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RE: [PLUG] intellectual property, code, employment laws, etc
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Marc et al:
I also am not a lawyer, and so this message does not constitute legal
advice! I do, however, concur with the opinions of the other knowledgable
repondents. It is wise to be wary in this greed dominated world. Many nicely
dressed slave merchants will smile as they present you with the opportunity
to become an intellectual property slave for life. Sometimes they aren't
even offering a real job in exchange for your signature on your 24-7 slave
contract!
To prove my point, I've pasted (from M$-Word...with apology for lost
formatting) the contends of a contract that I recently refused. I have
signed a very similar contract in the past in exchange for full time
employment by a major pharmaceutical company. This one was presented to me
AS AN INDEPENDENT CONTRACTOR by a far less prestigious firm. I have inserted
some of my objections
<bracketed thus>
Although I was getting very desperate for work at the time, I returned a
modification of the orginal M$-Word formatted contract along with a
rejection letter to the company that offered me this wonderful prospect of
indentured servitude. Fortunately, other opportunities have come along that
do not require me to sell my manhood (and they pay better to boot!) I urge
everyone without infants to feed to resist collaboration with the enemy in
the war to enslave you. Do not take your freedoms for granted, nor offer
them in exchange for crumbs.
The name of the rejected employer has been deleted; the content is otherwise
unchanged.
-mike.h
___________________________________________________________________________
INDEPENDENT SUB-CONTRACTOR AGREEMENT
THIS AGREEMENT dated as of October 30, 2002 between <employer deleted> (the
"Contractor"), and <deleted> (the "Sub-Contractor").
Witnesseth:
WHEREAS, Contractor is engaged in the business of providing IT Training,
Mentoring and Consulting services; and
WHEREAS, it is the Contractor's desire to engage the Sub-Contractor to
perform for the Contractor certain training/mentoring/consulting services;
and
WHEREAS, it is the Sub-Contractor?s desire to perform training, mentoring
and consulting activities for Contractor; and
WHEREAS, the parties wish to set forth in writing the terms and conditions
of this independent contractor engagement.
NOW THEREFORE, in consideration of the promises contained in this Agreement,
and INTENDING TO BE LEGALLY BOUND, the parties agree as follows:
Section 1. Term. The Contractor engages the Sub-Contractor as set forth in
this Agreement, and the Sub-Contractor hereby accepts this engagement as set
forth in the attached Task Order. During this Agreement's term,
< Effective date and term (length) of contract not specified. Referenced
document, "Attached Task Order", has not been provided. >
the Sub-Contractor will devote sufficient time, unless prevented from so
doing because of sickness or disability, to the performance of services as
shall be necessary. Sub-Contractor acknowledges and agrees that Contractor
shall suffer substantial damages due to Sub-Contractor?s negligence and
Sub-Contractor?s will be liable for said damages including but not limited
to lost profits and other contractual and torte damages if Sub-Contractor
does not perform the services set forth in Section 2 of this agreement for
the entire term set forth in the attached Task Order. The damages will be
limited to the amount charged for the services.
Section 2. Services. The Sub-Contractor's services to be performed are as
follows:
All services provided must be further described in the attached Task Order
(Exhibit A)
< Referenced document, "Attached Task Order", has not been provided.>
(a) The Sub-Contractor?s services shall be performed at either the
Contractor?s or at one of its client?s site. The Contractor is a national
company and it delivers training across North America.
(c) The Contractor shall be under no obligation to supply the Sub-Contractor
with office space, secretarial assistance, or other assistance or support
services.
(d) Contractor will supply the subcontractor with the student evaluations
forms. Sub-Contractor agrees to return all student evaluations to the
Contractor within 24 hours by mail or fax. Sub-Contractor understands that
payment for the services shall not be made until the evaluations are
returned to the Contractor.
Section 3. Compensation. During this Agreement's term
< Effective date and term (length) of contract not specified.>
, the Sub-Contractor shall be paid as compensation for services thirty days
following Contractor?s receipt of invoice (2/10 net 30). The Sub-Contractor
agrees to invoice the Contractor upon completion of training/consulting
services. The Sub-Contractor may be entitled to reimbursement for reasonable
travel and living expenses incurred under this Agreement. Such expenses
shall be in compliance with the Contractor?s Traveling Reimbursement Policy
(Exhibit B)
< Referenced document "Contractor?s Traveling Reimbursement Policy (Exhibit
B)" has not been provided.>
Expenses approved by The Contractor for reimbursement must be billed
separately and submitted each month.
Section 4. Fee Schedule.
The fees for the services provided are to be outlined in a Task Order.
