This Independent Contractor Agreement (this “Agreement
”), dated as set forth above (as indicated by the words “Start Date”) (the “Effective Date
”) sets forth the terms and conditions whereby you agree to provide certain services (as described herein) to Astronomic Inc., a Delaware corporation (the “Company
”), with offices located at 701 Brazos St, Suite 500, Austin, Texas 78701.
- AT-WILL RELATIONSHIP. YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY AS AN INDEPENDENT CONTRACTOR WILL BE AT-WILL, MEANING THAT YOU OR THE COMPANY MAY TERMINATE THE RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. ANY CONTRARY REPRESENTATIONS THAT MAY HAVE BEEN MADE TO YOU ARE SUPERSEDED BY THIS AGREEMENT. THIS IS THE FULL AND COMPLETE AGREEMENT BETWEEN YOU AND THE COMPANY ON THIS TERM. ALTHOUGH YOUR DUTIES, TITLE, COMPENSATION, AND BENEFITS, AS WELL AS THE COMPANY’S PERSONNEL POLICIES AND PROCEDURES, MAY CHANGE FROM TIME TO TIME, THE “AT WILL” NATURE OF YOUR EMPLOYMENT MAY ONLY BE CHANGED IN AN EXPRESS AGREEMENT SIGNED BY YOU AND AN AUTHORIZED REPRESENTATIVE OF THE COMPANY.
- Services; Scope of Work. The Company hereby engages you, and you hereby accept such engagement, as an independent contractor to provide certain services (including managing the Company’s presence on Upwork.com and communicating with potential business leads, as well as providing specialized services desired and engaged for by the Company’s customers (in accordance with an addendum substantially in the form of the addendum attached hereto as Exhibit A (the “Addendum”)) to the Company on the terms and conditions set forth in this Agreement. You shall provide to the Company the services as determined between you and the Company from time to time (the “Services”). The Company shall not control the manner or means by which you or your approved employees or contractors perform the Services, including but not limited to the time and place you perform the Services. The Company shall provide you with access to its premises, materials, information, and systems to the extent necessary for the performance of the Services. Unless otherwise provided to you, you shall furnish, at your own expense, the materials, equipment, and resources necessary to perform the Services. You shall comply with all rules and procedures communicated to you in writing by the Company or third-parties, including those related to safety, security, and confidentiality. Any provisions in this Agreement which may appear to give the Company the right to direct you as to the details of doing work herein covered or to exercise a measure of control over the work shall be deemed to mean that you shall follow the desires of the Company in the results of the work only.
- Term. The term of this Agreement shall commence as of the Effective Date and shall continue until the Services are completed (as indicated by the words “End Date” set forth above, if any), unless earlier terminated in accordance with Section 10 (the “Term”). Any extension of the Term will be subject to mutual written agreement between you and the Company (collectively, the “Parties”).
- Fees and expenses.
- Compensation. As full compensation for the Services and the rights granted to the Company in this Agreement, the Company shall pay you monthly for Services rendered (or another period of time, as agreed upon between you and the Company from time to time), payable in exchange for rendering the Services to the Company’s satisfaction. You acknowledge that you will receive an IRS Form 1099-MISC from the Company, and that you shall be solely responsible for all federal, state, and local taxes, as set out in Section 4(b).
- Treatment of Cost and Expenses. You are solely responsible for any costs or expenses incurred by you in connection with the performance of the Services, and in no event shall the Company reimburse you for any such costs or expenses. The Company reserves the right to reimburse you for certain costs and expenses, however, such reimbursement shall not create a recurring or mandatory obligation to reimburse you for such or other expenses or costs in the future.
- Time Reporting. If you are paid by the hour rather than by a fixed amount (as set forth in the section of the form above titled “Compensation”), you shall report your time on a periodic basis. Non-hourly-rate independent contractors are not required to report their time to the Company on a periodic basis. You are solely responsible for reporting all time worked on the due dates designated by the Company in its sole discretion or as agreed upon between you and the Company from time to time. The Company will not be obligated to pay your Fees unless and until you accurately report your time worked for a particular pay period.
- Payment of Fees. Subject to Section 3(a), the Company shall pay all undisputed Fees on a weekly basis (or such other periodic basis as determined in the sole, exclusive discretion of the Company or as agreed upon between you and the Company from time to time) after the Company’s receipt of all time worked during a particular pay period submitted by you upon completion of the Services.
