SHEARWATER DATA
SERVICES AGREEMENT
1. Engagement; Services. Company hereby agrees to engage Shearwater as an independent contractor to provide Company with the services described in Order Form to this Agreement (the “Services”). Shearwater hereby accepts such engagement upon the terms and conditions set forth herein.
2. Term. The term of Shearwater’s engagement under this Agreement shall commence as of the Effective Date and shall continue for the duration described in Order Form (as amended) or the termination of this Agreement as provided in Section 15, (the “Term”) provided that unless this Agreement is terminated pursuant to Section 15, the parties may agree in writing to extend the Term for successive one (1) month additional periods.
3. Compensation; Expenses; Standard of Work.
3.1 As compensation for the performance of the Services, Company shall pay Shearwater the compensation specified in Order Form to this Agreement. Shearwater shall also be entitled to reimbursement for all reasonable travel and other expenses incurred by Shearwater in performing the Services.
3.2 Company shall not withhold payroll, state, federal, social security, employment or any other taxes from any compensation paid to Shearwater, and Shearwater shall be solely responsible for payment of any such taxes.
3.3 Shearwater will perform the Services in accordance with the terms of this Agreement. Shearwater will have exclusive control over the manner and means of performing the Services, including the choice of place and time, and will use Shearwater’s expertise and creative talents in performing the Services. Shearwater will provide, at Shearwater’s own expense, a place of work and all equipment, tools, and other materials necessary to complete the Services; however, to the extent necessary to facilitate performance of the Services and for no other purpose, Company may, in its discretion, make its equipment or facilities available to Shearwater at Shearwater’s request.
3.4 Any payment not received within fifteen (15) days of the due date as specified on Order Form will accrue interest at 1.5% per month. Company will be responsible for any and all expenses incurred by Shearwater associated with Shearwater’s collections efforts for any overdue payments.
4. Company Duties and Responsibilities. Company shall promptly provide Shearwater with all information necessary or desirable for Shearwater to perform the Services. Company assumes responsibility for any issues resulting from the content, inaccuracy, incompleteness, quality, or other traits of the information and materials provided by Company to Shearwater.
5. Protection of Trade Secrets and Confidential Information.
5.1 “Confidential Information” means all nonpublic information (in whatever form) relating to or arising from Company’s business (as conducted or planned to be conducted) disclosed by Company to Shearwater prior to or after the Effective Date, whether disclosed in written, oral, or electronic form, including, without limitation: trade secrets; know-how; inventions (whether or not patent protection is sought); concepts; code, algorythms, chemical formulae; processes; materials; specifications; production methods; research & development programs; programs or strategy, information concerning the manner and details of Company's operations, including its organization and management, nonpublic information concerning its products, services, equipment, and systems, financial information including all information contained in financial statements, pricing and cost information, Company policies, procedures, business plans and strategies; identities of, and information regarding Company’s relationships with, Company's customers, customer reps, industry contacts, prospects, distributors, Shearwater and vendors utilized in Company's business; nonpublic forms, contracts and other documents used in Company's business; information concerning Company's employees, agents and Shearwaters, if any; the nature and content of computer software or other systems used in Company's business, whether proprietary to Company or used by Company under license from a third party; and prospective and executed contracts and other business transactions and arrangements. Confidential Information includes information obtained under confidentiality obligations by Company from a third party, the Work Product and any materials provided to Shearwater by Company.
Confidential Information does not include information that: (a) already lawfully known by Shearwater at the time of first receipt from Company and is not subject to any other nondisclosure agreement between the parties or between Shearwater and a third party; (b) was in the public domain at the time it was disclosed to Shearwater; or (c) entered the public domain after it was disclosed to the Shearwater through no fault of Shearwater or its employees, agents or subcontractors. Shearwater may also disclose Confidential Information of Company to the extent disclosure is required to be disclosed by a court or governmental authority having jurisdiction over Shearwater, provided that Shearwater gives Company prompt written notice of the request prior to any disclosure and cooperates with Company, at Company’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
5.2 Shearwater shall hold all Confidential Information in confidence and shall not, without Company’s express authorization: (i) use any Confidential Information for any purpose, other than in performance of the Services; or (ii) disclose or otherwise communicate any Confidential Information outside of Company. Shearwater’s obligations under this Section 5 shall apply at all times during the term of this Agreement and for two (2) years thereafter.