Section 5. Client Work Product. The Client shall have sole proprietary
interest in the work product of Sub-Contractor pursuant to and during the
term of this Agreement and Sub-Contractor expressly assigns to the Client or
its designee, all rights to, title and interest in, any and all copyrights,
patents, trade secrets, improvements, inventions, sketches, models and all
documents thereto, and any other work product developed by Sub-Contractor
("Work Product"), either solely or jointly with others, where said Work
Product relates to any business activity in which the Contractor is involved
at the time or prior to Sub-Contractor's creation of such Work Product,
< Effective date and term (length) of contract not specified. Unacceptably
vague and over-broad scope: "any business activity.">
or where said Work Product is developed with the use of Client?s time,
material or facilities; and Sub-Contractor further agrees to disclose any
and all such Work Product to the Contractor without delay. Sub-Contractor
shall, from time to time as requested by the Contractor, take all
appropriate steps to establish or document Contractor's ownership in and
place Contractor in possession of such Work Product, including but not
limited to, the execution of appropriate copyright applications or
assignments, and Sub-Contractor agrees not to disclose any knowledge of the
existence and contents of such Work Product herein unless and until release
in writing by the Contractor from such obligations.
Section 6. Training Materials. During the course of instruction,
Sub-Contractor shall proceed by presenting materials in accordance with the
approved outline attached to the Task Order.
< Referenced document, "Attached Task Order", has not been provided.>
Section 7. Course Outlines. Not Applicable.
Section 8. Referral fee. Contractor will pay Sub-Contractor a referral fee
of 15% of all business that Sub-Contractor refers to Contractor.
Section 9. License agreement. Not Applicable.
Section 10. Copyrights. Contractor will retain all intellectual property
and copyrights to its courseware and training materials.
Section 11. Other Confidential Information. The Sub-Contractor shall
protect all confidential information related to the Contractor, its clients
and prospective clients, including, without limitation, financial results,
budgets, forecasts and long-range plans, business strategies or objectives
or information relating to the foregoing furnished to or obtained pursuant
to this Agreement or otherwise, and shall not disclose to any person any
confidential information, except information which at the time is known
generally to the public. At the end of the Term, the Sub-Contractor shall
return to the Contractor, without making any copies, all written
confidential information not returned to the Contractor relating to the
Contractor or any of its subsidiaries, clients, and prospective clients.
Section 12. Non-disclosure. The Sub-Contractor shall not, without the
express written consent of Contractor during the term of this Agreement and
for a period of two (2) years thereafter, disclose to any third party or use
any confidential information of the type set forth in Sections 3, 4 and 5
above. Sub-Contractor agrees he or she shall not reproduce or copy any such
documents or objects which contain, or are derived from, any such
confidential information hereof, nor take with him or her any such
information upon the termination of this Agreement.
Section 13. Restriction on Competition. The Sub-Contractor agrees that
during this Agreement's term and for eighteen (18) months thereafter
< Effective date and term (length) of contract not specified.>
, the Sub-Contractor will not directly or indirectly use this confidential
information in any business, profession, or other endeavor which is either
directly or indirectly in competition with the Contractor's business. During
this Agreement's term and for eighteen (18) months thereafter
< Effective date and term (length) of contract not specified.>
, the Sub-Contractor shall not directly or indirectly solicit, perform for,
offer to provide or provide any services, as an employee, agent, independent
contractor, owner or otherwise, to the Contractor?s Client that is set forth
in the Task Orders.
Section 14. Remedies. The parties agree to the reasonableness of the
restrictions in the covenants set forth in Sections 4, 5, 6 and 7 above and
acknowledge that they have been negotiated at arms-lengths, and they agree
that such restrictions shall be legally enforceable and shall not be
challenged by the Sub-Contractor in any court proceeding. The Sub-Contractor
agrees that the Contractor's remedies at law for a breach of such
restrictions will be inadequate and that, in connection with any such
breach, the Contractor will be entitled, in addition to any other available
remedies, to temporary and permanent injunctive relief without the necessity
of proving actual damage or immediate or irreparable harm or for posting a
bond. Notwithstanding the foregoing, if any court shall determine such
restrictions to be unreasonable, the parties agree to the reformation of
such restrictions by the court to limits which it finds to be reasonable and
that the Sub-Contractor will not assert that such restrictions should be
eliminated in their entirety by such court.
Section 15. Termination. Task Order(s) and this Master Agreement where
applicable may be terminated as provided herein:
(a) The Contractor may terminate if the Client, for any reason whatsoever,
requests such termination, or if the contract between the Contractor and the
Client terminates or expires for any reason whatsoever, or for violation by
Sub-Contractor or its Sub-Contractor?s of paragraphs 4, 5, 6, 11, 12, and
13.
(b) The Sub-Contractor may terminate if the Contractor fails or refuses to
pay invoices rendered by Sub-Contractor providing that such invoices are due
and payable under the terms of this agreement and further providing the
Sub-Contractor has given written notice to the Contractor of failure to pay
and Contractor does not remedy same within a reasonable period of time
< Unacceptably vague.>
(c) or for violation by Sub-Contractor or its Sub-Contractor?s of paragraphs
8, 9, 11, 12, and 13.
