This Independent Contractor Agreement for Programming Services ("Agreement") is made this Friday 05th of September 2008 04:08:48 PM.

 

 

BETWEEN:                   The Found Corporation (the "Found Corp."),a corporation organized and existing under the laws of Arizona, with its head office located at:

 2156 North 1^st Avenue, Tucson AZ 85719.

 

 

AND:                            Client represented by user at address: 38.103.63.59 (the "Found Corp. Client"), a corporation organized and existing under the laws of the state corresponding to the representative who is currently authorizing this service.  The user of this website with the IP Address 38.103.63.59 is an active representative of the Client and is allowed to make decisions on behalf of the Client.  This agreement is legally binding based on the actions of Client’s representative.

 

RECITALS

 

A.    WHEREAS, Found Corp. Client is in the business of consulting, and performing web design, programming, telephony, and related services for clients like the Found Corp. Client (“Found Corp. Clients”).

 

B.    WHEREAS, Found Corp. Client has the need to retain the services of a Found Corp. to create website components, develop applications, deploy marketing and advertising services, make use of proprietary technologies and software, and consult and educate Found Corp. Client in the field of Business Technology and Internet Marketing.

 

C.    WHEREAS, Found Corp. has background and experience in performing certain programming, design, marketing, advertising, and consulting services that may be needed by the Found Corp. Client on a regularly scheduled basis for a set contract term.

 

D.    WHEREAS, Found Corp. Client desires to engage Found Corp. as an independent contractor to perform programming, design, marketing, advertising, and consulting services for Found Corp. Client and Found Corp. is willing to perform such services, on the terms and conditions set forth below.

 

 

NOW, THEREFORE, in consideration of the above recitals and the mutual promises and conditions contained in this Agreement, the Parties agree as follows:

 

 

 

1.     DEFINITONS

1.1.   PMC “Project Management and Collaboration Console” – Website used for all project management and collaboration between the Found Corporation and “Found Corp. Client”(s) located at https://swearby.us/

1.2.   “Client Representative” – User of IP Address 38.103.63.59 who speaks on behalf of Client and represents Client in a legally binding manner.

 

2.     TERM

 

This Agreement shall be effective commencing Friday 05th of September 2008 04:08:48 PM, and shall continue until Found Corp. services are specifically requested to be terminated by the client in written form to the following e-mail address: billing@foundco.com.  Failure to request such termination shall imply that services be renewed and continued, and that this contract is renewed and executed, and that the client be invoiced for such periods following the performance of such services by Found Corp.  Should this contract be terminated, Found Corp. will continue to provide web hosting services for Found Corp. Client at a reduced rate, in accordance with the Pricing Registry “Managed Hosting Fees” available for download in the PMC System.

 

 

 

 

3.     STATUS OF INDEPENDENT CONTRACTOR

 

This Agreement does not constitute a hiring by either party. It is the parties intentions that Found Corp. shall have an independent contractor status and not be an employee for any purposes, including, but not limited to the guidelines available in Arizona State Law. Found Corp. shall retain sole and absolute discretion in the manner and means of carrying out their activities and responsibilities under this Agreement. This Agreement shall not be considered or construed to be a partnership or joint venture, and the Found Corp. Client shall not be liable for any obligations incurred by Found Corp. unless specifically authorized in writing. Found Corp. shall not act as an agent of the Found Corp. Client, ostensibly or otherwise, nor bind the Found Corp. Client in any manner, unless specifically authorized to do so in writing.

 

4.     PROGRAMMING SERVICES

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4.1           Engagement and Services

Found Corp. Client hereby engages Found Corp., and Found Corp. accepts such engagement, subject to the terms and conditions contained herein, to perform for Found Corp. Client the services specifically described and outlined as “Milestones”, “Checklists”, and “Discussions” in The Found Corporation PMC System.   Since the services provided by The Found Corporation are different for each client, this agreement is binding only to services approved specifically by the client inside the PMC System.  Any and all tasks approved therein must fit within the quantity of consulting hours purchased by Found Corp. Client and to be carried out by Found Corp. ranging from 10 hours to 72 hours per month of consulting time depending on the plan, contract term, and setup fee selected by Found Corp. Client prior to engaging in this contract, and corresponding to the Pricing Registry document available for download from the Found Corp. PMC System.

