THIS AGREEMENT shall be effective on the date hereof (“Effective Date”) and shall continue in effect until the Company shall have given written notice of cancellation to LEADRUSH LLC., a Colorado limited liability company (“Contractor”). This Agreement will automatically renew for successive monthly terms unless one party provides written notice to the other party 30 days prior to the monthly renewal date that the agreement will not be renewed. Each party to this Agreement has the option to terminate this Agreement at any time and at any renewal period, without penalty, upon 30 days prior written notice.
1. ENGAGEMENT OF SERVICES. Company may from time to time submit a Statement of Work (“SOW”) to Contractor substantially in the form of Exhibit A to this Agreement. Subject to the terms of this Agreement, Contractor will provide the services set forth in each SOW accepted by Contractor (the “Project(s)”) by the completion dates set forth therein. The manner and means that Contractor chooses to complete the Projects are in Contractor’s sole discretion and control. Contractor shall perform the services necessary to complete the Projects in a timely and professional manner consistent with industry standards and at a location, place and time that Contractor deems appropriate. In completing the Projects, Contractor agrees to provide its own equipment, tools, and other materials at its own expense.
2.1 Fees. Company will pay Contractor the fee or other consideration specified in each SOW as Contractor’s sole compensation for the Project, provided such Project meets the terms of the SOW and this Agreement. Contractor shall be responsible for all expenses incurred in performing services under this Agreement, except as set forth in the SOW. Upon termination of this Agreement for any reason prior to completion of an SOW, Company will pay Contractor fees and expenses or other consideration on the basis stated in the SOW for work which is then in progress within 30 days of the later of Contractor’s invoice and the effective date of such termination.
2.2 Invoicing. Unless otherwise provided in the applicable SOW, (a) payment to Contractor of undisputed fees, if any, will be due 30 days following Company’s receipt of an invoice which contains accurate records of the work performed sufficient to document the invoiced fees; and (b) Contractor will submit invoices to Company upon completion of the milestones specified in the applicable SOW or, if no such milestones are specified, on a monthly basis for services performed in the previous month.
3. INDEPENDENT CONTRACTOR RELATIONSHIP. Contractor’s relationship with Company will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer employee relationship. Contractor (a) is not the agent of Company; (b) is not authorized to make any representation or contract; (c) will not be entitled to any of the benefits that Company makes available to its employees, such as group insurance, profit-sharing or retirement benefits (and waives the right to receive any such benefits); and (d) will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, local or international tax authority with respect to Contractor’s performance of services and receipt of fees under this Agreement. Company will provide, and Contractor will
complete, such forms as may be required by law to file with the Internal Revenue Service, including but not limited to, as applicable, a Form 1099-MISC and/or Form W-8BEN-E.
Contractor agrees to accept exclusive liability for complying with all applicable state, federal and international laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Contractor under this Agreement. Company will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Contractor’s behalf. Contractor hereby agrees to indemnify and defend Company against any and all such taxes or contributions, including penalties and interest. Contractor agrees to provide proof of payment of appropriate taxes on any fees paid to Contractor under this Agreement upon reasonable request of Company.
4. OWNERSHIP AND LICENSES.
4.1 Company Owns All Work Product. As part of this job, the Contractor is creating “work product” for the Company . To avoid confusion, work product is the finished product, as well as drafts, notes, materials, mockups, hardware, designs, inventions, patents, code, and anything else that the Contractor works on—that is, conceives, creates, designs, develops, invents, works on, or reduces to practice—as part of this project, whether before the date of this Contract or after. The Contractor hereby gives the Company this work product once the Company pays for it in full. This means the Contractor is giving the Company all of its rights, titles, and interests in and to the work product (including intellectual property rights), and the Company will be the sole owner of it. The Company can use the work product however it wants or it can decide not to use the work product at all. The Company , for example, can modify, destroy, or sell it, as it sees fit.
4.2 Contractor's Use Of Work Product. Once the Contractor gives the work product to the Company , the Contractor does not have any rights to it, except those that the Company explicitly gives the Contractor here. The Company gives permission to use the work product as part of portfolios and websites, in galleries, and in other media, so long as it is to showcase the work and not for any other purpose.
5.1 Overview. This section transfers certain risks between the parties if a third party sues or goes after the Company or the Contractor or both. For example, if the Company gets sued for something that the Contractor did, then the Contractor may promise to come to the Company’s defense.
5.2 Company Indemnity. In this Contract, the Contractor agrees to indemnify the Company (and its affiliates and their directors, officers, employees, and agents) from and against all liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of: (i) the work the Contractor has done under this Contract; (ii) a breach by the Contractor of its obligations under this Contract; or (iii) a breach by the Contractor of the promises it is making in Section 5 (Representations).
5.3 Contractor Indemnity. In this Contract, the Company agrees to indemnify the Contractor (and its affiliates and their directors, officers, employees, and agents) from and against liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of a breach by the Company of its obligations under this Contract.
5.4 Hold Harmless. Company shall indemnify, defend and hold harmless the Contractor and their respective officers, representatives, agents, servants, employees, successors and assigns from and against any and all: (a) Claims arising directly or indirectly from the acts or omissions of Contractor or Contractor Parties in connection with the Contract (collectively, the “Acts”); and (b) liabilities, damages, losses, costs and expenses, including, but not limited to, attorneys’ and other professionals’ fees, arising, directly or indirectly, in connection with Acts.
