CONSULTING AGREEMENT
This Consulting
Agreement (“Agreement”) is made between Bright
Hub, Inc., a Delaware corporation having its principal place of business at 270
River Street, Suite 405, Troy, New York 12180 (“Company”),
and (“Contributor/Reviewer”).
Company desires
to have Contributor/Reviewer perform consulting services for Company and Contributor/Reviewer
desires to perform such services for Company, subject to and in accordance with
the terms and conditions of this Agreement.
NOW, THEREFORE,
the parties agree as follows:
1.
SERVICES.
1.1
Statements of Work. From time to time, Company and Contributor/Reviewer
may execute statements of work, substantially in the form attached hereto as Exhibit A,
that describe the specific services to be performed by Contributor/Reviewer, including
any work product to be delivered by Contributor/Reviewer (as executed by the parties,
a “Statement of Work”). Each Statement
of Work will expressly refer to this Agreement, will form a part of this Agreement,
and will be subject to the terms and conditions contained herein.
1.2
Performance of Services. Contributor/Reviewer will perform the consulting
services specified in each Statement of Work (“Services”)
in accordance with the terms and conditions of this Agreement and of each Statement
of Work.
1.3 Payment. Company will pay Contributor/Reviewer
fees in accordance with the terms set forth in each Statement of Work. If
the Statement of Work requires Contributor/Reviewer to complete certain milestones,
Company’s payment obligation will be expressly subject to Contributor/Reviewer’s
completion of such milestones to Company’s reasonable satisfaction.
Unless otherwise specified in the Statement of Work, Company will not reimburse
Contributor/Reviewer for any expenses incurred by Contributor/Reviewer in connection
with performing Services. Subject to the foregoing, Company will pay each
invoice submitted by Contributor/Reviewer within thirty (30) days following receipt
thereof.
2.
RELATIONSHIP OF PARTIES.
2.1 Independent Contractor.
Contributor/Reviewer is an independent contractor and is not an agent or employee
of, and has no authority to bind, Company by contract or otherwise. Contributor/Reviewer
will perform the Services under the general direction of Company, but Contributor/Reviewer
will determine, in Contributor/Reviewer’s sole discretion, the manner and
means by which the Services are accomplished, subject to the requirement that Contributor/Reviewer
will at all times comply with applicable law. Company has no right or authority
to control the manner or means by which the Services are accomplished.
2.2 Employment Taxes and Benefits.
Contributor/Reviewer will report as self-employment income all compensation received
by Contributor/Reviewer pursuant to this Agreement. Contributor/Reviewer will
indemnify Company and hold it harmless from and against all claims, damages, losses,
costs and expenses, including reasonable fees and expenses of attorneys and other
professionals, relating to any obligation imposed by law on Company to pay any withholding
taxes, social security, unemployment or disability insurance, or similar items in
connection with compensation received by Contributor/Reviewer pursuant to this Agreement.
Contributor/Reviewer will not be entitled to receive any vacation or illness payments
or to participate in any plans, arrangements, or distributions by Company pertaining
to any bonus, stock option, profit sharing, insurance or similar benefits for Company’s
employees.
2.3 Liability Insurance. Contributor/Reviewer
will maintain adequate insurance to protect Contributor/Reviewer from the following:
(i) claims under workers’ compensation and state disability acts; (ii) claims
for damages because of bodily injury, sickness, disease or death that arise out
of any negligent act or omission of Contributor/Reviewer; and (iii) claims for damages
because of injury to or destruction of tangible or intangible property, including
loss of use resulting therefrom, that arise out of any negligent act or omission
of Contributor/Reviewer.
3.
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.
3.1 Definition of Innovations.
Contributor/Reviewer agrees to disclose in writing to Company all inventions, products,
designs, drawings, notes, documents, information, documentation, improvements, works
of authorship, processes, techniques, know-how, algorithms, technical and business
plans, specifications, hardware, circuits, computer languages, computer programs,
databases, user interfaces, encoding techniques, and other materials or innovations
of any kind that Contributor/Reviewer may make, conceive, develop or reduce to practice,
alone or jointly with others, in connection with performing Services or that result
from or that are related to such Services, whether or not they are eligible for
patent, copyright, mask work, trade secret, trademark or other legal protection
(collectively, “Innovations”).
3.2 Ownership of Innovations. Contributor/Reviewer
and Company agree that, to the fullest extent legally possible, all Innovations
will be works made for hire owned exclusively by Company. Contributor/Reviewer
agrees that, regardless of whether the Innovations are legally works made for hire,
all Innovations will be the sole and exclusive property of Company. Contributor/Reviewer
hereby irrevocably transfers and assigns to Company, and agrees to irrevocably transfer
and assign to Company, all right, title and interest in and to the Innovations,
including all worldwide patent rights (including patent applications and disclosures),
copyright rights, mask work rights, trade secret rights, know-how, and any and all
other intellectual property or proprietary rights (collectively, “Intellectual
Property Rights”) therein. At Company’s request
and expense, during and after the term of this Agreement, Contributor/Reviewer will
assist and cooperate with Company in all respects and will execute documents, and,
subject to the reasonable availability of Contributor/Reviewer, give testimony and
take such further acts reasonably requested by Company to enable Company to acquire,
transfer, maintain, perfect and enforce its Intellectual Property Rights and other
legal protections for the Innovations. Contributor/Reviewer hereby appoints
the officers of Company as Contributor/Reviewer’s attorney-in-fact to execute
documents on behalf of Contributor/Reviewer for this limited purpose.
