Far Beyond Code LLC
Independent Contractor Agreement v2
Copyright © 2014 Far Beyond Code LLC
Everyone is permitted to copy, modify and distribute unsigned, template copies of this document including the right to remove this copyright message.
PARTIES TO THIS AGREEMENT:
Primary Email Address:
Paypal Email Address:
(hereinafter referred to as "the Company")
Primary Email Address:
Paypal Email Address:
(hereinafter referred to as "the Contractor")
Supported Browser List: This list is provided at the following URL:
Preferred Open Source License List: GPL, LGPL, MPL 2.0, Apache 2.0, MIT, BSD, Creative Commons and Public Domain.
GPL License: Refers to the GPLv3 or newer license agreement found at the following URL:
Sets of Revisions: This is an email, verbal discussion or other notice given by the Company that provides the Contractor with 1 or more creative changes that are reasonably within scope of the original project they are contracted to do.
Design Phase: The occurs beginning of a project before any software is created or configured. The Design Phase is over once the Company has reviewed and approved the materials provided by the Contractor at the end of the Design Phase for a project. Some projects don't include a Design Phase if the work is limited exclusively to implementation. Any technical implementation which may require creative input should be conceptualized during the Design Phase and approved by the Company prior to beginning implementation.
Implementation Phase: After the Design Phase is complete or when it is excluded from a project, the Implementation Phase begins. Any creative input that was allowed during the Design Phase is typically not allowed once the Implementation Phase has begun. A Client is expected to review the project and accept it as complete according to what the Client approved in the Design Phase and the Itemized Technical Specifications of the project.
Itemized Technical Specifications: A project contract may include a variety of technical specifications which are expected to be implemented, but these may not be visible during the design phase of a project because they are technical in nature or already included in the software. If the Contractor wishes to have further clarification, they may be provided screenshots, explanation or a demonstration by the Company.
THIS CONTRACT WILL COMMENCE ON
AND EXPIRES when the Contractor no longer performs services for the Company.
It is expressly understood and accepted that this is not an employment agreement and as such the Contractor will have no claim to Company benefits or employee considerations, including but not limited to profit sharing, pension, shares or bonuses. Upon expiry of this contract it is understood that that the relationship between the parties has ended.
2. DESCRIPTION OF SERVICES:
2.1. It is agreed by both parties that the Contractor has full control on how these services will be performed subject to it meeting the standards required by the Company.
2.2. The Contractor warrants that he / she is not violating any other agreement by performing these services.
2.3. The Contractor agrees that services not meeting the standards required by the Company will be corrected. The parties agree that the Contractor will have at least one opportunity to re-perform services, should any services not meet the standards required by the Company, within a specified time limit.
2.4. The Contractor warrants that no laws will be violated in performing any services.
2.5. The Contractor guarantees that he / she is competent to carry out the services which he / she has undertaken in this contract. Any material misrepresentation shall lead to summary termination of this agreement.
2.6. The Contractor shall perform these services at the location of their choice.
The Contractor will be paid according to the terms of each project they are separately contracted to do. If the payments terms are omitted from the project terms, the following terms apply:
3.1. Contractors will be paid 50% in advance, and 50% on completion for the work they are being assigned.
3.2. If a project is more then 30 days late, the Company has the right to 1) cancel the project and demand a full refund for any money paid in advance to the Contractor or 2) receive a copy of the partially completed work from the Contractor.
3.3. If the Company accepts and is delivered a completed project, even one that is late, no refund or late fee penalty may be assigned and the original payment terms still apply.
3.4. If the Contractor owes a refund to the Company, and it is not paid within 30 days, a 1% simple interest late fee will be added to the remaining refund balance each month until fully paid.
3.5. The Contractor agrees that should he / she withhold their services for whatever reason, a principle of "no work, no pay" shall apply.
3.6. The Contractor must make the Company aware of any expenses they require reimbursement on prior to making a purchase, and applicable receipts must be presented to the Company to receive reimbursement.
3.7. The Contractor is usually required to wait for the Company's client to pay for a project before payment can be made to the Contractor.