Section 16. Assignment.
(a) This contract for services by the Sub-Contractor may not be assigned
without the Contractor's prior written consent.
(b) No Third party Sub-Contractor may be used by the Sub-Contractor without
prior written approval from the Contractor.
Section 17. Independent Contractor. The Sub-Contractor shall be deemed for
all purposes to be an independent contractor and not an employee and shall
not participate in any employee benefit program of the Contractor by reason
of this Agreement or the relationship between the parties created by this
Agreement. Except as otherwise required by law, the Contractor shall not
withhold any sums from the payments to be made for Social Security or other
federal, state, or local tax liabilities or contributions, and all
withholdings, liabilities, and contributions shall be solely the
responsibility of the Sub-Contractor. The Sub-Contractor will retain sole
and absolute discretion and judgment in the manner and means of carrying out
Sub-Contractor's activities and responsibilities hereunder. The
Sub-Contractor agrees that he is a separate and independent enterprise from
the Contractor, that it has a full opportunity to find other business, that
it has made its own investment in its business, and that it will utilize a
high level of skill necessary to perform the services requested hereunder.
The Sub-Contractor shall indemnify and hold the Contractor harmless from all
losses, injuries or damages, and wages or overtime compensation due to the
Sub-Contractor's employees in rendering services pursuant to this agreement,
including payment of reasonable attorneys' fees and costs in the defense of
any claim made under the Fair Labor Standards Act or any other federal or
state law.
Section 18. Insurance. Sub-Contractor shall maintain minimum general
liability limits of insurance as listed below:
A. Each Occurrence $500,000.
B. General Aggregate $1,000,000.
C. Products/Completed Operations Aggregate $1,000,000.
D. Personal and Advertising Injury $500,000.
E. Fire Damage (Legal Liability) $100,000.
F. Medical Expense $5,000.
Contractor shall be named as an additional insured. Additionally,
Sub-Contractor shall provide evidence of Workers Compensation insurance.
< Unnecessary as sub-contractor must perform all work individually and is
not permitted to assign work to an employee.>
A Certificate of Insurance indicating said coverage should be provided to
Contractor upon execution of this Agreement and as needed upon request. The
Certificate shall indicate that the policies will not be changed or
terminated without at least ten (10) days prior written notice to
Contractor.
Section 19. Warranty. Subcontractor is expected to guarantee an instructor
evaluation rating of 3 on a scale of 1 to 5 where 5 is "outstanding
< Unacceptably requires sub-contractor to guarantee the behavior of others.>
. In the event of a failed delivery where the client refuses to pay the
Contractor, the Contractor shall not be required to pay the Subcontractor.
In the event of partial payment by the client, payment to the Subcontractor
will be prorated based upon monies received and the original contract price.
Section 20. Notices. All notices and other communications shall be in
writing and shall be deemed to have been duly given if delivered personally
or mailed, registered or certified mail, postage prepaid, return receipt
requested, as follows:
To the Contractor: To the Sub-Contractor:
<deleted> <deleted>
Section 21. Entire Agreement. This Agreement constitutes the entire
agreement among the parties relating to this consulting engagement and
supersedes all prior agreements or understandings between the Contractor or
its agents and Sub-Contractor.
Section 22. Separability. If any one or more of the provisions contained in
this Agreement shall be held illegal or unenforceable by a court, no other
provisions shall be affected by this holding.
Section 23. Headings. The headings have been inserted for convenience only
and are not to be considered when constructing the provisions of this
Agreement.
Section 24. Attorney's Fees. If any party to this Agreement breaches any of
this Agreement's terms, then that party shall pay to the nondefaulting party
all of the nondefaulting party's costs and expenses, including attorney's
fees, incurred by that party if found guilty by court, in enforcing this
Agreement's terms, in addition to any available remedies.
Section 25. Waiver of Breach. The waiver by Contractor or by Sub-Contractor
of a breach of any provision of this Agreement by the other party shall not
operate, or be construed, as a waiver of any other breach of such other
party.
Section 26. Applicable Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania, without regard to its conflicts of law principles
< Cannot agree to "without regard to its conflicts of laws principles" as
the implications of this phrase are not clearly understood by someone
without formal legal education.>
Section 27. Jurisdiction and Venue. Sub-Contractor hereby consents to
exclusive jurisdiction and venue within the Commonwealth of Pennsylvania,
County of Philadelphia, or the United States District Court for the Eastern
District of Pennsylvania.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as
of the date first above written.
<Employer deleted> Sub-Contractor
BY:___________________________________BY:______________________________
<deleted> Signature
Executive Director ______________________________
Print Name
______________________________
Title
___________________________________ ______________________________
Date Date
_________________________________________________________________________
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