E XHIBIT 10.4
INDEPENDENT CONTRACTOR SERVICES
AGREEMENT
T HIS A GREEMENT is made as of November 16, 2005, (“
Effective Date ”) by and between R
ACKABLE S YSTEMS , I NC and
its successors or assignees (“ Company ”) and
the undersigned J ACK R ANDALL (“ Contractor ”).
1. E NGAGEMENT OF S ERVICES . Company may from time to time submit a
Statement of Work ( “SOW ”) to Contractor
substantially in the form of Exhibit A to this Agreement.
Each SOW shall, when executed by Company and Contractor, form a
part of this Agreement and be subject to the terms and conditions
set forth herein. Subject to the terms of this Agreement,
Contractor will use commercially reasonable efforts to provide the
services set forth in each SOW accepted by Contractor (the “
Project(s) ”) by the completion dates set forth
therein. The manner and means that Contractor chooses to complete
the Projects are in Contractor’s sole discretion and control.
Contractor shall perform the services necessary to complete the
Projects in a timely and professional manner consistent with
industry standards and at a location, place and time that
Contractor deems appropriate. In completing the Projects,
Contractor agrees to provide its own equipment, tools, and other
materials at its own expense; however, Company will make its
facilities and equipment available to Contractor when
necessary.
2. C OMPENSATION .
2.1 Fees. Company will pay Contractor the fee specified in
each SOW as Contractor’s sole compensation for the Project,
provided such Project meets the terms of the SOW and this Agreement
and is of a quality consistent with industry standards. Contractor
shall be responsible for all expenses incurred in performing
services under this Agreement, except as set forth in the SOW. Upon
termination of this Agreement for any reason prior to completion of
an SOW, Company will pay Contractor fees and expenses on the basis
stated in the SOW for work which is then in progress, within
fifteen (15) days of the later of Contractor’s invoice
and the effective date of such termination.
2.2 Invoicing
. Unless otherwise provided in the
applicable SOW, (a) payment to Contractor of undisputed fees
will be due fifteen (15) days following Company’s
receipt of an invoice which contains accurate records of the work
performed sufficient to document the invoiced fees; and
(b) Contractor will submit invoices to Company upon completion
of the milestones specified in the applicable SOW or, if no such
milestones are specified, on a monthly basis for services performed
in the previous month.
3. I NDEPENDENT C ONTRACTOR R ELATIONSHIP . Contractor’s relationship with Company
will be that of an independent contractor, and nothing in this
Agreement should be construed to create a partnership, joint
venture, or employer-employee relationship. Contractor (a) is
not the agent of Company; (b) is not authorized to make any
representation, contract, or commitment on behalf of Company;
(c) will not be entitled to any of the benefits that Company
makes available to its employees, such as group insurance,
profit-sharing or retirement benefits (and waives the right to
receive any such benefits); and (d) will be solely responsible
for all tax returns and payments required to be filed with or made
to any federal, state, or local tax authority with respect to
Contractor’s performance of services and receipt of fees
under this Agreement. If applicable, Company will report amounts
paid to Contractor by filing Form 1099-MISC with the Internal
Revenue Service, as required by law. Contractor agrees to accept
exclusive liability for complying with all applicable state and
federal laws, including laws governing self-employed individuals,
if applicable, such as laws related to payment of taxes, social
security, disability, and other contributions based on fees paid to
Contractor under this Agreement. Company will not withhold or make
payments for social security, unemployment insurance or disability
insurance contributions, or obtain workers’ compensation
insurance on Contractor’s behalf. Contractor hereby agrees to
indemnify and defend Company against any and all such taxes or
contributions, including penalties and interest. Contractor agrees
to provide proof of payment of appropriate taxes on any fees paid
to Contractor under this Agreement upon reasonable request of
Company.
4. I NTELLECTUAL P ROPERTY R IGHTS .
4.1 Confidential
Information . Contractor
agrees that during the term of this Agreement and thereafter,
except as expressly authorized in writing by the Chief Executive
Officer (the “ CEO ”) of Company, it
(a) will not use or permit the use of Confidential Information
(defined below) in any manner or for any purpose not expressly set
forth in this Agreement; (b) will not disclose, lecture upon,
publish, or permit others to disclose, lecture upon, or publish any
such Confidential Information to any third party without first
obtaining the CEO’s express written consent on a case-by-case
basis; (c) will limit access to Confidential Information to
Contractor personnel who need to know such information in
connection with their work for Company; and (d) will not
remove any tangible embodiment of any Confidential Information from
Company’s premises without Company’s prior written
consent. “ Confidential Information ” includes,
but is not limited to, all information related to Company’s
business and its actual or anticipated research and development,
including without limitation (i) trade secrets, inventions,
ideas, processes, computer source and object code, formulae, data,
programs, other works of authorship, know-
how, improvements, discoveries, developments,
designs, and techniques; (ii) information regarding products
or plans for research and development, marketing and business
plans, budgets, financial statements, contracts, prices, suppliers,
and customers; (iii) information regarding the skills and
compensation of Company’s employees, contractors, and any
other service providers of Company; (iv) the existence of any
business discussions, negotiations, or agreements between Company
and any third party; and (v) all such information related to
any third party that is disclosed to Company or to Contractor
during the course of Company’s business ( “Third
Party Information” ). Notwithstanding the foregoing, it
is understood that Contractor is free to use information which is
generally known in the trade or industry, information which is not
gained as a result of a breach of this Agreement, and
Contractor’s own skill, knowledge, know-how, and
experience.