- Relationship of the parties. You are an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between you and the Company for any purpose. You have no authority (and shall not hold yourself out as having authority) to bind the Company and you shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent. Without limiting this Section 4, you will not be eligible to participate in any vacation, group medical insurance, or life insurance, disability, profit sharing, retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on your behalf. You shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest.
- Intellectual property rights.
- Work Product; Intellectual Property Rights; Work Made for Hire. The Company is and will be, the sole and exclusive owner of all right, title, and interest, throughout the world, in and to all the results and proceeds of the Services performed under this Agreement, including but not limited to all writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of performing the Services or other work performed in connection with the Services or this Agreement (collectively, the “Work Product”), including all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively “Intellectual Property Rights”) therein. You agree that the Work Product is hereby deemed “work made for hire” as defined in 17 U.S.C. § 101 for the Company and all copyrights therein automatically and immediately vest in the Company. If, for any reason, any Work Product does not constitute “work made for hire,” you hereby irrevocably assign to the Company, for no additional consideration, your entire right, title, and interest throughout the world in and to such Work Product, including all Intellectual Property Rights therein, including the right to sue for past, present, and future infringement, misappropriation, or dilution thereof.
- Copyrights. To the extent any copyrights are assigned under Section 5(a), you hereby irrevocably waive in favor of the Company, to the extent permitted by applicable law, any and all claims you may now or hereafter have in any jurisdiction to all rights of paternity or attribution, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights” in relation to all Work Product to which the assigned copyrights apply.
- Disclosure of Work Product & Intellectual Property Rights. You shall make full and prompt written disclosure to the Company of any inventions or processes, as such terms are defined in 35 U.S.C. § 100, that constitute Work Product, whether or not such inventions or processes are patentable or protected as trade secrets and whether or not such inventions or processes are made or conceived during normal working hours or on the premises of the Company. You shall not disclose to any third party the nature or details of any such inventions or processes without the prior written consent of the Company. Any patent application for or application for registration of any Intellectual Property Rights in any Work Product that you may file during the Term or at any time thereafter will belong to the Company, and you hereby assign to the Company, for no additional consideration, your entire right, title, and interest in and to such application, all Intellectual Property Rights disclosed or claimed therein, and any patent or registration issuing or resulting therefrom.
- Further Actions. Upon the request of the Company, during and after the Term, you shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, and provide such further cooperation, as may be necessary to assist the Company to apply for, prosecute, register, maintain, perfect, record, or enforce its rights in any Work Product and all Intellectual Property Rights therein. In the event the Company is unable, after reasonable effort, to obtain your signature on any such documents, you hereby irrevocably designate and appoint the Company as your agent and attorney-in-fact, to act for and on your behalf solely to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, or other intellectual property protection related to the Work Product with the same legal force and effect as if you had executed them. You agree that this power of attorney is coupled with an interest.
- Use of Preexisting Materials & Derivative Works. Notwithstanding Section 5(a), to the extent that any of your preexisting materials are incorporated in or combined with any Deliverable or otherwise necessary for the use or exploitation of any Work Product, you hereby grant to the Company an irrevocable, worldwide, perpetual, royalty-free, non-exclusive license to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such preexisting materials and derivative works thereof. The Company may assign, transfer, and sublicense (through multiple tiers) such rights to others without your approval.
- Company Materials. As between you and the Company, the Company is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, specifications, data, know-how, methodologies, software, and other materials provided to you by the Company (“Company Materials”), including all Intellectual Property Rights therein. You have no right or license to use, publish, reproduce, prepare derivative works based upon, distribute, perform, or display any Company Materials except solely during the Term to the extent necessary to perform your obligations under this Agreement. All other rights in and to the Company Materials are expressly reserved by the Company. You have no right or license to use the Company’s trademarks, service marks, trade names, trade names, logos, symbols, or brand names.
- Confidential Information. You acknowledge that you will have access to information that is treated as confidential and proprietary by the Company, including but not limited to the existence and terms of this Agreement, trade secrets, technology, and information pertaining to business operations and strategies, customers, students, pricing, marketing, finances, sourcing, personnel, or operations of the Company, its affiliates, or their suppliers or customers, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). Any Confidential Information that you develop in connection with the Services, including but not limited to any Work Product, shall be subject to the terms and conditions of this Section 6. You agree to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. You shall notify the Company immediately in the event you become aware of any loss or disclosure of any Confidential Information. “Confidential Information” shall not include information that: (i) is or becomes generally available to the public other than through your breach of this Agreement; or (ii) is communicated to you by a third party that had no confidentiality obligations with respect to such information.
