Independent Contractor Agreement


This Independent Contractor Agreement (the “Agreement”) is effective as of  (the “Effective Date”), by and between  (the “Contractor”) with an address at  and Five Tier, Inc., a New York Corporation, a technology company, on behalf of the company and its affiliated companies (collectively, the “Company”), having a place of business at 120 East 23rd Street, 5th Floor, New York, NY 10010.

WITNESSETH

WHEREAS, Contractor wishes to provide certain professional services to Company; and

WHEREAS, Company wishes to procure such services from Contractor, for good and valuable consideration.

NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows:

  1. SCOPE OF WORK. Company agrees to retain Contractor on a non-exclusive basis to provide professional services (“Services”) relating to a specific project and/or assignment, as set forth in Appendix A which is attached hereto and is incorporated herein by reference. Contractor agrees to employ all reasonable efforts to meet Company’s assignment deadlines and documentation standards, as applicable. Company shall assign an employee (the “Manager” identified in Appendix A) to manage and/or coordinate the project and/or assignment.  The Manager shall be responsible for monitoring Contractor’s progress and for the review and approval of out-of-pocket expenses and invoice documentation. Unless otherwise agreed upon, Contractor shall meet with the Manager every two weeks to discuss and review the progress of the project and/or assignment and to report on and deliver work completed during the preceding two weeks.  

  2. TERM.  This Agreement shall commence on the Effective Date and shall terminate upon either the completion of the specific project and/or assignment, or one (1) year from the Effective Date.  Both parties may agree, in writing, to renew this Agreement for an additional one (1) year period by revising the appendices attached hereto to describe the additional project and/or assignment, to set forth the services to be rendered, and to reflect the associated fees.

  3. PAYMENT FOR SERVICES.

    (a) Company agrees to compensate Contractor in accordance with the fee estimate set forth in Appendix A. Contractor agrees to submit to the Manager an itemized invoice for the Services rendered during the term of this Agreement. Contractor agrees to maintain the necessary records to ascertain the accuracy of these invoices.

    (b) All travel by Contractor must be necessary, cost effective, and authorized in advance by the Manager, in accordance with Company’s expense guidelines.  Company will reimburse Contractor’s approved business expenses at cost.  

  1. INDEPENDENT CONTRACTOR. The parties expressly understand and agree that Contractor is an Independent Contractor and shall not be considered for any purpose to be an employee of Company.  Apart from the payment of the agreed upon fees as outlined in Section 3, Company is not responsible for any other compensation, nor for employee benefits and/or matters relating thereto (including but not limited to the withholding and/or payment of federal, state and local income and other payroll taxes) nor for Workers’ Compensation, disability benefits or any other legal requirements of a similar nature.

  2. PROPRIETARY RIGHTS; NON-SOLICITATION.

    (a) Contractor hereby agrees that all information, reports, studies, charts, plans, diagrams, presentations and any other tangible or intangible information, deliverables and all inventions, discoveries, improvements, specifications, designs, methods, devices, writings, compilations of information, and/or materials developed, produced, conceived, or reduced to practice hereunder (collectively the “Work Product”), shall be the sole and exclusive property of Company and shall be deemed “works made for hire”, of which Company shall be deemed the author and shall be the exclusive owner.   

    (b) Contractor also hereby agrees, with respect to any Work Product or Invention (with “Invention” meaning inventions, discoveries or business methods, systems or processes made or conceived by Contractor (either solely or jointly with another or others) in performance of this Agreement or based on or resulting from Contractor’s access to Confidential Information), to (i) apply at Company’ request and expense for US and foreign patents or copyrights or other forms of protection, as the case may be, either in Contractor’s name or otherwise as Company shall desire; (ii) assign and hereby does assign to Company all of Contractor’s rights to each such Work Product or Invention, including complete, unconditional, and world-wide ownership of any and all intellectual property rights subsisting therein; (iii) execute and deliver promptly to Company at Company’s request and at Contractor’s normal rates written instruments (including but not limited to patent and copyright applications), and do such other acts, as may be required to perfect Company’s interests in such intellectual property rights, Work Product, and Inventions, and to vest the entire right and title of same in Company.