4.2 Competitive or Conflicting Engagements .
Contractor agrees, during the term of this Agreement, not to enter
into a contract or accept an obligation that is inconsistent or
incompatible with Contractor’s obligations under this
Agreement. Contractor warrants that there is no such contract or
obligation in effect as of the Effective Date. Contractor further
agrees not to disclose to Company, bring onto Company’s
premises, or induce Company to use any confidential information
that belongs to anyone other than Company or Contractor. In
addition, Contractor agrees that, during the term of this
Agreement, it will not perform, or agree to perform, any services
for any third party that engages, or plans to engage, in any
business or activity competitive with that of Company.
4.3 Inventions and Intellectual
Property Rights. As used
in this Agreement, the term “Invention” means
any ideas, concepts, information, materials, processes, data,
programs, know-how, improvements, discoveries, developments,
designs, artwork, formulae, other copyrightable works, and
techniques and all Intellectual Property Rights therein. The term
“Intellectual Property Rights” means all trade
secrets, copyrights, trademarks, mask work rights, patents and
other intellectual property rights recognized by the laws of any
country.
4.4 Background
Technology . As used in
this Agreement, the term “Background Technology”
means all Inventions developed by Contractor other than in the
course of providing services to Company hereunder and all
Inventions acquired or licensed by Contractor that Contractor uses
in performing services under this Agreement or incorporates into
Work Product (defined below). Contractor will disclose any
Background Technology in the SOW in which Contractor proposes to
use or incorporate such Background Technology. If no Background
Technology is disclosed in an SOW, Contractor warrants that it will
not use Background Technology or incorporate it into Work Product
provided pursuant thereto. Notwithstanding the foregoing,
Contractor agrees that it will not incorporate into Work Product or
otherwise deliver to Company any software code licensed under the
GNU GPL or LGPL or any other license that by its terms requires, or
conditions the use or distribution of such code on, the disclosure,
licensing, or distribution of the Work Product or any source code
owned or licensed by Company.
4.5 License to Background
Technology . Subject to
Company’s performance of its obligations hereunder,
Contractor hereby grants to Company a non-exclusive, perpetual,
fully-paid and royalty-free, irrevocable and world-wide right, with
rights to sublicense through multiple levels of sublicensees, to
reproduce, make derivative works of, distribute, publicly perform,
and publicly display in any form or medium, whether now known or
later developed, make, have made, use, sell, import, offer for
sale, and exercise any and all present or future rights in the
Background Technology incorporated or used in Work Product for the
purpose of developing and marketing Company products.
4.6 Disclosure of Work Product . As used in
this Agreement, the term “ Work Product ” means
any Invention that is solely or jointly conceived, made, reduced to
practice, or learned by Contractor in the course of any services
performed for Company or with the use of materials of Company
during the term of this Agreement. Contractor agrees to disclose
promptly in writing to Company, or any person designated by
Company, all Work Product.
4.7 Ownership of Work
Product. Contractor
agrees that any and all Work Product shall be the sole and
exclusive property of Company.
4.8 Assignment of Work
Product . If Contractor
has any rights to the Work Product that are not owned by Company
upon creation or embodiment, Contractor irrevocably assigns to
Company all right, title and interest worldwide in and to such Work
Product. Except as set forth below, Contractor retains no rights to
use the Work Product and agrees not to challenge the validity of
Company’s ownership in the Work Product.
4.9 Waiver or Assignment of Other Rights . If
Contractor has any rights to the Work Product that cannot be
assigned to Company, Contractor unconditionally and irrevocably
waives the enforcement of such rights, and all claims and causes of
action of any kind against Company with respect to such rights, and
agrees, at Company’s request and expense, to consent to and
join in any action to enforce such rights. If Contractor has any
right to the Work Product that cannot be assigned to Company or
waived by Contractor, Contractor unconditionally and irrevocably
grants to Company during the term of such rights, an exclusive,
irrevocable, perpetual, worldwide, fully paid and royalty-free
license, with rights to sublicense through multiple levels of
sublicensees, to reproduce, make derivative works of,
distr
