Independent Contractor Agreement
Parties
This agreement is dated the date on which it is signed by the last of the parties.
This agreement is made between [Company (legal name and mailing address)] (the "Company") and [Contractor (individual's name and mailing address)] (the "Contractor").
Key Terms
"Services" means [Services (itemized list of the work and the value of each item)].
"Deliverables" means [Deliverables].
"Start Date" means [Start date].
"Initial Term" means 12 months.
"Fees" means [Fees (rate and method of compensation, for example an hourly rate or fixed fee)].
"Payment Period" means 30 days after the Company receives a valid invoice.
"Background Materials" means tools, software, templates, know-how, methods and other materials that the Contractor owned or developed before or independently of the Services.
"Liability Cap" means the total Fees paid or payable under this agreement in the 12 months before the event giving rise to liability.
"Governing Law" means the law of the State of Delaware.
"Forum" means the county in which the Company has its principal place of business.
Services
The Contractor must perform the Services, and deliver any Deliverables, in a professional and workmanlike manner consistent with generally accepted industry standards and applicable law, and must promptly notify the Company of any issue reasonably likely to delay or impair performance.
Either party may request a change to the Services or Deliverables. A change is effective only when the parties agree in writing on its scope and its effect on the Fees and timing.
Term and Termination
This agreement starts on the Start Date and continues for the Initial Term, and then month to month until either party gives the other written notice of non-renewal, unless terminated earlier under this clause (together, the "Term").
Either party may terminate this agreement for convenience by giving the other written notice at least 30 days in advance.
Either party may terminate this agreement immediately by written notice if the other party materially breaches it and does not cure the breach within 10 days after written notice describing the breach, or becomes insolvent, makes a general assignment for the benefit of creditors, or becomes subject to a bankruptcy proceeding that is not dismissed within 60 days.
On termination, the Contractor must stop performing the Services, deliver all completed Deliverables and work in progress paid for by the Company, and return or destroy Company Materials and Confidential Information as the Confidentiality clause requires. The Company must pay Fees properly due for Services performed through termination and approved expenses incurred before it. Termination does not affect rights and obligations accrued before it. The Fees and Expenses clause (for amounts due), the Confidentiality, Intellectual Property, Indemnification, Limitation of Liability and General clauses, the tax and benefits provisions of the Independent Contractor Status clause and, where this agreement contains them, the Freelance Worker Protection clause and the Data Protection and Security clause survive termination, together with any other provision that by its nature is intended to survive.
Independent Contractor Status
The Contractor is an independent contractor, not an employee, agent, partner or joint venturer of the Company. The Contractor controls the manner and means of performing the Services, including the hours and place of work, subject only to the agreed scope, deadlines and applicable law, and provides the Contractor's own equipment and tools, except Company systems needed to access Company data.
The Contractor may perform services for others during the Term, provided this does not breach the Confidentiality or Intellectual Property clauses. The Company does not guarantee any work beyond the Services.
The Contractor has no authority to bind the Company, incur obligations for it or make representations on its behalf, and may not use the Company's name or marks except as the Company authorizes in writing.
The Contractor is responsible for all federal, state and local income and self-employment taxes on the Fees and for any business license or permit the Contractor needs. The Contractor must give the Company a completed IRS Form W-9 before the first payment. The Company will report payments on the applicable IRS Form 1099 and will withhold taxes only where required by law. The Contractor is not eligible to participate in the Company's employee benefit plans.
Fees and Expenses
The Company must pay the Fees for Services properly performed within the Payment Period. The Company may withhold only an amount it disputes in good faith; it must promptly notify the Contractor of the dispute with reasons and pay the rest on time.
The Contractor must invoice monthly in arrears and submit each invoice within 5 business days after the end of each calendar month. Each invoice must itemize the Services performed, the Fees charged and any approved expenses.
The Company must reimburse reasonable, documented out-of-pocket expenses that it approves in writing in advance. The Contractor bears all other costs of performing the Services.