 

4.2     Scope of Work

The parties intend that this Agreement shall act as a “master” agreement and that the terms hereof shall govern all services that are performed by the Found Corp. for the Found Corp. Client, unless of course the parties specifically agree that this Agreement shall not apply in a separate written agreement signed by authorized representative of both parties. The precise activities to be performed in each project milestone shall be included in separate “checklists” that shall be signed to both parties inside the PMC system. Unless the work orders specify otherwise, the work orders shall be subject to the terms and conditions of this Agreement. Each work order shall be successively dated and time shall be logged inside the PMC system for reference by the Found Corp. Client. Each project task shall set forth a description and specifications of the work to be performed and all tasks correspond to the compensation to be paid to the Found Corp. for such services.

 

4.3 Deliverables; Specifications

Found Corp. shall use its best efforts to meet any delivery dates for Deliverables set forth in the “Milestones”, “Checklists”, and “Discussion” available to both the Found Corp. Client and Found Corp. at https://swearby.us/, and to deliver Deliverables to Found Corp. Client that conforms to any project specifications set forth in such “Attachment(s)” available as “Files” inside the Project Management System. Found Corp. warrants that the Services will he performed promptly, diligently and in accordance with all reasonable professional standards for similar services, by the individual executing this Agreement, but are also bound by the time constraints and available development hours which the client has selected to be used and to pay for under each contract term and for each month(s) delivery of services. Deliverables shall include all computer programming code (in both object and source code form), scripts, all documentation and other written material relative thereto, and all other materials, items, media called for by the specifications or any project task  with the exception of proprietary source code or Documents owned by Found Corp. such as the “ObjectCode Framework” that resides on a global level for all clients and that is Licensed to Found Corp. Client by Found Corp. specifically for use on Found Corp. servers.

 

 

 

 

4.4  Reasonable diligence

Found Corp. shall use reasonable diligence to promptly perform the services described herein and to meet any delivery dates or project deadlines agreed to by the parties and to provide services that are in compliance with agreed specifications and project parameters. All such agreements must be contained and documented within the Project Management System available at https://swearby.us/ All services shall be provided in a professional and workmanlike manner and in compliance with standard industry standards and by qualified and experienced personnel secured by the Found Corp..

 

Found Corp. represents and warrants that it has no current commitments or obligations that will conflict with or otherwise interfere with or impede the performance of the services called for under this Agreement, with the exception of other client(s) which have been scheduled specifically to allow enough time in each month for Found Corp. to continue to deliver and complete the performance of exceptional services.

 

4.5  Work progress

Found Corp. shall continually communicate with the Found Corp. Client regarding progress made by the Found Corp. in performing the services. Upon request from the Found Corp. Client, Found Corp. shall prepare and deliver to the Found Corp. Client written reports summarizing progress in providing the services called for in this Agreement and bound by the approvals of “Milestones”, “Checklists”, and “Discussions” represented and timelogged in the Project Management System available on the PMC System.

 

 

5.     COMPENSATION

 

5.1.   Payment of Compensation

 

Found Corp. shall be entitled to compensation for performing those tasks and duties related to the PMC System project milestones as follows:

 

Monthly subscriptions range in price from $200.00 to $700.00 and range in amount of hours per month purchased from 10 to 72 hours. This flat charge covers 2-10 hours of premium phone support, all web hosting fees, and 8-60 hours of programming, design, and marketing work per month (depending on selected plan in accordance with PMC system). Our billing is retro-active, and you can request a report containing a breakdown of the 10 consulting hours you've purchased this month, or view the time log for your project on the PMC system.

 

Such compensation shall become due and payable to Found Corp. in the following time, place, and manner:

All invoicing is completed by the 10th of each month and is retro-active for the previous month. Payments should be made no later than 14 days after invoices are delivered. Delinquent accounts are subject to a 10% surcharge. All Payments need to be made electronically, if paper checks are mailed, those accounts will be subject to a bank filing fee of $15.00.

 

 

5.2.   Expenses

Found Corp. Client shall not be responsible for any expenses in addition to the compensation set forth in any work order unless specifically agreed in such work order.

 

 

6.     OWNERSHIP AND USE OF PROPRIETARY PROPERTY

 

6.1.   Proprietary rights acknowledgment

Found Corp. expressly acknowledges and agrees that any and all proprietary materials created by Found Corp. in the scope of providing service hereunder shall be created as “works made for hire” as defined in the United States Copyright Act and that Found Corp. Client shall be the true and lawful owner of all copyrights and other proprietary rights in and to such items and shall be considered to be the sole and exclusive author of such materials within the meaning of the United States Copyright Act. These items shall include, but shall not necessarily be limited to any and all deliverables resulting from the Found Corp.’s services or contemplated by this Agreement, all tangible results and proceeds of the Found Corp.’s services, work in progress, records, diagrams, notes, drawings, specifications, schematics, documents, designs, improvements, inventions, discoveries, developments, trademarks, trade secrets, customer lists, databases, software, programs, middleware, applications, solutions, (collectively referred to as "Proprietary Products") conceived, made or discovered by Found Corp., solely or in collaboration with others, during the period of this Agreement.