3.8. If the Company or the Company's client cancels the project or refuses payment, the Contractor is not due any further payment on the project, the Contractor is no longer responsible for completing the project and the Contractor is not required to deliver any partial progress on the project to the Company and the Contractor doesn't have to refund any money that was advanced.
3.9. The Company provides its clients a billing grace period for completed work. Contractors must wait up to, but no longer then 18 calendar days after completing a project for payment in order to allow time for financial transactions to become available for transfer.
3.10. For each full or partial payment, the Contractor is due their share minus any applicable merchant account fees incurred during the transaction not to exceed 3% of the payment. The Contractor agrees that these fees are an acceptable and unavoidable part of doing business. These fees exist because the Company allows it's customer to pay with credit cards and other kinds of electronic payments without assessing them any penalty for this convenience.
3.11. Project completion acceptance occurs when the Company has unilaterally signed a statement that the project is complete.
3.12. If the Company wishes to unilaterally cancel a project, they reserve the right to do so at any time with or without providing a reason. The Company agrees to pay the Contractor for the portion of work that was completed which is determined by comparing the project scope to the partial progress delivered by the Contractor. If the Contractor can not demonstrate significant work was performed, they will not be due any compensation for the canceled project. Any payment already paid to the Contractor will count towards the final payment, and the Contractor is not obligated to refund any money to the Company.
4.1. Should the Contractor employ assistants to perform the services as in 2., all provisions in this agreement including but not limited to confidentiality, ownership of works and indemnification shall be binding upon all assistants of the Contractor.
4.2. Remuneration for assistants to the Contractor to perform the services under this agreement must be paid by the Contractor.
4.3. The Contractor agrees that all directives or instructions to their assistants will be communicated through the Contractor.
5.1. The Contractor acknowledges that during the relationship with the Company, the Contractor may become familiar with the Company's confidential information including commercial and technical secrets and / or the confidential information of clients of the Company.
5.2. The Contractor consequently agrees that during the period of performing services and subsequent thereto, the Contractor will not disclose to others or make use of directly or indirectly, any confidential information of the Company or confidential information of a client of the Company or of others who have disclosed it to the Company under conditions of confidentiality, unless for a purpose authorized by the Company. If there is any doubt about whether any disclosure or use is for an authorized purpose, the Contractor is to obtain a ruling in writing from the Company and is to abide by it.
5.3. The Contractor shall take reasonable security precautions to keep confidential all information deemed confidential and shall not make unauthorized copies. He / she further undertakes to notify the Company immediately upon discovery of any unauthorized use or disclosure of confidential material and shall assist the Company in regaining of such material and mitigating the loss to the Company there from.
5.4. For the purpose of this clause, confidential information will be deemed to extend to all confidential technical and commercial information, including, but not limited to the contents of reports, specifications, quotations, formulas, computer records, client lists, price schedules, customer lists, customers and the like.
5.5. The Contractor is required to deliver to the Company whenever required to do so, or in any event when terminating the relationship with the Company, all books of account, records, correspondence, notes, computer disks, and the like concerning or containing any reference to the business of the Company or the Company's clients.
5.6. Some of the Company's works have their own licenses attached to them, some of which are free open source licenses. The Contractor agrees to abide to the terms of the license agreements of all software provided by the Company. If no license agreement is assigned to a project yet, the Contractor will treat that work as a confidential, proprietary work that should not be disclosed or distributed to unauthorized parties.
6. OWNERSHIP OF WORK:
6.1. Any documents or records or creations including but not limited to written instructions, drawings, photographs, computer programs, notes or memorandum relating to the business of the Company, which are made by the Contractor or which come into the Contractor's possession while he / she is engaged by the Company to perform services, shall be deemed the property of the Company and shall be surrendered to the Company on demand and, in any event, on the date of termination of this agreement. The Contractor will not retain any copies thereof or any extracts there from.
6.2. The Contractor does hereby assign to the Company the total right, title and interest in and to any copyright in any existing or future works or part thereof of whatsoever nature that the Contractor, individually or jointly with any other person(s) has made or created or will make or will create during the course and scope of this agreement and the performing of services by the Contractor for the Company.