    (c) Company shall have the royalty-free right to use in its business, and to use, make, have made, sell, have sold, import, and have imported products, processes, business methods, and/or services derived from any inventions, discoveries, concepts and/or ideas conceived or made by Contractor (whether or not patentable) as well as any improvements thereto or know-how related thereto which are conceived or made by Contractor with the use or assistance of Company’ facilities, materials, or personnel.

    (d)  During the term of this Agreement and for the one-year period thereafter, Contractor shall not:  (i) solicit employment of, (ii) offer employment to, or (iii) hire as an independent contractor, any person who is a Company employee or independent contractor for Company or who was a Company employee or independent contractor for the Company in the past six months.

  1. WARRANTY AND INDEMNIFICATION.  Contractor hereby represents and warrants the following: (a) that the Work Product and/or Services provided hereunder, or the use of any of the foregoing, do not infringe any patent, utility model, industrial design, copyright, trade secret, trademark or any other third party right; (b) that Contractor will not use, rely on, or incorporate any pre-existing intellectual property, already owned by Contractor or others, into any Work Product or Invention without first informing Company in writing and receiving Company’ advance written permission to do so; (c) that the Work Product will perform according to the Specifications set forth in Appendix A. Contractor will at all times defend, indemnify and hold harmless Company and its officers, agents, employees, successors, assignees and licensees from and against any and all claims, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, arising out of (x) any breach or alleged breach by Contractor of any representation, warranty or agreement made by Contractor herein; (y) the use or dissemination of any materials furnished by Contractor hereunder; or (z) any acts done by Contractor in connection with Contractor’s services hereunder.

  2. CONFIDENTIAL INFORMATION.

    (a) “Confidential Information” means all business and technical information whether disclosed in writing, orally, or in any other form, tangible or intangible, including but not limited to: (1) information concerning inventions, discoveries, concepts, brainstorming, ideas, techniques, processes, designs, specifications, drawings, diagrams, models, samples, flow charts, computer programs, algorithms, data, finances and financial plans, customer lists, business plans, contracts, marketing plans, production plans, distribution plans, system implementation plans, business concepts, supplier information, business procedures, business processes, business operations, all know-how and intellectual property, and any/all materials related thereto; and (2) any information or materials that either party obtains from any third party that the obtaining party treats as proprietary or designates as confidential, whether or not owned by the obtaining party.

    (b) Exceptions.  Both parties agree that information will not be considered Confidential Information to the extent, but only to the extent, that such information: (i) is already known to the receiving party prior to signing this Agreement; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received by the receiving party from a third party without restriction and without breach of this Agreement; or (iv) is independently developed by the receiving party, and such development can be demonstrated by written record.

    (c) Contractor agrees not to disclose, reveal or otherwise release any Confidential Information obtained, developed or disclosed in the performance of Services hereunder, whether oral or written, to any third party, or directly or indirectly use such Confidential Information, other than in performance of this Agreement, unless Contractor has obtained Company’s prior written consent.

    (d) Contractor further agrees not to disclose any Confidential Information to, or assign any employee, subcontractor, or agent to provide Services hereunder unless said employee, contractor, or agent has entered into an agreement with Contractor, pursuant to which they are bound to the confidentiality provisions of this Agreement, to the same extent that Contractor is bound. 

    (e) Contractor shall not disclose to Company, use in Company’ business, or cause Company to use, any information that Contractor has received in confidence from a third party or under an obligation of confidentiality or non-use, except to the extent permitted by such third party.

  1. LIMITATION OF LIABILITIES.  IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CLAIM RELATING TO THIS AGREEMENT IN EXCESS OF THE FEES AND EXPENSES PAID BY COMPANY TO CONTRACTOR HEREUNDER.  IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  2. TERMINATION.  Company may terminate this Agreement at any time, upon prior written notice.  Contractor may terminate this Agreement for material breach that remains uncured after fifteen (15) days prior written notice.  Contractor shall be paid for all work which was authorized by Company prior to such notice of termination and which is completed by the Contractor before the effective date of said termination. Upon completion of the project and/or assignment or upon any termination of this Agreement, Contractor agrees that Contractor, Contractor’s employees, subcontractors and agents shall turn over to Company the Work Product and any other deliverables in their then current condition and shall return to Company all documents, data and materials and copies thereof supplied to Contractor in connection with this Agreement.