Freelance Worker Protection
Where the New York Freelance Isn't Free Act (New York General Business Law Article 44-A) or the New York City freelance worker law (New York City Administrative Code Title 20, Chapter 10) applies to this agreement: the Company must pay the Fees by the dates set by the Fees and Expenses clause and, where no date applies, no later than 30 days after the Services are completed; once the Contractor has started performance, the Company may not require, as a condition of timely payment, that the Contractor accept less compensation or provide more services or intellectual property rights than this agreement requires; and the Company must keep a copy of this agreement for the period that law requires.
Where California Business and Professions Code sections 18100 to 18107 apply to this agreement: the Company must pay the Fees by the dates set by the Fees and Expenses clause and, where no date applies, no later than 30 days after the Services are completed; once the Contractor has started performance, the Company may not require, as a condition of timely payment, that the Contractor accept less compensation or provide more services or intellectual property rights than this agreement requires; and the Company must keep a copy of this agreement for the period that law requires.
Confidentiality
"Confidential Information" means non-public information disclosed by or for the Company, in any form, that a reasonable person would understand to be confidential, including the materials, systems, data and access credentials the Company provides ("Company Materials"), business plans, customer information, technology and the terms of this agreement. It does not include information that the Contractor can show was lawfully known to the Contractor without a duty of confidentiality, becomes public through no breach of this agreement, is independently developed without use of Confidential Information, or is lawfully received from a third party without a duty of confidentiality.
The Contractor must use Confidential Information only to perform the Services, protect it with at least reasonable care, and disclose it only to persons who need to know it for the Services and are bound by written confidentiality obligations at least as protective as this clause. If the law requires disclosure, the Contractor must, where legally permitted, give the Company prompt notice and disclose only what is required.
At the Company's request or on termination, the Contractor must promptly return or securely destroy Confidential Information and Company Materials, except one archival copy kept only to meet legal requirements, which remains subject to this clause. The Contractor's confidentiality obligations continue for 3 years after this agreement ends, except that trade secrets remain protected for as long as they remain trade secrets under applicable law.
Under 18 U.S.C. section 1833(b), an individual is not held criminally or civilly liable under any federal or state trade secret law for disclosing a trade secret (a) in confidence to a federal, state or local government official, directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or (b) in a complaint or other document filed in a lawsuit or other proceeding, if the filing is made under seal. Nothing in this agreement prevents the Contractor from reporting a possible violation of law to a government agency.
Intellectual Property
"Work Product" means all deliverables, inventions, developments, designs, writings, software, data, content and other materials that the Contractor creates, alone or with others, for the Company in performing the Services, excluding Background Materials.
The Contractor hereby assigns to the Company all right, title and interest in the Work Product, including all intellectual-property rights, effective on creation, and must promptly disclose Work Product to the Company.
To the extent any Work Product is a specially ordered or commissioned work within a category listed in the definition of "work made for hire" in 17 U.S.C. section 101, the parties agree that it is a work made for hire owned by the Company. Any other Work Product is assigned under the Intellectual Property clause.
The Contractor retains ownership of the Background Materials. To the extent Background Materials are incorporated in or needed to use the Work Product, the Contractor grants the Company a perpetual, worldwide, irrevocable, transferable, sublicensable, royalty-free license to use, reproduce, modify, distribute, display and otherwise exploit them as part of the Work Product.
The Contractor must sign documents and take other reasonable actions the Company requests to confirm, register or enforce the Company's rights in the Work Product; the Company will reimburse the Contractor's reasonable out-of-pocket costs of doing so after termination. Where the Company owns the Work Product: if the Contractor does not sign a document the Company reasonably requests under this clause within 10 business days after the request, the Contractor irrevocably appoints the Company and its authorized officers as the Contractor's agent and attorney-in-fact, solely to sign and file that document in the Contractor's name with the same effect as if the Contractor had signed it; and, to the extent permitted by law, the Contractor waives and agrees not to assert any moral rights in the Work Product.