3.3 Moral Rights. Contributor/Reviewer
also hereby irrevocably transfers and assigns to Company, and agrees to irrevocably
transfer and assign to Company, and waives and agrees never to assert, any and all
Moral Rights (as defined below) that Contributor/Reviewer may have in or with respect
to any Innovation, during and after the term of this Agreement. “Moral
Rights” mean any rights to claim authorship of any Innovation,
to object to or prevent the modification or destruction of any Innovation, to withdraw
from circulation or control the publication or distribution of any Innovation, and
any similar right, existing under judicial or statutory law of any country in the
world, or under any treaty, regardless of whether or not such right is called or
generally referred to as a “moral right.”
3.4 Related Rights. To the extent
that Contributor/Reviewer owns or controls (presently or in the future) any patent
rights, copyright rights, mask work rights, trade secret rights, or any other intellectual
property or proprietary rights that block or interfere with the rights assigned
to Company under this Agreement (collectively, “Related Rights”),
Contributor/Reviewer hereby grants or will cause to be granted to Company a non-exclusive,
royalty-free, irrevocable, perpetual, transferable, worldwide license (with the
right to sublicense) to make, have made, use, offer to sell, sell, import, copy,
modify, create derivative works based upon, distribute, sublicense, display, perform
and transmit any products, software, hardware, methods or materials of any kind
that are covered by such Related Rights, to the extent necessary to enable Company
to exercise all of the rights assigned to Company under this Agreement.
4.
CONFIDENTIAL INFORMATION. For purposes of this Agreement,
“Confidential Information” means and will
include: (i) any information, materials or knowledge regarding Company and its business,
financial condition, products, programming techniques, customers, suppliers, technology
or research and development that is disclosed to Contributor/Reviewer or to which
Contributor/Reviewer has access in connection with performing Services; (ii) the
Innovations; and (iii) the existence and terms and conditions of this Agreement.
Confidential Information will not include, however, any information that is or becomes
part of the public domain through no fault of Contributor/Reviewer or that Company
regularly gives to third parties without restrictions on use or disclosure.
Contributor/Reviewer agrees to hold all Confidential Information in strict confidence,
not to use it in any way, commercially or otherwise, except in performing the Services,
and not to disclose it to others. Contributor/Reviewer further agrees to take
all action reasonably necessary to protect the confidentiality of all Confidential
Information including, without limitation, implementing and enforcing procedures
to minimize the possibility of unauthorized use or disclosure of Confidential Information.
Upon Company’s request, Contributor/Reviewer will promptly return to Company
all tangible items or embodiments containing or consisting of Confidential Information
and all copies thereof (including electronic copies).
5.
WARRANTIES.
5.1 Competitive Activities.
During the term of this Agreement, Contributor/Reviewer will not, directly or indirectly,
in any individual or representative capacity, engage or participate in or provide
services to any business that is competitive with the types and kinds of business
being conducted by Company.
5.2 Pre-existing Obligations.
Contributor/Reviewer represents and warrants that Contributor/Reviewer has no pre-existing
obligations or commitments (and will not assume or otherwise undertake any obligations
or commitments) that would be in conflict or inconsistent with, or that would hinder
Contributor/Reviewer’s performance of its obligations under this Agreement.
5.3 Solicitation of Services.
Because of the trade secret subject matter of Company’s business, Contributor/Reviewer
agrees that, during the term of this Agreement and for a period of one (1) year
thereafter, it will not solicit the services of any of Company’s employees,
Contributor/Reviewers, suppliers or customers for Contributor/Reviewer’s own
benefit or for the benefit of any other person or entity.
6. INDEMNIFICATION.
Contributor/Reviewer will indemnify and hold harmless Company from and against all
claims, damages, losses and expenses, including court costs and reasonable attorneys’
fees, arising out of or resulting from, and, at Company’s option, Contributor/Reviewer
will defend Company against:
(i) any action by a third party
against Company that is based on a claim that any Services, the results of any Services
(including any Innovations), or Company’s use thereof, infringe, misappropriate
or violate a third party’s Intellectual Property Rights; and
(ii) any action by a third party against
Company that is based on any negligent act or omission or willful conduct of Contributor/Reviewer
and that results in: (a) bodily injury, sickness, disease or death; (b) injury or
destruction to tangible or intangible property (including computer programs and
data) or any loss of use resulting therefrom; or (c) the violation of any statute,
ordinance, or regulation.