  3.  TAXES.  The fees and/or charges reflected in Appendix A hereof, are exclusive of any sales, use, personal property, value-added and good/services taxes.  When applicable, said taxes will appear as a separate item on Contractor’s invoice and Company shall be liable for payment of such taxes to Contractor. Notwithstanding the foregoing, Company shall not be responsible for any foreign, federal, state or local taxes based on the net income or receipts, or any other such taxes based on Contractor’s doing business in a particular jurisdiction.

  4. PUBLICITY.  Contractor agrees not to use the name of Company in any external sales or marketing publication or advertisement, without the prior written consent of Company.  Contractor also agrees not to make any public disclosure, except as may be legally required, relating to this Agreement or Company, its subsidiaries, or affiliates, without obtaining the prior written consent of Company.

  5. GENERAL PROVISIONS.

    (a) Paragraph Headings.  Paragraph headings are for convenience only and shall not be a part of the Terms and Conditions of this Agreement.

    (b) Waiver.  Failure by either party at any time to enforce any obligation by the other party, to claim a breach of any term of this Agreement, or to exercise any power agreed to hereunder will not be construed as a waiver of any right, power or obligation under this Agreement, will not affect any subsequent breach, and will not prejudice either party as regards any subsequent action.  

    (c) Severability.  If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain unimpaired and in full force and effect.  

    (d) Subcontractors/Agents.  Company reserves the right of approval of all subcontractors and/or agents, which approval will not be unreasonably withheld by Company.  Approval of any subcontractor and/or agent by Company shall not constitute the superseding or waiver of any right of Company to reject work, which is not in conformance with its standards or this Agreement.  Contractor shall be fully responsible for Contractor’s subcontractors and/or agents.  Nothing in this Agreement shall be construed to create any contractual relationship between Company and any subcontractor and/or agent, nor any obligation on the part of Company to pay or to see to the payment of any money due any subcontractor and/or agent as may otherwise be required by law.

    (e) Assignment.  Contractor may not assign any of Contractor’s rights or obligations under this Agreement without the Company’s prior written consent.  Any assignment in violation of this provision shall be void ab initio.

    (f) Modification.  No modification, waiver or amendment of any term or condition of this Agreement shall be effective unless and until it shall be reduced to writing and signed by both of the parties hereto or their legal representatives.

    (g) Survival.  The provisions of this Agreement that by their nature and content are intended to survive the performance hereof shall so survive the completion and termination of this Agreement.  Without limiting the generality of the foregoing, Sections 3 through 12 of this Agreement shall so survive.

    (h) Successors and Assigns.  This Agreement shall be binding upon the respective successors, assigns, heirs, and representatives as the case may be, of Contractor and Company.

    (i) Governing Law.  This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of New York without regard to its conflict of laws principles.  The parties further agree that any cause of action arising under this Agreement shall be brought in a court in New York, New York.

    (j) Complete Agreement.  This Agreement, together with Appendix A, constitutes the entire agreement of the parties with respect to this subject matter and may not be modified in any way except by written agreement signed by both parties.  There are no other agreements either express or implied with regard to this subject matter.

IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers, have executed this Agreement as of the effective date first set forth above.

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Signed by Frank O\'Brien O'Brien
Signed On: September 18, 2017

Five Tier, Inc. https://www.fivetier.com
Signature Certificate
Document name: Independent Contractor Agreement
Unique Document ID: efd8a8701002f327e3c4398d4cc9ca6d0218a8f7
Timestamp Audit
September 18, 2017 6:25 pm ESTIndependent Contractor Agreement Uploaded by Frank O'Brien - frank.obrien@fivetier.com IP 104.162.193.170