Ideasicle X Freelancer Agreement
This Freelancer Agreement (the “Agreement”) is entered into as of this date (the “Effective Date”) by and between Ideasicle X, LLC, a Massachusetts Limited Liability Company whose address is 7 Juniper Road, South Hamilton, MA, 01982 (“Ideasicle X”) and yourself (hereinafter, the“Freelancer”), each a “Party” and collectively the “Parties.”
WHEREAS, the Freelancer wishes to create a profile on https://app.ideasiclex.com/ (the “Website”) and engage with users of the Ideasicle X platform and Website to provide various services; and
WHEREAS, the Parties wish to enter into this Agreement to set forth their mutual rights and obligations.
NOW THEREFORE, in consideration of the foregoing and of other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:
1. SERVICES. Freelancer shall provide idea development and related services (the “Services”) to customers (the “Customers”) using the Website. Through the performance of Services, Freelancer shall render work products to the satisfaction of the Customer, including written material, images, designs, and the like (the “Deliverables”).
Freelancer shall perform the Services for the Customers in a timely manner.
Freelancer and all personnel employed or engaged by Freelancer to provide the Services shall conduct themselves in a professional manner in all communications with Customers and other communications on the Website.
All Deliverables delivered by Freelancer to Customers shall be of good quality and reflect a professional manner of preparation.
Freelancer shall accept projects or otherwise agree to perform Services for a Customer only if Freelancer is able to devote adequate time to the performance of Services, agree to the payment amount and terms proposed by the Customer, and agree to render Deliverables in strict conformity with the Customer’s stated parameters, requirements, and conditions.
2. TERMS OF USE. The terms and conditions of the Website Terms of Use (the “TOU”), as the TOU may be amended from time to time [Terms Of Use], are hereby incorporated by reference and made a part hereof. Freelancer hereby acknowledges and agrees that its use of the Website and interactions with other Users (as defined in the TOU), including its performance of Services for any Customers, are subject to the terms and conditions set forth in the TOU, and any obligations of Freelancer pursuant to the TOU are in addition to the obligations set forth in this Agreement and are made a part hereof.
3. FEES. In exchange for the Services, the Company shall pay the Freelancer Customer approved fees for a given Deliverable (the “Compensation”). Company shall pay all Compensation due to Freelancer within thirty (30) days of receipt of payment from Customer. Receipt of payment by the Company from the Customer for the Services is a condition precedent to payment by the Company to the Freelancer. The Freelancer shall receive such Compensation in accordance with the Company’s third-party payment processor’s payment disbursement procedures, terms, and conditions, which shall be determined and may be revised from time to time at such third-party payment processor’s sole discretion. All disputes between Freelancers and the Company related to payments shall be resolved directly between the Freelancers and the Company.
4. RELATIONSHIP OF THE PARTIES. The Parties agree that Freelancer is an independent contractor and there is no employer-employee, partnership, joint venture, or agent-principal relationship created herein. The Parties agree to the following rights with respect to such relationship: (i) Freelancer may represent, perform services for and be employed by such additional clients, persons or companies as Freelancer sees fit, subject, in all cases, to the confidentiality restrictions in this Agreement; (ii) Freelancer has the sole right to control and direct the means, manner and method by which the Services will be performed, provided, however, Freelancer agrees that Freelancer will perform the Services at all times in accordance with generally accepted and approved methods and practices in its field and in compliance with applicable laws; (iii) Freelancer has the right to perform the Services at any appropriate place, location or time; (iv) Freelancer will furnish all equipment and materials used to provide the Services; and (v) Ideasicle X is not required to use Freelancer exclusively. Freelancer is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, Ideasicle X or to bind Ideasicle X in any manner. Further, nothing in this Agreement shall be construed or applied to create a joint venture, partnership, or employment relationship.
5. INTELLECTUAL PROPERTY. Effective immediately upon Customer’s payment of the agreed-upon Compensation pursuant to this Agreement, Freelancer grants to the Customer all intellectual property rights to the Deliverables, including, without limitation, all copyrights, patents, and trademarks, and the Customer shall have an unrestricted free right to use all Deliverables as it wishes for any and all legal purposes. In furtherance of the foregoing, Freelancer shall create all Deliverables as work made for hire. To the extent any of the Deliverables do not qualify as, or otherwise fails to be, work made for hire, Freelancer shall, and hereby does: (a) assign, transfer, and otherwise convey to Customer, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to such Deliverables, including all intellectual property rights therein; and (b) irrevocably waives any and all claims Freelancer may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables. Freelancer hereby grants Customer a perpetual, royalty-free, irrevocable license to use any intellectual property owned by Freelancer that is incorporated into the Deliverables and shall obtain any necessary license on behalf of Customer from all third parties whose intellectual property is incorporated by Freelancer into the Deliverables. “Deliverables” means all final work product provided by Freelancer to the Customer pursuant to the Services. Freelancer shall own any and all intellectual property developed by Freelancer during the performance of the Services for the Customer under this Agreement (i) that is not incorporated into the Deliverables (including but not limited to unused concepts, ideas, or drafts), or (ii) that may be generally and routinely provided to Freelancer’s customers in the regular course of Freelancer’s business (including but not limited to methodologies, procedures, forms, and research tools).