6.2.1. The Company provides an exception to 6.2 that allows the Contractor the right to operate any current or future business independently from the Company at any location, and for any purpose, so long as the Contractor represents themselves as an independent entity from the Company and doesn't utilize the Company's confidential information for the benefit of the other business.
6.3. The Company intends to distribute its software to others, and in order to do so, the Contractor must not include any portion or copy of copyrighted work that doesn't allow distribution according to the GPLv3 or newer license or a more permissive license.
6.4. The Company provides exceptions to the Contractor for intellectual property rights in the following cases:
6.4.1. The Contractor has permission to use open source projects owned by the Company any way they see fit as long as they abide the project's license agreement.
6.4.2. The Contractor has the right to continue the development of their own business including software development and maintaining services for their own clients that existed before, during, and after this agreement with the Company.
6.4.3. If the Contractor is legally able to create a new open source project based on their previously proprietary work or extends an existing third party open source project during the course of work for the Company, then the license terms of that project will override the ownership terms of this agreement. The open source project may be used on any of the Company projects provided the license is compatible with the GPLv3 or newer license – See DEFINITIONS for “Preferred Open Source License List” for a list of licenses authorized for use by the Company.
7. OBLIGATIONS OF THE CONTRACTOR:
7.1. The Contractor agrees to take full responsibility for declaration of income for tax purposes and for the payment thereof.
7.2. The Contractor will not be liable to the Company or its agents or employees for any claim, cost or fees arising from the services provided by this agreement, unless any such claims, costs or fees are judged by the appropriate court to be due to willful misconduct or gross negligence on the part of the Contractor or the Contractor's assistants.
7.3. The Contractor shall supply all equipment or tools or instruments needed to perform the services under this agreement.
7.4. The Contractor will not solicit or take offers directly from Company employees, contractors or clients without written permission of the Company for the duration of the Contractor's work with the Company and 12 months thereafter.
7.4.1 The Company also provides services to other web development companies, and the Contractor must agree not to solicit or take offers directly from these web developer companies, their staff or their clients.
7.4.2. A violation as described in 7.4 and 7.4.1 will result in the Contractor being required to make a one time payment to the Company that is equal to 50% of the Contractor's first year of gross income for each entity that paid the Contractor in violation of this agreement.
7.6. The Contractor agrees to not send unsolicited commercial bulk email (SPAM) through the Company's networks or anywhere else on the Internet.
7.7. The Contractor understands that electronic contracts signed with the Company are legally binding according to federal & state law.
7.8. The Contractor agrees to produce HTML source code that is able to validate HTML 5 or newer specifications according to the rules specified by the W3C.
7.10. The software written by the Contractor should perform reasonably fast such that a user would not notice a considerable delay when using the software they have access to. Steps should be taken to minimize the amount of data accessed for a single request by using a variety of caching and optimization techniques to reduce the impact on system resource usage. Any request that takes more then 2 seconds of server processing time must be further optimized or made into an asynchronous scheduled task that the user is unable to directly execute.
7.12. The Contractor agrees to reuse existing software platforms rather then recreate software on their own including using the Company's own software, open source libraries and other freely available software to complete the work unless written permission is given by the Company.
7.13. The Contractor will not introduce other people's source code into any Company project without also finding and including the related licenses in the source code directory. The Contractor must verify that these licenses are compatible with the newest version of the GPL license. See DEFINITIONS for “Preferred Open Source License List” for a list of licenses authorized for use by the Company. Use of any license not listed to perform the services for the Company requires the written consent of the Company.
7.13.1. If the Contractor fails to meet the terms of 7.13., they may be required to re-perform services.
7.14 The Contractor must provide a Project Completion Notification letter to the Company when a project is complete or when further corrections have been made, along with the current date.
7.15. The Company asks that Contractors submit their work to the Company for review prior to notifying the Company's client unless written permission has allowed direct contact on a specific project.
7.16 Contractor's Security Obligations
7.16.1. The Contractor agrees to comply with the latest version of the VISA PCI-DSS and applicable federal/state law when handling data that contains credit card numbers, bank account information, social security numbers or drivers license numbers.