5.3 Shearwater acknowledges that during Shearwater's engagement with Company, Shearwater will have access to Confidential Information, that unauthorized disclosure of Confidential Information will damage Company's business, and that the restrictions contained in this Agreement are reasonable and necessary for the protection of Company's legitimate business interests. All documents and recorded material containing Confidential Information, whether documentary or electronic, shall remain the property of Company, and Shearwater shall return to Company upon request and upon termination or expiration of this Agreement, all such documents and recorded material and all other Confidential Information of Company including, without limitation, all Work Product, and all copies, notes or abstracts of any of the foregoing and all materials provided by Company to Shearwater. Shearwater acknowledges that its misuse or disclosure or threatened misuse or disclosure of Company’s Confidential Information will cause irreparable harm to the Company and the Company shall have the right to seek injunctive relief in addition to all other remedies available at law or in equity.
6. Work Product. All right, title and interest in and to all inventions, ideas, discoveries, intellectual property and improvements, and any material, deliverables, data, or results, in either case, made, conceived, created or authored by Shearwater in the performance of the Services during the Term of this Agreement or any extension hereof and all intellectual property rights in the foregoing (the items described in above shall be referred to as the “Work Product”) shall be solely and exclusively owned by Company. Shearwater further acknowledges and agrees that the Work Product constitutes works made for hire and shall be solely owned by Company, and to the extent such does not constitute works made for hire under applicable law, Shearwater agrees to assign and hereby assigns all rights thereto to Company. Notwithstanding the foregoing, Company acknowledges and agrees that the incorporation of Shearwater’s pre-existing knowledge, know-how, techniques, ideas, public domain or common or generic elements shall not constitute Work Product and Shearwater shall retain ownership of such pre-existing materials.
7. Severability. It is the desire and intent of the parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular portion of this Agreement shall be deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and in lieu of such illegal, invalid or unenforceable provision, there shall be added as part of this Agreement, a provision as similar in terms as may be possible and be legal, valid and enforceable.
8. Independent Contractor Status. The parties intend that an independent contractor relationship will be created by this Agreement. Shearwater shall complete the Services rendered hereunder according to its own means and method of work which shall be in the control of Shearwater, but which shall be subject to periodic review by the Company as to the results of the work. Shearwater shall not be considered an agent or employee of the Company for federal tax or unemployment insurance tax or other purpose, nor is Shearwater entitled to any of the benefits that the Company provides for its employees. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Company and Shearwater. Subject to the terms and conditions of this Agreement, it is further understood that Shearwater is free to contract for similar services with other parties while it is under contract with the Company
9. Waiver of Breach. A waiver by Company or Shearwater of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by the other party.
10. Counterparts. The parties may execute this Agreement in any number of counterparts, each of which will be deemed an original, and all of which, when taken together will constitute one agreement.
11. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflicts of law principles that would require the application of the law of a different state.
12. Assignment. This Agreement shall be binding upon each party’s permitted successors and assigns. This Agreement may not be assigned by either party without the prior written consent of the other party provided that either party may assign this Agreement to its successor in interest in the event of a sale of all or substantially all of its assets or outstanding security interests without the other party’s consent. Any assignment in violation of this Section 12 shall be null and void.
13. Attorneys’ Fees. 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 attorneys’ fees, costs and necessary disbursements in addition to such other relief to which such party may be entitled.
14. Entire Agreement; Modification. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements or other communications between the parties with respect to the subject matter hereof. This Agreement may not be changed except in writing executed by all the parties hereto.
15. Termination. Either party may terminate this Agreement by providing to the other party thirty (30) days written notice of that party’s desire to terminate this Agreement. Shearwater may immediately terminate this Agreement, or at its option, suspend work, if Company fails to pay an invoice when due. Termination of this Agreement by either party shall not relieve Company of its obligation to pay Shearwater for all work completed prior to the effective date of such termination.
16. Non-Solicitation; Non-Circumvention. Company agrees not to recruit, divert, or solicit the employment of Shearwater’s employees or contractors during the Term and for a period of one (1) year following the termination of this Agreement. Company further agrees not to enter into any agreement, transaction, or arrangement with any person or entity providing services similar to those of Shearwater that Shearwater has introduced, directly or indirectly, to the Company for a period of one (1) year following the termination of this Agreement.
17. Publicity. Company agrees that Shearwater may and is hereby authorized to use Company’s name in connection with the promotion of Shearwater’s business and services.
18. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE PRACTICE, ARE HEREBY DISCLAIMED.
19. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES AND EXPENSES PAID BY COMPANY TO SHEARWATER FOR SERVICES PERFORMED UNDER THIS AGREEMENT.