 

Furthermore, Found Corp. agrees to execute any and all documents and take all other actions necessary to vest full rights and ownership of such materials and the copyrights, patents, or other proprietary rights therefore in the Found Corp. Client, including but not limited to executing confirmations of the work for hire status of the Found Corp., executing copyright assignments irrevocably and fully assigning all copyrights to the Found Corp. Client. Found Corp. hereby waives any other rights in and to such Proprietary Products that may attach or arise under any federal, state, local, international laws or the laws of any other country or jurisdiction, including but not limited to so-called "moral rights."

 

6.2.   Previously created work

In the event that Found Corp. intends or plans to integrate any work that was previously created by the Found Corp. into any work product to be created in furtherance of the performance of services hereunder, the Found Corp. shall first provide written notice to the Found Corp. Client and seek Found Corp. Clients written approval of the incorporation of such items. In the event that Found Corp. Client consents, in its reasonable discretion, to the incorporation of such items into the work product to be created for the Found Corp. Client, the Found Corp. Client is hereby granted a worldwide, royalty free, perpetual, irrevocable license to use, distribute, modify, publish, and otherwise exploit the incorporated items in connection with the work product that is developed for the Found Corp. Client.

 

6.3.   Infringement

Found Corp. shall be the original author of all Deliverables and shall not provide any Deliverables or any portion of any Deliverable that infringes upon the intellectual property rights (copyright, patent, trademark, moral rights, privacy rights, trade secrets, or any other right) of any other party. Found Corp. hereby indemnifies and holds Found Corp. Client and Found Corp. Clients harmless from and against any alleged, threatened or actual infringement asserted by any third party, which indemnification shall include ongoing payment of costs and attorney fees of defending or otherwise addressing any such claimed infringement related to Found Corp.’s Deliverables.

 

6.4.   Representation and warranties

Found Corp. represents and warrants that it shall be the sole and exclusive author of all Deliverables and that no other party shall have any rights or claims thereto. Found Corp. shall not subcontract any work provided hereunder to any independent contractor. All work must be performed by the Found Corp. and its bona fide employees.

 

6.5.   Bug fixing

Found Corp. shall promptly fix any and all “bugs” or other defects in the Deliverables upon notice thereof from the Found Corp. Client. This obligation shall survive the termination of this Agreement and the delivery and acceptance of any Deliverables.

 

 

7.     CONFIDENTIAL INFORMATION

 

7.1.   Nondisclosure

Found Corp. will not, during or subsequent to the term of this Agreement, use Found Corp. Client's or any Found Corp. Client’s Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of Found Corp. Client or disclose Found Corp. Client's Confidential Information to any third party, without the advanced written authorization of the Found Corp. Client and/or the relevant Found Corp. Client. Found Corp. further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not limited to, limiting access to such information to individuals within its organization that have a bona fide need to know of such information, having each employee of Found Corp., if any, with access to any Confidential Information execute a nondisclosure agreement containing provisions and restrictions substantially similar to those contained in this Agreement.

 

Found Corp. agrees not to disclose or communicate, in any manner, either during or after Found Corp.’s agreement with Found Corp. Client, information about Found Corp. Client, its operations, clientele, or any other information, that relate to the business of Found Corp. Client including, but not limited to, the names of its customers, its marketing strategies, operations, or any other information of any kind which would be deemed confidential, a trade secret, a customer list, or other form of proprietary information of Found Corp. Client. Found Corp. acknowledges that the above information is material and confidential and that it affects the profitability of Found Corp. Client.

 

7.2.   Breach of confidentiality is a breach of this Agreement

Found Corp. understands that any breach of this provision, or that of any other Confidentiality and Non-Disclosure Agreement, is a material breach of this Agreement. To the extent Found Corp. feels they need to disclose confidential information, they may do so only after obtaining written authorization from a representative of the Found Corp. Client.

 

7.3.   Advertising

Found Corp. shall not be permitted to make any press releases or disclose to any other party, in any marketing or advertising material or any other means of communication, the existence of the relationship between Found Corp. Client and Found Corp. or the existence or any terms of conditions of this Agreement or that work is being performed relative to any Found Corp. Client.