7.16.2. The Contractor will not use insecure methods such as email, FTP, HTTP or SMS text messages when transmitting sensitive information such as passwords, bank account information, credit cards, social security numbers, or drivers license numbers. If in doubt, The Contractor will ask the Company how to share this information securely.
7.16.3. The Contractor will not store or transmit bank account information, credit cards, social security numbers, or drivers license numbers without following the legal and contractual obligations related to the use of that data and that have been approved by the Company.
7.16.4. The Contractor will not attempt to access systems, accounts or other information they haven't been explicitly asked to work on.
7.16.5. The Contractor will report discovery of security related problems to the Company immediately and agrees to not disclose this information publicly until appropriate actions are taken by the Company to remedy the problem.
7.16.6. The Contractor will not share the login credentials provided to them by the Company for server/network administration systems with others, including their assistants.
7.16.7. Each person performing work on the Company's systems must be given separate login credentials. The Contractor agrees to request additional credentials from the Company if they wish to share access to server/network administration systems with others.
8. OBLIGATIONS OF THE COMPANY:
8.1. The Company acknowledges that the timely completion of the services provided by the Contractor under this agreement depends on the co-operation of the Company to comply with reasonable requests from the Contractor and the Company agrees to extend such co-operation.
8.2. Upon the death of a Contractor whilst under the terms of this agreement, the Company shall pay all monies due to the estate of the Contractor.
8.3. The Company will agree to define a limit to the maximum number of creative revisions that are allowed per project. If no limit is specified, then 3 Sets of Revisions may be made during the Design Phase of a project, and thereafter only corrections until the project is complete or when a new written agreement is signed by both the Company and the Contractor. SEE DEFINITIONs.
8.4. The Company must acknowledge delivery of a Contractor's Project Completion Notification within 3 business days and issue a rejection letter with specific reasons within 5 business days after acknowledgment if the Company feels the project is not complete as specified in the project's contract. When the project is deemed complete by the Company, the final payment is due to the Contractor according to the project's payment terms.
8.4.1 If the Contractor suffers delays exceeding 15 consecutive calendars days due to the Company or the Company's clients not providing adequate feedback in a timely manner as stated in 8.4, the Company loses its right to assess any penalties related to the project being late for the remainder of the current project.
9. NOTICE OF TERMINATION:
9.1. This contract will terminate as per 1 above with NO notice required. However, either party may terminate this contract in writing in the following instances:
9.1.1. If either party is convicted of a criminal offense.
9.1.2. Non-payment to the Contractor by the Company as agreed upon in this agreement and failure to remedy within 30 days from the date payment is due.
9.1.3. Failure by the Contractor to meet deadlines for performance of services or failing to meet the standards required by the Company in the performing of services.
9.1.4. Insolvency or bankruptcy of either party.
9.1.5. Change of ownership of the business of either party.
10.1. This agreement and any exhibit attached constitute the sole and entire agreement between the parties with regard to the subject matter hereof and the parties waive the right to rely on any alleged express provision not contained herein.
10.2. No party may rely on any representation, which allegedly induced that party to enter into this agreement, unless the representation is recorded herein.
10.3. No agreement varying, adding to, deleting from or canceling this agreement and no waiver of any right under this agreement shall be effective unless it is:
10.3.1. In writing;
10.3.2. Agreed to by both parties;
10.3.3. Signed by both parties.
10.4. Written notice by either party to the other may be given:
10.4.1. In person, and such notice shall be deemed valid on the date of delivery in person.
10.4.2. By registered mail, and such notice shall be deemed valid as of seven days of the proof of mailing date.
10.4.3 By electronic signature using the services provided by EchoSign.com.
10.4.4. By electronic signature using the signing services provided directly through the Company's Web Site(s).
10.5. No relaxation by a party of any of its rights in terms of this agreement at any time shall prejudice or be a waiver of its rights (unless it is a written waiver) and it shall be entitled to exercise its rights hereafter as if such relaxation had not taken place.
10.6. No party may cede any of its rights or delegate or assign any of its obligations in terms of this agreement without the prior written consent of the other parties.