- Legally Required Disclosure. Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law, or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. You agree to provide written notice of any such order to an authorized officer of the Company within seven (7) business days of receiving such order, but in any event, sufficiently in advance of making any disclosure to permit the Company to contest the order or seek confidentiality protections, as determined in the Company’s sole discretion.
- Notice of Immunity Under the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement:
- You will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that: is made (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
- If you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose the Company’s trade secrets to your attorney and use the trade secret information in the court proceeding if you: (A) file any document containing the trade secret under seal; and (B) do not disclose the trade secret, except pursuant to court order.
- Representations and Warranties.
- Independent Contractor Representations & Warranties. You represent and warrant to the Company that: (i) you have the right to enter into this Agreement, to grant the rights granted herein, and to perform fully all of your obligations in this Agreement; (ii) your entering into this Agreement with the Company and your performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which you are subject; (iii) you have the required skill, experience, and qualifications to perform the Services, you shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and you shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner; (iv) you shall perform the Services in compliance with all applicable federal, state, and local laws and regulations; (v) the Company will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind; (vi) all Work Product is and shall be your original work (except for material in the public domain or provided by the Company) and, to the best of your knowledge, does not and will not violate or infringe upon the intellectual property right or any other right whatsoever of any person, firm, corporation, or other entity.
- Company Representations & Warranties. The Company hereby represents and warrants to you that: (i) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and (ii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action.
- INDEMNIFICATION.YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, ACTIONS, JUDGMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RESULTING FROM: (i) BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE, PERSONAL PROPERTY RESULTING FROM YOUR NEGLIGENT, GROSSLY NEGLIGENT, OR MORE CULPABLE ACTS OR OMISSIONS BY YOU (INCLUDING ANY RECKLESSNESS OR WILLFUL MISCONDUCT; (ii) ANY NEGLIGENT, GROSSLY NEGLIGENT, OR MORE CULPABLE ACT OR OMISSION BY YOU (INCLUDING ANY RECKLESSNESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; (iii) ANY FAILURE BY YOU TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; AND (iv) YOUR BREACH OR NON-FULFILLMENT OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OBLIGATION UNDER THIS AGREEMENT. THE COMPANY MAY SATISFY SUCH INDEMNITY (IN WHOLE OR IN PART) BY WAY OF DEDUCTION FROM ANY PAYMENT DUE TO YOU.
- Termination; Expiration of this Agreement. You or the Company may terminate this Agreement, effective immediately, with or without cause. In the event of termination pursuant to this clause, the Company shall pay you on a pro-rata basis any Fees then due and payable for any Services completed up to and including the date of such termination. You or the Company may terminate this Agreement, effective immediately upon written notice to the other party to this Agreement, if the other party breaches this Agreement. Upon expiration or termination of this Agreement for any reason, or at any other time upon the Company’s written request, you shall promptly after such expiration or termination: (i) deliver to the Company all deliverables and Work Product (whether complete or incomplete) and all hardware, software, tools, equipment, or other materials provided for your use by the Company or the Company’s affiliates; (ii) deliver to the Company all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information; (iii) permanently erase all of the Confidential Information from your computer systems; and (iv) certify in writing to the Company that you have complied with the requirements of this clause. The terms and conditions of this clause and Section 4, Section 5, Section 6, Section 7, Section 8, Section 11, Section 13, Section 14, Section 15, and Section 16 shall survive the expiration or termination of this Agreement.
- Other Business Activities. You may be engaged or employed in any other business, trade, profession, or activity which does not place you in a conflict of interest with the Company; provided that during the Term, you shall not be engaged in any business that does or may compete with the Company’s business without the Company’s prior written consent to be given or withheld in its sole discretion.
- Non-solicitation. You agree that during the Term of this Agreement and for a period of twenty-four (24) months following the termination or expiration of this Agreement, you shall not make any solicitation to employ the Company’s personnel that are known to you without written consent of the Company to be given or withheld in the Company’s sole discretion. For purposes of this Section 12, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill staff positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such staff or independent contractor who freely responds thereto shall not be a breach of this clause.