 

 

7.4.   Definitions

For purposes of this Agreement, the term "Confidential Information" means and includes, any and all proprietary information of any nature or kind, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas. technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by Found Corp. Client either directly or indirectly in writing or orally. Confidential Information does not include information which (i) is known to Found Corp. at the time of disclosure to Found Corp. by Found Corp. Client or any Found Corp. Client as evidenced by written records of Found Corp., (ii) has become publicly known and made generally available through no wrongful act of Found Corp. or (iii) has been rightfully received by Found Corp. from a third party who is authorized to make such disclosure.

 

 

8.     NOTICE CONCERNING WITHHOLDING OF TAXES

 

Found Corp. recognizes and understands that it will receive an Internet tax statement and related tax statements, and will be required to file corporate and/or individual tax returns and to pay taxes in accordance with all provisions of applicable Federal and State law. Found Corp. hereby promises and agrees to indemnify the Found Corp. Client for any damages or expenses, including attorney's fees, and legal expenses, incurred by the Found Corp. Client as a result of independent contractor's failure to make such required payments.

 

 

9.     AGREEMENT TO WAIVE RIGHTS TO BENEFITS

 

Found Corp. hereby waives and foregoes the right to receive any benefits given by Found Corp. Client to its regular employees, including, but not limited to, health benefits, vacation and sick leave benefits, profit sharing plans, etc. This waiver is applicable to all non-salary benefits which might otherwise be found to accrue to the Found Corp. by virtue of their services to Found Corp. Client, and is effective for the entire duration of Found Corp.’s agreement with Found Corp. Client. This waiver is effective independently of Found Corp.’s employment status as adjudged for taxation purposes or for any other purpose. Neither this Agreement, nor any duties or obligations under this Agreement may be assigned by either party without the consent of the other.

 

 

10.  TERMINATION

 

This Agreement may be terminated prior to the completion or achievement of the PMC System milestones and checklists by either party giving 90 days written notice. Such termination shall not prejudice any other remedy to which the terminating party may be entitled, either by law, in equity, or under this Agreement.

 

Found Corp. Client may terminate this Agreement immediately upon written notice to the Found Corp. in the event that the Found Corp. substantially breaches or defaults under any of Found Corp.’s obligations contained in this Agreement or if the Found Corp. is unable to or refuses to perform services hereunder.

 

Upon the effective date of any termination of this Agreement, all legal obligation, rights and duties arising out of this Agreement shall terminate except that: (i) Found Corp. Client shall remain obligated to pay any balance due to the Found Corp. for services provided hereunder: (ii) the Confidentiality Restrictions, Ownership of Proprietary Rights Provisions, and Found Corp. provisions of this Agreement shall continue to apply and shall survive the termination of this Agreement as ongoing covenants between the parties; (iii) Found Corp. shall have the continuing obligation to return to the Found Corp. Client all tangible and intangible property of the customer and all versions of any Proprietary Products of the customer or developed for the Found Corp. Client during the effectiveness of this Agreement; and (iv) Found Corp. shall have the ongoing duty and obligation to confirm in writing and take all reasonable steps to secure proprietary right in the Proprietary Products developed pursuant to this Agreement in the name and exclusive ownership of the Found Corp. Client.

11.  NON-SOLICITATION

 

Found Corp.s shall not, during the Agreement and for a period of one year immediately following termination of this Agreement, either directly or indirectly, call on, solicit, or take away, or attempt to call on, solicit, or take away, any of the customers or clients of the Found Corp. Client on whom Found Corp. called or became acquainted with during the terms of this Agreement, either for their own benefit, or for the benefit of any other person, firm, corporation or organization.

 

 

12.  NON-RECRUIT

 

Found Corp. shall not, during this Agreement and for a period of one year immediately following termination of this agreement, either directly or indirectly, recruit any of Found Corp. Client’s employees for the purpose of any outside business.

 

 

13.  RETURN OF PROPERTY

 

On termination of this Agreement, or whenever requested by the parties, each party shall immediately deliver to the other party all property in its possession, or under its care and control, belonging to the other party to them, including but not limited to, proprietary information, customer lists, trade secrets, intellectual property, computers, equipment, tools, documents, plans, recordings, software, and all related records or accounting ledgers.

 

 

14.  EXPENSE ACCOUNTS

 

Found Corp. and the Found Corp. Client agree to maintain separate accounts in regards to all expenses related to performing the Scope of Work. Found Corp. is solely responsible for payment of expenses incurred pursuant to this Agreement unless provided otherwise in writing by a representative of the company. Found Corp. agrees to execute and deliver any agreements and documents prepared by Found Corp. Client and to do all other lawful acts required to establish document and protect such rights.

