entity.
    (e) The Consultant may not post, distribute or otherwise make public any Work
    without the express prior consent of the Company.
    (f) The Consultant will save all written material on the Company’s computers if and
    as directed by the Company.
    6. Confidential Information.
    (a) The Consultant acknowledges that the Consultant has acquired or may acquire
    Confidential Information (as herein defined) and that communication of such Confidential Information to
    third parties could irreparably injure the business of the Company. Accordingly, the Consultant shall not,
    at any time either during or after the term of this Agreement, directly or indirectly, use or cause to be used
    any such Confidential Information in connection with any activity or business except the business of the
    Company or an affiliate of the Company, and shall not disclose any such Confidential Information to any
    third party, unless such disclosure has been specifically authorized in writing by the Company, or except
    as may be required by any applicable law or by order of a court of competent jurisdiction, or a regulatory
    or governmental body having jurisdiction over the Consultant, provided that the Consultant shall give the
    Company prompt notice of any such order so as to give the Company adequate opportunity to object to
    such order.
    (b) Upon (i) termination of this Agreement for any reason, (ii) termination of the
    Consultant’s access to Confidential Information or (iii) the earlier request of the Company, the Consultant
    shall return to the Company all originals and copies of materials belonging to the Company, whether kept
    3
    at the Consultant’s business office, personal residence or otherwise, including all materials containing any
    Confidential Information, in any tangible and, to the extent practicable, intangible form, that the
    Consultant may have in his possession or control.
    (c) “Confidential Information” shall mean all the Company’s proprietary
    information, technical data, trade secrets, and know-how, including, without limitation, research, product
    development and marketing plans, supplier and customer lists, distribution channels, computer software,
    computer programs, developments, inventions, discoveries, concepts, methods, processes, formulae,
    algorithms, technology, designs, drawings, inventory and financial data and information, including, but
    not limited to, Work, whether or not marked as “Confidential.” “Confidential Information” shall also
    mean information received by the Company from customers and clients of the Company or other third
    parties, subject to a duty of confidentiality.
    8. Injunctive Relief. The Consultant acknowledges and agrees that any breach of the
    provisions of Sections 5, 6 or 7 of this Agreement would result in irreparable injury and damage to the
    Company, for which money damages would not provide an adequate remedy, and that, in addition to any
    other remedies the Company may have at law or in equity, the Company shall be entitled to have such
    provisions specifically enforced (without posting bond and without the need to prove damages) by any
    court of competent jurisdiction, including, without limitation, imposition of reasonable attorneys’ fees.
    9. Reasonableness of Restrictions. The parties recognize and acknowledge that the
    restrictions on activities contained in Sections 5, 6 and 7 of this Agreement are reasonable and that if any
    of such restrictions are for any reason held by a court or other tribunal of competent jurisdiction to be
    excessively broad as to duration, geographical scope, activity or subject, such restrictions shall be
    construed so as to thereafter be limited or reduced to be enforceable to the greatest extent compatible with
    the applicable law.
    10. Indemnification. Each party hereto (the “Indemnitor”) shall defend, indemnify and hold
    harmless the other party hereto and his, her or its directors, officers, employees, agents and subcontractors
    (collectively, the "Indemnified Parties") from and against any and all claims, damages, expenses, and losses of
    any kind whatsoever that may be incurred by, imposed upon or asserted or awarded against an Indemnified
    Party related to or arising out of any and all acts or omissions of the Indemnitor or his, her or its officers,
    directors, shareholders, agents, employees or contractors. Such Indemnified Party will give the Indemnitor
    prompt written notice of the existence of any such event of which the Indemnified Party becomes aware.
    The Indemnitor will give such Indemnified Party an opportunity to participate in the defense thereof at
    the Indemnified Party’s expense. More specifically, the Consultant hereby indemnifies the Company and
    its directors, officers, employees, agents and subcontractors, and shall defend and hold them harmless,
    against any claim that Work created by the Consultant, or any person retained by the Consultant to create
    Work, or perform services with respect to Work, is not owned by the Company.

    13. Survival. All terms and conditions of employment which should by their nature survive
    the termination of this Agreement shall so survive.
    14. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
    of both the Consultant and the Company and their respective assigns, successors, heirs, and legal
    representatives; provided, however, that neither this Agreement nor any rights hereunder may be assigned
    or delegated by the Consultant, the Consultant’s successors, heirs or legal representatives without the
    prior written consent of the Company.
    16. Entire Agreement. This Agreement is the entire agreement between the parties with
    respect to the subject matter hereof and supersedes any and all prior agreements and communications
    (both written and oral) between the Consultant and the Company relating generally to the same subject
    matter. This Agreement may be modified, or any rights under it waived, only in a writing signed by the
    party against whom enforcement of such modification or waiver is sought.
     
  2. Patricia_Young

    Patricia_Young New Member

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    Nobody is going to read all that. However, just looking at the first couple of sentences of #5, that is not unusual in an IC arrangement. You are producing work FOR the company, for which the company is paying you. If you want a full answer, I suggest you take the entire contract to an attorney versed in this area.
     
  3. Green_Hornet

    Green_Hornet New Member

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    Did you invent something as a sub-contractor?
     
  4. chrisrich

    chrisrich New Member

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    I agree that this looks pretty standard for consulting in your field. I just had to review something very similar for a friend, he's also looking into Los Angeles IT Consulting and was really freaked about the same things in his contracts.

    He's got some great experience and methods that he's honed and wouldn't want to join a company, improve their work flow, and then get sued for using the same techniques with another company later on.

    Obviously he has to make the choice when working for a company with limited potential as to how much he wants to share, especially if he can see the end of his work term laid out in front of him.

    On section 13 Survival:
    ...it's a bit vague in nature but it's intent is pretty clear. They don't want you to consider that the conditions are void/dead if the employment ends. Ie: you can't invent/produce something that was covered under the contract simply because the employment ends.

    Most IT companies are shoring up to prevent people from joining on to their team just long enough to extract all the good ideas they have and then go off to another company or go solo with those assets. Makes perfect sense.

    With the rough job market I wouldn't get too panicked by contracts, most employers respect a once-over but any notable panic may look like you're planning an exit strategy before you even get your feet wet.

    Food for thought?
     
    master35 likes this.

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