The terms and conditions of the Service Contract are as set forth below ("Standard Terms"). Business Member and Consultant may modify the terms herein via a separate agreement but may not agree to any other terms and conditions that affect the rights or responsibilities of Patexia. Business Member and Consultant acknowledge agreement to the terms and conditions set forth in the Patexia User Agreement. Terms defined in the User Agreement that are used in this Service Contract have the meanings as set forth in the User Agreement.
Consultant shall perform Services as set forth in Exhibit A in a professional and workmanlike manner and shall timely deliver any agreed-upon Work Product.
2. Business Member Payments and Billing.
Business Member shall pay the agreed-upon amount for time spent to Patexia, and Business Member will have no obligation of payment directly to Consultant. Consultant agrees that it will be paid solely by Patexia and Consultant will have recourse against Business Member only if Business Member fails to make payment to Patexia.
3. Termination of a Service Contract.
Either party may terminate the Service Contract at any time for any or no reason. However, the Business Member remains obligated to pay for any time the Consultant worked prior to termination.
4. Business Member Deliverables.
Business Member grants Consultant a limited, non-exclusive, revocable (at any time, at Business Member's sole discretion) right to use the instructions, requests, intellectual property and any other information or materials that a Consultant receives from a Business Member for a particular Service Contract ("Business Member Deliverables") as necessary for the performance of the Services. Business Member reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Business Member Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Business Member, Consultant shall immediately return all Business Member Deliverables to the Business Member and further agrees to purge all copies of Business Member Deliverables and Work Product contained in or on Consultant's premises, systems, or any other equipment otherwise under Consultant's control. Within ten (10) days of Business Member's request, Consultant agrees to provide written certification to the Business Member that all Business Member Deliverables have been returned or purged.
"Proprietary Rights" means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
5. Work Product.
Proprietary Rights in Work Product shall be owned by Consultant until payment has been made by Business Member, at which time Consultant will be deemed to have assigned all Proprietary Rights in the Work Product to Business Member. To the extent that under applicable law, Proprietary Rights cannot be assigned, Consultant hereby irrevocably agrees to grant, and hereby grants, to Business Member an exclusive (excluding also Consultant), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under applicable law, Consultant hereby irrevocably agrees to grant, and hereby grants, to Business Member, such rights as Business Member reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Business Member will be able to acquire, perfect and use such Proprietary Rights, Consultant will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Business Member, including delivery of a complete copy of the source code for any software, documented in sufficient detail to enable a reasonably skilled programmer to correct, integrate and modify it; (ii) sign any documents at Business Member's request to assist Business Member in the documentation, perfection and enforcement of its rights; and (iii) provide Business Member with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights in any and all countries. In the case that under applicable law, Consultant retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights" or other inalienable rights to Work Product or Confidential Information under this Agreement, Consultant irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Consultant cannot waive such rights, Consultant agrees not to exercise such rights, until Consultant has provided prior written notice to Business Member and then only in accordance with any reasonable instructions that Business Member issues in the interest of protecting its rights. Consultant's obligations under this Section 5 will continue even after Consultant deregisters from or ceases use of the Patexia. Connect. Consultant appoints Business Member as Consultant's attorney-in-fact to execute documents on Consultant's behalf for the purposes set forth in this Section 5.
6. Pre-existing Intellectual Property in Work Product.
Consultant shall ensure that no Work Product created or delivered by Consultant includes any pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Consultant or a third party including, without limitation, code written by proprietary software companies or developers in the open source community (collectively "Pre-existing IP") without obtaining the prior written consent of the Business Member to the inclusion of such Pre-existing IP in the Work Product. Consultant acknowledges that, without limiting any other remedies, Consultant shall not be entitled to payment for, and shall refund to Business Member any payments previously made by Business Member to Consultant for, any Services performed on a Service Contract if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 6.
7. Privileged Information
The parties may share certain information that is protected by the attorney-client privilege, the attorney work product doctrine, and/or other applicable privileges and immunities (“Privileged Information”). In furtherance thereof, the parties agree that such sharing and exchange of Privileged Information will be subject to the attorney-client privilege, the work product privilege and/or other applicable privileges and immunities to the maximum extent possible. This Agreement memorializes the understanding of the parties that their exchange of Privileged Information is not intended to, and is not understood to, void, waive or compromise in any respect any applicable privilege, protection, immunity, or other legal protection applicable to such information.
8. Worker classification.
Business Member assumes all liability for proper classification of Consultants as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Business Member and Consultant. Consultant does not have authority to enter into written or oral - whether implied or express - contracts on behalf of Business Member. Consultant acknowledges that Patexia does not, in any way, supervise, direct, or control Consultant's work or Services performed in any manner. Patexia does not set Consultant's work hours and location of work, nor is Patexia involved in determining if the compensation will be set at an hourly or fixed rate or in setting the particular rate for a service contract. Patexia will not provide Consultant with training or any equipment, labor or materials needed for a particular Contract. Patexia will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Business Member and Consultant will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Consultant's performance of Services. Business Member and Consultant agree to indemnify, hold harmless and defend Patexia from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Consultant was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Consultant was misclassified (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that Patexia was an employer or joint employer of Consultant, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.
8. Audit Rights
Business Member and Consultant each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to Patexia upon request. Patexia, or Patexia's advisors or agents, shall have the right, but not the obligation, to routinely, but no more frequently than annually, audit Consultant's operations and records to confirm compliance. Nothing in this provision should be construed as providing Patexia with the right or obligation to supervise or monitor the actual Services performed by Consultant.
9. Third Party Beneficiary
Patexia is hereby named as a third party beneficiary of each Service Contract.
10. Entire Agreement.
The terms and conditions set forth in this Agreement and any additional or different terms expressly agreed by Business Member and Consultant shall constitute the entire agreement and understanding of Business Member and Consultant with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them