Exhibit 10.23
INDEPENDENT
CONTRACTOR AGREEMENT
1. Parties . Barry Kohn
(“Contractor”) provides THIS AGREEMENT for the benefit
of Vertis, Inc. dba Vertis Communications its
subsidiaries, affiliates, successors and assigns (collectively,
“Company”) and serves as a legally binding
acknowledgment and assignment of the ownership of all “Work
Product” (as defined below) and agreement on other terms
herein.
2. Services . In consideration of
the Company’s engagement of Contractor as an independent
contractor, and for other good and valuable consideration as set
forth on Exhibit A the
receipt and sufficiency of which Contractor hereby acknowledges,
Contractor hereby agrees to the following. For purposes of
this Agreement, the term “Work Product” shall mean all
tangible items created or developed by Contractor during or as the
result of Contractor’s engagement by the Company and within
the scope of Contractor’s engagement, as well as all
non-copyrightable ideas and inventions conceived or created by
Contractor during the course of such activities, whether or not
reduced to tangible form, and all Intellectual Property Rights (as
defined below) in and to any of the foregoing. The term
“Work Product” shall include all such items and
materials even though created or developed by Contractor after
working hours, away from the Company’s premises or on an
unsupervised basis, and whether created by Contractor or with
others as long as such items and materials are within the scope of
Contractor’s engagement.
3. Ownership Rights . Contractor
acknowledges and agrees that all rights in and to the Work Product,
including all the tangible copies thereof, shall belong exclusively
to the Company. By way of example and not limitation, the
Company will be the exclusive owner of all intellectual property
rights which may be applicable to the Work Product, including
without limitation all copyrights, patents, trade secrets,
trademarks, servicemarks, trade dress and other similar rights
(collectively, “Intellectual Property Rights”).
In this regard, all copyrightable Work Product is to be considered
a work made for hire on behalf of the Company whose ownership will
vest exclusively with the Company on its creation. Contractor
hereby assigns all patentable inventions to the Company. To
the extent any Work Product may not, by operation of law or this
Agreement, be considered a work made for hire, Contractor upon the
creation of all items of such Work Product automatically assigns,
without further consideration, the exclusive ownership thereof to
the Company. Contractor also irrevocably relinquishes to or
licenses to Company, whichever is most expansive but enforceable at
law, for the benefit of the Company and its assigns any moral
rights in the Work Product which may be recognized by applicable
law.
4. Further Acts . Upon the request
of the Company, during or after Contractor’s engagement as an
independent contractor, Contractor agrees to perform such further
acts as may be necessary or desirable to transfer, perfect, and
defend the Company’s rights, including without limitation by
(1) executing, acknowledging, and delivering any requested
affidavits and documents of assignment or conveyance,
(2) obtaining and/or aiding in the enforcement of any
Intellectual Property Rights with respect to the Work Product in
any country, and (3) providing testimony in connection with
any proceeding affecting the rights of the Company in any Work
Product. This document shall function as a limited power of
attorney in favor of Company to accomplish the acts set forth in
this paragraph.
5. Confidential Information . During
the course of Contractor’s engagement and thereafter,
Contractor agrees not to use or disclose any trade secrets of the
Company at any time except as necessary to perform
Contractor’s duties for the Company. A trade secret generally
consists of valuable, secret information or ideas that the Company
collects or uses and which give it a business advantage, including
confidential information supplied to the Company by its customers,
clients, vendors, or agents. By way of example and not limitation,
the Company’s trade secrets are such technical information as
manufacturing or operating processes, equipment design, product
specifications, computer software in source, object, script or
other code form, and other proprietary technology, as well as such
business information as selling and pricing information and
procedures, customer lists, business and marketing plans, and
internal financial statements. These restrictions do not apply to
any information generally available to the public or any
information properly obtained from a completely independent source.
Because the Company would not have an adequate remedy at law in the
event of any breach or threatened breach of this Agreement,
Contractor hereby consents to the granting of equitable relief
against Contractor restraining such breach without the requirement
that the Company post any bond or other security therefor.
Nothing in this Agreement shall be
1
construed as conveying to Contractor any right,
title or interests or copyright in or to any Confidential
Information of Company; or to convey any license as to use, sell,
exploit, copy or further develop any such Confidential
Information.
6. Warranty . Contractor warrants
that its services to create the Work Product and any other services
for the Company do not and will not in any way conflict with any
remaining obligations Contractor may have to any prior employer or
other party. Contractor also agrees to perform its services as
described in Exhibit A for the Company in a manner that
avoids even the appearance of infringement of any third
party’s Intellectual Property Rights and in a workmanlike
manner. Contractor hereby disclaims any and all express and
implied warranties other than those set forth in this paragraph,
including without limitation any warranty of fitness for a
particular purpose or merchantability. Excepting those matters set
forth in the indemnification paragraph below, both parties
liability to each other are limited to the amount paid to
contractor in total under this Agreement and both parties expressly
disclaim any consequential, punitive or other special
damages.
7. Return of Work Product . Upon the
request of the Company and, in any event, upon the termination of
Contractor’s engagement as an independent contractor,
Contractor will leave with the Company all copies of the Work
Product and all other materials relating to the Company’s
business.
8. Indemnification .
a. From
Contractor . Contractor agrees to indemnify, defend
and hold Company, its affiliates, subsidiaries, employees,
directors, officers, shareholders, and clients harmless from any
and all claims and threatened claims by any third party, including
employees of either party, arising out of, under or in connection
with: (i) the death or bodily injury of any third party, the damage
loss or destruction of any personal or real property; or (ii) an
act or omission of Contractor arising out of or relating to:
(a) federal, state or other laws or regulations for the
protection of persons who are members of a protected class or
category or persons or (b) sexual discrimination or
harassment.
b. To
Contractor : Company agrees to indemnify, defend and
hold Contractor harmless from any and all claims and threatened
claims by any third party, including without limitation officers,
investors, debt holders, directors and employees of Company,
arising out of, or under or in connection with his services to
Company, excepting only those matters set forth above
where Contractor indemnifies Company.
Independent Contractor
Status . Contractor acknowledges and agrees
that nothing herein shall constitute an offer to hire or an
employment contract, that the Company’s engagement of
Contractor as an independent contractor shall not constitute a
partnership, agency relationship or joint venture and that
Contractor is responsible for its own worker’s compensation,
social security and other obligations imposed by law on independent
contractors.
9. Compliance with Rules and Regulations
. To the extent Contractor has access to or use of the
facilities or computer resources
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