6. CONFIDENTIAL INFORMATION.
6.1 Overview. This Contract imposes special restrictions on how the Company and the Contractor must handle confidential information. These obligations are explained in this section.
6.2 The Company’s Confidential Information. While working for the Company, the Contractor may come across, or be given, Company information that is confidential. This is information like customer lists, business strategies, research & development notes, statistics about a website, and other information that is private. The Contractor promises to treat this information as if it is the Contractor's own confidential information. The Contractor may use this information to do its job under this Contract, but not for anything else. For example, if the Company lets the Contractor use a customer list to send out a newsletter, the Contractor cannot use those email addresses for any other purpose. The one exception to this is if the Company gives the Contractor written permission to use the information for another purpose, the Contractor may use the information for that purpose, as well. When this Contract ends, the Contractor must give back or destroy all confidential information, and confirm that it has done so. The Contractor promises that it will not share confidential information with a third party, unless the Company gives the Contractor written permission first. The Contractor must continue to follow these obligations, even after the Contract ends. The Contractor's responsibilities only stop if the Contractor can show any of the following: (i) that the information was already public when the Contractor came across it; (ii) the information became public after the Contractor came across it, but not because of anything the Contractor did or didn’t do; (iii) the Contractor already knew the information when the Contractor came across it and the Contractor didn’t have any obligation to keep it secret; (iv) a third party provided the Contractor with the information without requiring that the Contractor keep it a secret; or (v) the Contractor created the information on its own, without using anything belonging to the Company .
6.3 Third-Party Confidential Information. It’s possible the Company and the Contractor each have access to confidential information that belongs to third parties. The Company and the Contractor each promise that it will not share with the other party confidential information that belongs to third parties, unless it is allowed to do so. If the Company or the Contractor is allowed to share confidential information with the other party and does so, the sharing party promises to tell the other party in writing of any special restrictions regarding that information.
7. NON-SOLICITATION. Contractor expressly recognizes and acknowledges that during any Term and during Contractor's involvement with the Company, Contractor will be given access to, and will benefit from, the Confidential Information. In order to protect this valuable Confidential Information, Contractor agrees that for a period of twelve (12) months after termination or expiration of this Agreement and Contractor's involvement with the Company, Contractor will not, directly or indirectly, without the prior written consent of the Company, either individually or in conjunction with any person, firm, partnership, limited liability company, trust, corporation or any other entity, directly or indirectly:
7.1 contact or solicit any customers of the Company who were customers of the Company any time during the twelve (12) months preceding Contractor's cessation of involvement with the Company for the purpose of diverting any existing or future business of such customers to a competing source, or
7.2 contact or solicit any employees or consultants of, or vendors to, the Company for the purpose of causing, inviting or encouraging any such employee, consultant, or vendor to alter or terminate his, her, or its employment or business relationship with the Company.
8.1 Term. The term of this Agreement shall be from the Effective Date until 90 days from the Effective Date unless earlier terminated pursuant to the provisions of Sections 7.2 below. The term of this Agreement shall automatically be extended without further action by the parties by additional 90 day terms unless either party notifies the other party of its intention to termination within 30 days of the end of the then-current term.
8.2 Termination. Company may terminate this Agreement without cause at its convenience upon 30 days’ prior written notice to Contractor. Contractor may terminate this Agreement at any time upon 30 days’ prior written notice to Company. Company will pay Contractor only those fees and expenses related to services actually performed during such notice period, as specified in the SOW.
9. GENERAL PROVISIONS
9.1 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.2 Modification; Waiver. To change anything in this Contract, the Company and the Contractor must agree to that change in writing and sign a document showing their contract.
9.3 Signatures. The Company and the Contractor must sign this document using an e-signing system. These electronic signatures count as originals for all purposes.
9.4 Credit Card Authorization. By providing your credit card information, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your subscription (including any applicable taxes and other charges) for the duration of the agreement and any subsequent terms. If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your access to the Service may be suspended or canceled.
9.5 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the signature page, by courier, by certified or registered mail
(postage prepaid and return receipt requested), or by a nationally-recognized express mail service, or by e-mail at the designated e-mail address listed on the signature page for each party. Notice will be effective upon receipt or refusal of
delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address or e-mail address for receipt of notice by giving notice of such change to the other party.
9.6 No Assignment. This Agreement, and Contractor’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Contractor without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
9.7 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by Contractor and the Authorized Officer of the Company. The terms of this Agreement will govern all SOWs and services undertaken by Contractor for Company. In the event of any conflict between this Agreement and a SOW, the terms of the SOW shall govern, but only with respect to the services set forth therein.
9.8 Waiver Of Jury Trial. In any action, suit, or proceeding in any jurisdiction brought by any party against any other party, the parties each knowingly and intentionally, to the greatest extent permitted by applicable law, hereby absolutely, unconditionally, irrevocably and expressly waives forever trial by jury.
9.9 Governance. This Agreement is entered into pursuant to and under the authority granted by the laws of the state of Colorado and any applicable federal laws. The provisions of this Agreement shall be construed to conform to those laws. In the event of an inconsistency in the terms of this Agreement, or between its terms and any applicable statute or rule, the inconsistency shall be resolved by giving precedence in the following order:
1. Applicable state and federal statutes and rules;
2. The terms of this Agreement;
3. Any other provisions of the Agreement, including materials incorporated by reference.
9.10 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of Colorado, without regard to the conflicts of laws principles thereof. To the extent of any disagreement or matter relating to this Agreement shall be exclusively submitted to the federal or state courts located in the City of Denver.
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