6. TERMINATION. Either Party may terminate this Agreement at any time upon written notice to the other Party (including via email or other written communication). Termination of this Agreement shall not automatically terminate any separate agreement that may exist between the Freelancer and any Customer except as provided therein, and Freelancer shall continue to be bound by Ideasicle X’s Terms of Use (and all documents and agreement incorporated therein by reference) after termination of this Agreement. All obligations relating to Intellectual Property (Section 5), General Release & Indemnification (Section 8), Limitation on Liability (Section 9), and Confidentiality (Section 10), and any other terms necessary to accomplish the intended purposes of this Agreement, shall survive the expiration or termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES. Freelancer represents and warrants to Ideasicle X, as of the date of this Agreement and continuously thereafter throughout the entire term of this Agreement, that:
(a) it has the full right, power, capacity, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under this Agreement;
(b) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of Freelancer, enforceable against Freelancer in accordance with its terms;
(c) it is sole and exclusive legal and beneficial owner of the entire right, title, and interest in and to the Deliverables, including all intellectual property rights relating thereto;
(d) the Deliverables, and Customer’s use thereof and rights obtained thereto pursuant to Section 4, above, is and will be free and clear of all encumbrances, liens, and security interests of any kind;
(e) its grant of the rights and licenses under this Agreement will not (i) conflict with or violate any applicable law, (ii) require the consent, approval, or authorization of any third party, and (iii) require the provision of any payment or other consideration to any third party;
(f) it has not granted and will not at any time grant any license or other contingent or non-contingent right, title, or interest under or relating to the Deliverables that does or will conflict with or otherwise affect this Agreement, including any of Freelancer’s representations, warranties or performance or Customer’s rights or licenses hereunder;
(g) when used by Customer in accordance with this Agreement, to Freelancer’s actual knowledge, no Deliverable as delivered by Freelancer will (i) infringe, misappropriate, or otherwise violate any intellectual property right or other right of any third party or (ii) violate any applicable law;
(h) to Freelancer’s actual knowledge, there is no settled, pending, or threatened litigation, claim, or proceeding (i) alleging that any use of the Deliverables does or would infringe, misappropriate, or otherwise violate any copyright, patent, trade secret, or other intellectual property right of any third party, or (ii) challenging Freelancer’s ownership of or right to use or license any of the Deliverables;
(j) when delivered to and used by Customer, the Deliverables will not contain any Harmful Code. For purposes of this Agreement, “Harmful Code” means any: (A) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (B) time bomb, drop-dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person or entity, or otherwise deprive Customer of its lawful right to use the Deliverables;
(k) it has not made any misrepresentation or material omission regarding its qualifications, experience, background, or other information that may reasonably affect Ideasicle X’s or Customers’ decisions to engage Freelancer’s services in (i) its profile on Ideasicle X’s platform and Website or (ii) any of its publicly-accessible social media profiles (e.g. LinkedIn).
8. GENERAL RELEASE & INDEMNIFICATION. Freelancer expressly releases Ideasicle X and Ideasicle X’s owners, managers, officers, employees, subcontractors, and/or agents from any and all liability and claims for damages of any kind whatsoever (including, without limitation, attorney’s fees and costs), arising from any cause whatsoever, related to the Services, except for such causes arising out of Company’s failure to make payment to Freelancer. Freelancer hereby agrees to indemnify, defend, and hold harmless Ideasicle X, as well as Ideasicle X’s owners, officers, employees, subcontractors, and/or agents, from and against any and all claims for damages (including, without limitation, attorney’s fees and costs) arising from (1) Customer’s use of the Services, (2) Freelancer’s use of any information or documents supplied by Customers, (3) any act or omission by Freelancer, or (4) any breach by Freelancer of the representations and warranties herein. Regarding the duty to defend, (1) Ideasicle X shall notify Freelancer as soon as practicable when exercising its rights under this Section, and (2) Freelancer shall keep Ideasicle X reasonably apprised of the status of the defense and shall obtain Ideasicle X’s prior written consent to any settlement.