10.7. Unless inconsistent with the context, words signifying any one gender shall include the others, words signifying the singular shall include the plural and vice versa and words signifying natural persons shall include artificial persons and vice versa.
10.8. Should any provision of this agreement be judged by an appropriate court of law as invalid, it shall not affect any of the remaining provisions whatsoever.
10.9. The parties agree that any dispute which may arise from this agreement will be referred to an impartial and lawful arbitration body whose decision will be binding upon both parties.
11. LIABILITY, ERRORS AND OMISSIONS
11.1. If part of the original services provided DIRECTLY by the Contractor are found to be missing or incorrect after the project is deemed complete, the Contractor agrees to remedy the situation for free within a reasonable amount of time. This obligation expires 3 months after project completion or upon termination of this agreement.
11.2. If not otherwise specified in a written contract, the Contractor must perform work that is designed to be compatible with the current version of the “Supported Browser List” at the beginning of that project. See Definitions for more information on this list:
11.3. Should a conflict arise between this Independent Contractor Agreement and another contract in place for a project, the project contract will take effect for that portion of the agreement assuming that the project contract is a bilateral agreement signed by both the Company and the Contractor.
11.4. If the Contractor refuses to remedy the errors/omissions, the Contractor agrees to pay a reasonable amount of money to the Company to have the work completed by someone else.
11.5. The Contractor agrees to cooperate and must be allowed to be involved in any legal claims or settlement decisions arising out of the agreements they made with the Company.
11.6. The Contractor's total liability for damages arising from work they performed on any single project will be limited to not more then half of the price the Contractor was paid on that project. The Contractor is responsible only for direct damages, not special or consequential damages even if they were made previously aware of the possibility of such damages.
11.7. If the Contractor has been found to infringe upon or violate third party copyrights, patents or trade secrets while performing services for the Company, the Contractor will indemnify the Company from these claims & any related damages.
11.8. The Contractor agrees to provide adequate quotes that ensure a good balance between efficiency and quality exists to minimize the number of software defects encountered after project completion.
12. ESTABLISH CONTRACTS & PAYMENT FIRST
12.1. The Contractor and Company must establish a written agreement signed by both parties prior to beginning work on each project. Any other communications related to the project don't constitute an agreement.
12.2. The Contractor agrees to not incur any expenses or to begin work until all parties have bilaterally signed a Statement Of Work agreement with the Company.
12.3. If a bilateral agreement has been made and the initial payment and necessary materials due to the Contractor are not received within 5 calendar days, the Contractor has the right to demand an extension to the due date.
12.3.1. If the Company doesn't agree to the extension according to 12.3, the project may be canceled without penalty by the Contractor assuming the Contractor refunds any compensation received for the project.
13. GOVERNING LAW, JURISDICTION AND VENUE
13.1. This contract shall be governed by, and construed in accordance with, the laws of the State of Florida and the United States of America as applicable. The Contractor agrees and consents to the exclusive jurisdiction of the courts of the State of Florida for all purposes regarding this Contract and further agrees and consents that venue of any action brought hereunder shall be exclusively in the County of Volusia.
13.2. The Contractor agrees to first attempt to resolve any dispute with the Company related to this agreement informally for at least thirty calendar days before beginning any court related proceeding against the Company.
14.1. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of Florida or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the rules of the selected arbitrator. An award of arbitration may be confirmed in a court of competent jurisdiction.
15.1. Future versions of this agreement may be delivered to the Contractor from the Company in order to collect their electronic signature.
15.2. The Contractor is responsible for maintaining accurate contact information with the Company in order to ensure it receives notification regarding changes to this agreement.
15.3. The Contractor agrees to not to share its Primary Email Address and/or login credentials for the Company's signing services with other parties unless it authorizes them to sign future versions of this agreement on their behalf. The Contractor must create separate accounts for parties that are not authorized to sign.
15.4. No future version of this agreement shall be binding unless it is in writing and signed by both parties, which includes by electronic signature.
15.5. If the Contractor doesn't wish to accept the terms of the new agreement, The Company may choose to terminate this agreement.
By signing below, the Contractor certifies under the penalty of perjury that their information listed above is correct, and each party agrees to the terms of this Independent Contractor Agreement.