 

 

15.  WORKS FOR HIRE

 

Found Corp. agrees that the Scope of Work, all tasks, duties, results, inventions and intellectual property developed or performed pursuant to this Agreement are considered “works for hire” and that the results of said work is by virtue of this Agreement assigned to the Found Corp. Client and shall be the sole property of Found Corp. Client for all purposes, including, but not limited to, copyright, trademark, service mark, patent, and trade secret laws.

 

 

16.  LEGAL COMPLIANCE

 

Found Corp. is encouraged to treat all company employees, customers, clients, business partners and other affiliates with respect and responsibility. Found Corp. is required to comply with all laws, ethical codes and company policies, procedures, rules or regulations, including those forbidding sex harassment, discrimination, and unfair business practices.

 

 

17.  LICENSING, WORKERS’ COMPENSATION AND GENERAL LIABILITY INSURANCE

 

Found Corp. agrees to immediately supply the Found Corp. Client with proof of any licensing status required to perform the Scope of Work pursuant to this Agreement, Workers’ Compensation Coverage where required by law and General Liability Insurance, upon request of the Found Corp. Client.

18.  PERSONS HIRED BY INDEPENDENT CONTRACTOR

 

All persons hired by Found Corp. to assist in performing the tasks and duties necessary to complete the Scope of Work shall be the employees of Found Corp. unless specifically indicated otherwise in an agreement signed by all parties. Found Corp. shall immediately provide proof of Workers’ Compensation insurance and General Liability insurance covering said employees, upon request of the Found Corp. Client.

 

 

19.  NOTICES

 

Any notice to be given hereunder by any party to the other may be affected either by personal delivery in writing, or by mail, registered or certified, postage pre‑paid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraphs of this Agreement, but each party may change their address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of 30 days after mailing. Found Corp. agrees to keep Found Corp. Client current as to their business and mailing addresses, as well as telephone, facsimile, e-mail and pager numbers.

 

 

20.  ATTORNEY'S FEES AND COSTS

 

If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements incurred both before or after judgment in addition to any other relief to which such party may be entitled.

 

 

21.  MEDIATION AND ARBITRATION

 

Any controversy between the parties to this Agreement involving the construction or application of any of the terms, provisions, or conditions of this Agreement, shall on written request of either party served on the other, be submitted first to mediation and then if still unresolved to binding arbitration. Said mediation or binding arbitration shall comply with and be governed by the provisions of the Arizona Internet Laws unless the Parties stipulate otherwise. The parties shall each appoint one person to hear and determine the dispute and, if they are unable to agree, then the two persons so chosen shall select a third impartial arbitrator whose decision shall be final and conclusive upon both parties. The attorneys fees and costs of arbitration shall be borne by the losing party, as set forth in paragraph 18, unless the Parties stipulate otherwise, or in such proportions as the arbitrator shall decide.

 

 

22.  INDEMNIFICATION

 

Found Corp. shall defend, indemnify, hold harmless, and insure Found Corp. Client from any and all damages expenses or liability resulting from or arising out of, any negligence or misconduct on Found Corp.'s part, or from any breach or default of this Agreement which is caused or occasioned by the acts of Found Corp.. Found Corp.s shall insure that its employees and affiliates take all actions necessary to comply with the terms and conditions set forth in this Agreement. Found Corp. shall name Found Corp. Client as an additional insured on all related insurance policies including workers compensation, and general liability.

 

 

 

 

 

 

23.  CONTAINMENT OF ENTIRE AGREEMENT

 

This Agreement is an independent document and supersedes any and all other Agreements, either oral or in writing, between the parties hereto, except any Confidentiality, Trade Secret, Non-Compete, Non-Disclosure, Indemnification or Arbitration Agreement. This Agreement contains all of the covenants and Agreements between the parties, except for those set forth in any Confidentiality, Trade Secret, Non-Compete, Non-Disclosure, or Arbitration Agreement.

 

 

24.  REPRESENTATION

 

Each party of this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party hereto, or anyone acting on behalf of any party hereto, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement shall be effective only if it is in writing, signed and dated by all parties hereto.

 

 

25.  PARTIAL INVALIDITY

 

If any provision of this Agreement is held by a Court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.

 

 

26.  GOVERNING LAW

 

This Agreement shall be governed by, and construed under, the laws of the State of Arizona.

 

 

IN WITNESS WHEREOF, the parties hereto have duly entered and executed this Agreement as of the day and year first above written and represent and warrant that the party executing this Agreement on their behalf is duly authorized. This agreement is legally binding by the electronic signature presented on the authorization page in form of a checkbox.