9. LIMITATION ON LIABILITY. Under no circumstances shall Ideasicle X be liable for any special, indirect, incidental, or consequential damages of any kind or nature whatsoever, arising out of or in any way related to this Agreement, regardless of the legal theory upon which such claim for damages is based, even if such damages could have been reasonably foreseen.
10. CONFIDENTIALITY. The Parties acknowledge that in the course of working together in the performance of this Agreement, each Party may be exposed to certain confidential information of the other Party and of Customers, including but not limited to information regarding business operations, market research, new product development, functional systems, financial information and practices, trade secrets, plans and future activities, and business and marketing information of Ideasicle X and/or Customers, and/or other information marked as “confidential” or identified as confidential by either Party or a Customer in any manner (collectively, “Confidential Information”). Confidential Information shall include information delivered in any format (including but not limited to written, electronic, or oral formats), and shall include all non-public information disclosed by each Party. Each Party agrees not to disclose the other Party’s or Customer’s Confidential Information to any third party, unless required to do so by law. At any time during the term of this Agreement and upon the termination or expiration of this Agreement, either Party may demand in writing that the other Party promptly return or destroy all Confidential Information of the disclosing Party in the recipient’s possession, and, further, Ideasicle X may demand in writing that Freelancer promptly return to a Customer or destroy all Confidential Information of such Customer in Freelancer’s possession. Upon receipt of a notice to return or destroy Confidential Information, the recipient shall certify in writing at the time of return or destruction that all Confidential Information in recipient’s possession has been returned or destroyed. This Section shall not apply to Confidential Information (a) that was in a Party’s possession before receipt from the other Party; (b) is or becomes a matter of public knowledge through no fault of the receiving Party; (c) is rightfully received by a Party from a third party not owing a duty of confidentiality to the disclosing party; or (d) was independently derived by a Party prior to the date of this Agreement.
11. FORCE MAJEURE. Except for the payment of any fees due and payable under this Agreement, neither Party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
12. NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person, or three (3) business days after being deposited in the United States mail, postage prepaid (addressed as below), or one (1) business day after being sent via email (as addressed below):
IF for Ideasicle X:
Ideasicle X, LLC
Will Burns
7 Juniper Road
South Hamilton, MA, 01982 willb@ideasicle.com
Such address may be changed from time to time by providing written notice to the other in the manner set forth above.
13. ENTIRE AGREEMENT. This Agreement, together with Ideasicle X’s Terms of Use, which is incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter described herein and supersedes any prior communication, understanding, or agreement, whether written or oral, concerning the subject matter hereof. Any change to any provision of this Agreement may only be made by mutual agreement, in writing, signed by all Parties in like manner as this Agreement is signed.
14. NO ASSIGNMENT. Neither Party shall assign this Agreement without the express written consent of the other Party.
15. NO IMPLIED WAIVER. A waiver by either Party of any breach of any provision expressed in this Agreement shall not be taken or held to be a waiver of any succeeding breach of any such provision or as a waiver of a provision itself.
16. THIRD-PARTY BENEFICIARIES. It is the intent of the Parties that Customers who have engaged and paid the Freelancer for services are third-party beneficiaries of this Agreement with respect to Section 4 (Intellectual Property), Section 6 (Representations and Warranties), Section 9 (Confidentiality), and any other Section of this Agreement that by its terms is intended to benefit such Customers.
17. PARTIAL INVALIDITY OF CONTRACT. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement shall remain in full force and effect, and such arbitrator or court shall be empowered to modify such provision to the minimum extent necessary to render it enforceable while effectuating insofar as possible the basic purpose and intent of such provision.
18. INTERPRETATION. In the event that any dispute arises among or between the Parties regarding the interpretation of this Agreement, or any provision thereof, the Parties acknowledge and agree that all of the Parties shall be deemed collectively to be the drafting party and any rule of construction pursuant to which ambiguities are to be construed against the drafting party shall not be applicable. Section and subsection headings are for convenience purposes and shall not be used to interpret or construe the provisions hereof.
19. APPLICABLE LAW & JURISDICTION. This Agreement shall be governed by, and interpreted in accordance with, the laws of Massachusetts without reference to conflict of laws provisions. The federal or state courts of Massachusetts shall have exclusive jurisdiction and venue over any claims arising out of this Agreement, and the Parties hereby consent to the personal jurisdiction and venue of such courts and waive any objections thereto.
20. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument. A faxed or scanned/emailed signature, or a signature provided by an electronic signing service, shall be deemed to be an original signature.
21. ADVICE OF COUNSEL & AUTHORITY. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT, AND HAS AUTHORITY TO ENTER INTO THIS AGREEMENT AS EXECUTED.
Executed as of the Effective Date set forth above.