The assignment to the Company under the Intellectual Property clause does not apply to an invention that the Contractor develops entirely on the Contractor's own time without using the Company's equipment, supplies, facilities or trade secret information, except an invention that (a) relates, when it is conceived or reduced to practice, to the Company's business or its actual or demonstrably anticipated research or development, or (b) results from any work the Contractor performs for the Company. This clause is the written notice described in California Labor Code section 2872, given to the extent California Labor Code section 2870 applies to this agreement; it does not make the Contractor an employee of the Company.
Data Protection and Security
The Contractor must process personal data within the following scope only on the Company's documented instructions and only as necessary to perform the Services: [Personal data scope]. The Contractor must maintain reasonable administrative, technical and physical safeguards, promptly notify the Company of any actual or reasonably suspected unauthorized access to or loss of that data, cooperate with the Company's response, and not sell, retain, use or disclose the data for any other purpose except as required by law.
Compliance
Each party must comply with the laws that apply to its performance of this agreement, including anti-bribery, export-control, sanctions and data-protection laws.
Insurance
During the Term, the Contractor must maintain commercial general liability insurance of at least $1,000,000 per occurrence and professional liability insurance of at least $1,000,000 per claim and provide evidence of coverage on request.
Indemnification
The Contractor must defend, indemnify and hold harmless the Company and its officers, directors and employees from third-party claims, and resulting losses, damages, costs and reasonable attorneys' fees, to the extent arising from the Contractor's gross negligence, willful misconduct, breach of this agreement or an allegation that the Work Product infringes a third party's intellectual-property rights. This does not apply to the extent a claim arises from Company Materials, modifications not made by the Contractor or use outside this agreement.
A party seeking indemnification must promptly notify the indemnifying party of the claim; delay relieves the indemnifying party only to the extent it is prejudiced. The indemnifying party may control the defense with counsel reasonably acceptable to the indemnified party, but may not settle a claim in a way that admits fault by, imposes obligations on, or does not fully release the indemnified party without its written consent, not to be unreasonably withheld.
Limitation of Liability
To the fullest extent permitted by law, neither party is liable to the other for indirect, incidental, special, consequential, exemplary or punitive damages, or for lost profits, revenue or goodwill, arising out of this agreement, even if advised of their possibility.
To the fullest extent permitted by law, each party's total liability arising out of or relating to this agreement is limited to the Liability Cap. The cap does not apply to the Company's obligation to pay Fees, fraud, willful misconduct, liability for death or personal injury that cannot lawfully be limited, the Contractor's indemnity obligations, or breach of the Confidentiality or Intellectual Property clauses.
General
Notices under this agreement must be in writing and delivered personally, by nationally recognized overnight courier or by email to the Company at [Company notice address and email] and to the Contractor at [Contractor notice address and email], or to an updated address notified under this clause. A notice is effective on delivery, except that an email notice is effective when sent unless the sender receives a delivery-failure message.
The Contractor may not assign this agreement or subcontract material performance without the Company's prior written consent. The Company may assign this agreement without consent to an affiliate or in connection with a merger, reorganization or sale of substantially all of its relevant assets, if the assignee assumes it in writing. Any other attempted assignment is void.
Neither party is liable for delay or failure to perform, other than a payment obligation, caused by events beyond its reasonable control. The affected party must promptly notify the other, use reasonable efforts to mitigate and resume performance as soon as practicable. If the event continues for 30 days or more, either party may terminate this agreement by written notice.
This agreement and any dispute arising out of or relating to it are governed by the Governing Law, without regard to its conflict-of-laws rules. The parties submit to the exclusive jurisdiction of the state and federal courts located in the Forum for any action arising out of or relating to this agreement, and waive any objection to venue there.
A breach of the Confidentiality or Intellectual Property clauses may cause harm for which money damages are inadequate, and the affected party may seek injunctive or other equitable relief for an actual or threatened breach in addition to other remedies.
This agreement is the entire agreement between the parties about its subject matter and supersedes prior or contemporaneous understandings about it. An amendment or waiver is effective only if in writing and signed by both parties, and a waiver of one breach is not a waiver of another. If a provision is unenforceable, it is enforced to the maximum extent permitted and the rest of this agreement remains in effect. This agreement may be signed in counterparts and electronically.