- Mandatory Arbitration. ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY BREACH OR TERMINATION OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE SERVICES YOU PROVIDE TO THE COMPANY, AND ANY ALLEGED VIOLATION OF ANY FEDERAL, STATE, OR LOCAL STATUTE, REGULATION, COMMON LAW, OR PUBLIC POLICY, WHETHER SOUNDING IN CONTRACT, TORT, OR STATUTE, SHALL BE SUBMITTED TO AND DECIDED BY BINDING ARBITRATION. ARBITRATION SHALL BE ADMINISTERED BY THE INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION (THE “ICDR”) AND HELD IN TRAVIS COUNTY, TEXAS, UNITED STATES OF AMERICA, BEFORE A SINGLE ARBITRATOR, IN ACCORDANCE WITH THE ICDR’S RULES, REGULATIONS, AND REQUIREMENTS. ANY ARBITRAL AWARD DETERMINATION SHALL BE CONFIDENTIAL, FINAL, AND BINDING UPON THE PARTIES. JUDGMENT ON THE ARBITRATOR’S AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.ARBITRATION SHALL PROCEED ONLY ON AN INDIVIDUAL BASIS. THE PARTIES WAIVE ALL RIGHTS TO HAVE ANY DISPUTE HEARD OR DECIDED BY A JURY OR IN A COURT TRIAL AND THE RIGHT TO PURSUE ANY CLASS OR COLLECTIVE CLAIMS AGAINST EACH OTHER IN COURT, ARBITRATION, OR ANY OTHER PROCEEDING. EACH PARTY SHALL ONLY SUBMIT THEIR OWN INDIVIDUAL CLAIMS AGAINST THE OTHER AND WILL NOT SEEK TO REPRESENT THE INTERESTS OF ANY OTHER PERSON. THE ARBITRATOR SHALL HAVE NO JURISDICTION OR AUTHORITY TO COMPEL ANY CLASS OR COLLECTIVE CLAIM, OR TO CONSOLIDATE DIFFERENT ARBITRATION PROCEEDINGS WITH OR JOIN ANY OTHER PARTY TO AN ARBITRATION BETWEEN THE PARTIES. THE ARBITRATOR, NOT ANY COURT, SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY DISPUTE RELATING TO THE ENFORCEABILITY OR FORMATION OF THIS AGREEMENT AND THE ARBITRABILITY OF ANY DISPUTE BETWEEN THE PARTIES, EXCEPT FOR ANY DISPUTE RELATING TO THE ENFORCEABILITY OR SCOPE OF THE CLASS AND COLLECTIVE ACTION WAIVER, WHICH SHALL BE DETERMINED BY A COURT OF COMPETENT JURISDICTION. YOU SHALL PAY ALL ARBITRATION AND COURT COSTS, REASONABLE ATTORNEY’S FEES, AND LEGAL INTEREST ON ANY AWARD OF JUDGEMENT IN FAVOR OF THE COMPANY.
- Miscellaneous. This Agreement and all related documents, including all exhibits, schedules, addenda, and attachments attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if (a) the receiving party has received the Notice and (b) the party giving the Notice has complied with the requirements of this Section. This Agreement, together with any other documents incorporated herein by reference and related exhibits and schedules, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the Party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement may be executed in multiple counterparts and by facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument. You shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Company’s prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. The Company may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will insure to the benefit of, be binding on, and be enforceable against each of the Parties hereto and their respective successors and assigns.
This Statement of Work (“SOW
”), adopts and incorporates by reference the terms and conditions of the Independent Contractor Agreement (“Agreement
”), between Astronomic Inc., a Delaware corporation (“Company
”) and you, and together with the Company, the “Parties
,” and each, a “Party
”), as it may be amended from time to time. This SOW is effective beginning on the date by which you fill out our Contractor Form, (“SOW Effective Date
”) and will remain in effect, unless earlier terminated in accordance with the Agreement. Capitalized terms used but not defined in this SOW shall have the meanings set out in the Agreement.
- Company. The work described in this SOW is to be performed for Astronomic.
- Scope of Work & Project Summary. Consulting, digital marketing, advertising, email marketing, affiliate marketing, SEO, analytics, web development, software development, database development, copywriting, accounting, legal work, project management, administrative work, creative work, advisory services.