7.
TERM AND TERMINATION.
7.1 Term. This Agreement will commence
on the Effective Date and, unless terminated earlier in accordance with the terms
of this Agreement, will remain in force and effect for as long as Contributor/Reviewer
is performing Services pursuant to a Statement of Work.
7.2 Termination for Breach. Either
party may terminate this Agreement (including all Statements of Work) if the other
party breaches any material term of this Agreement and fails to cure such breach
within ten (10) days following written notice thereof from the non-breaching party.
7.3 Termination for Convenience.
Company may immediately terminate this Agreement (including all Statements of Work)
at any time, for any reason or no reason, by written notice to Contributor/Reviewer.
7.4 Effect of Termination.
(a) Upon the expiration or any termination
of this Agreement for any reason, Contributor/Reviewer will promptly deliver to
Company all Innovations, including all work in progress on any Innovations and all
versions and portions thereof.
(b) Upon the expiration or any termination
of this Agreement (except termination of this Agreement pursuant by Company pursuant
to Section 7.2 for breach by Contributor/Reviewer), Company will pay Contributor/Reviewer
any amounts that are due and payable under Section 1.2 for Services performed
by Contributor/Reviewer prior to the effective date of expiration or termination.
(c) Upon the expiration or termination
of this Agreement for any reason, Contributor/Reviewer will promptly notify Company
of all Confidential Information in Contributor/Reviewer’s possession or control
and will promptly deliver all such Confidential Information to Company, at Contributor/Reviewer’s
expense and in accordance with Company’s instructions.
7.5 Survival. The provisions of
Sections 2.2, 3, 4, 5.3, 6, 7.4, 7.5, 8 and 9 will survive the expiration or termination
of this Agreement.
8.
LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND
IN CONNECTION WITH THIS AGREEMENT, EVEN IF COMPANY HAS BEEN INFORMED IN ADVANCE
OF THE POSSIBILITY OF SUCH DAMAGES.
9.
GENERAL.
9.1 No Election of Remedies.
Except as expressly set forth in this Agreement, the exercise by Company of any
of its remedies under this Agreement will be without prejudice to its other remedies
under this Agreement or available at law or in equity.
9.2 Assignment. Contributor/Reviewer
may not assign or transfer any of Contributor/Reviewer’s rights or delegate
any of Contributor/Reviewer’s obligations under this Agreement, in whole or
in part, without Company’s express prior written consent. Any attempted
assignment, transfer or delegation, without such consent, will be void. Subject
to the foregoing, this Agreement will be binding upon and will inure to the benefit
of the parties permitted successors and assigns.
9.3 Equitable Remedies. Because
the Services are personal and unique and because Contributor/Reviewer will have
access to Confidential Information of Company, Company will have the right to enforce
this Agreement and any of its provisions by injunction, specific performance or
other equitable relief, without having to post a bond or other consideration, in
addition to all other remedies that Company may have for a breach of this Agreement.
9.4 Attorneys’ Fees.
If any action is necessary to enforce the terms of this Agreement, the substantially
prevailing party will be entitled to reasonable attorneys’ fees, costs and
expenses in addition to any other relief to which such prevailing party may be entitled.
9.5 Governing Law. This Agreement
will be governed by and construed in accordance with the laws of the State of New
York, excluding that body of law pertaining to conflict of laws. Any legal
action or proceeding arising under this Agreement will be brought exclusively in
the federal or state courts of New York and the parties hereby irrevocably consent
to the personal jurisdiction and venue therein.
9.6 Severability. If any provision
of this Agreement is held invalid or unenforceable by a court of competent jurisdiction,
the remaining provisions of the Agreement will remain in full force and effect,
and the provision affected will be construed so as to be enforceable to the maximum
extent permissible by law.
9.7 Notices. All notices required
or permitted under this Agreement will be in writing and delivered by confirmed
facsimile transmission, by courier or overnight delivery service, or by certified
mail, and in each instance will be deemed given upon receipt. All notices
will be sent to the addresses set forth above or to such other address as may be
specified by either party to the other in accordance with this Section.
9.8 Entire Agreement. This Agreement,
together with all Statements of Work, constitutes the complete and exclusive understanding
and agreement of the parties with respect to the subject matter hereof and supersedes
all prior understandings and agreements, whether written or oral, with respect to
the subject matter hereof. In the event of a conflict, the terms and conditions
of each Statement of Work will take precedence over the terms and conditions of
this Agreement. Any waiver, modification or amendment of any provision of
this Agreement will be effective only if in writing and signed by the parties hereto.
9.9 Waiver. The waiver of any breach
of any provision of this Agreement will not constitute a waiver of any subsequent
breach of the same other provisions hereof.
9.10 Counterparts. This Agreement may be executed
in counterparts, each of which will be deemed an original, but all of which together
will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.
