Last Updated: July 29, 2016
This Independent Contractor Agreement (the “Agreement”) is entered into effective as of the date of the first transaction between the parties governed by this Agreement. The parties mutually agree as follows:
1. Services. Contractor will provide services (“Services”) to Sharecare, Inc. or its affiliates (“Company”) as described in each statement of work, order, or other transaction documents, entered into by both parties from time to time (each a “Statement of Work” or “SOW”).
2. Acceptance. All deliverables under each SOW must be performed in accordance with the SOW and the reasonable satisfaction of Company. Final acceptance by Company of the deliverables under each SOW (including deliverables which may have been previously approved) shall be made provided only by a written notice of acceptance signed by Company. Contractor shall submit deliverables to Company for review and acceptance according to the schedule set forth in each SOW. After receipt of any deliverable from Contractor, Company shall, in its reasonable judgment, determine whether the deliverable is acceptable or will advise Contractor in writing that it requires revisions, together with reasonable direction as to the scope of any required revisions.
3. Term of Agreement. The term of this Agreement (the “Term”) shall commence on the effective date set forth above, and continue until terminated as provided in this Agreement.
4. Termination. Each party shall have the right to terminate the Agreement or any SOWs as follows:
(a) Either party shall have the right to terminate the Agreement or any SOWs upon a material breach by the other party not cured within twenty (20) days, such cure period to commence upon the breaching party’s receipt of written notice from the non-breaching party setting forth an alleged event of material breach.
(b) Unless otherwise specified in each SOW, Company shall have the right to terminate any SOW for convenience at any time by providing written notice to Contractor. Company shall be responsible for amounts owed through the date of termination.
(c) Either party shall have the right to terminate this Agreement if there are no SOWs outstanding by providing written notice to the other party.
5. Fees, Expenses and Payment.
(a) Company shall pay Contractor the fees in the amount and manner set forth in each Statement of Work (“Fees”).
(b) Company shall not be liable to Contractor for any expenses paid or incurred by Contractor unless otherwise agreed to and approved in advance in writing by Company (the “Expenses”). Any such Expenses shall be in connection with the project and this Agreement and must fully conform to Company’s then-current policies, as communicated from time to time.
(c) Unless otherwise specified in each SOW, payments will be made net 30 days in arrears upon completion of services and will be paid upon receipt of an invoice from Contractor. The invoice will include an updated status report on Contractor’s consulting efforts and supporting documentation for any Expenses.
(d) As a condition to Company’s obligation to make payments hereunder to Contractor, Contractor must have a completed and accurate W-9 (for US-based Contractors) on file with Company or a completed and accurate W-8 (for non-US-based Contractors) on file with Company.
(e) Payroll taxes, including federal, state and local taxes, shall not be withheld or paid by Company on behalf of Contractor. Contractor shall not be treated as an employee for federal or state tax purposes with respect to the services performed under this Agreement. Contractor shall be responsible to pay all taxes as mandated by law.
6. Performance. Contractor shall perform Contractor’s obligations hereunder in a workmanlike and professional manner, and shall not employ or utilize any third parties for the performance of such. Any materials provided to Company by Contractor hereunder shall be Contractor’s original work, unencumbered by any third parties, unless expressly authorized in writing by Company on a case-by-case basis. Contractor agrees to cooperate with Company on any matters related to the performance of services hereunder.
7. Indemnification. Contractor agrees to indemnify and hold harmless Company and its directors, officers, agents and employees from and against any claims, liabilities, losses, damages, proceedings or actions (whether pending or threatened) including reasonable attorneys’ fees, related to or arising out of the Services. Company shall give reasonable notice to the other of any such claim, loss, action, damage, expense or other liability. This Section shall survive the termination of this Agreement.
8. Notices. All notices required by either party under this Agreement shall be in writing, and shall be deemed to have been given on the date such noticed is presented personally, or transmitted by facsimile (receipt confirmed), two (2) business days after delivery by a nationally recognized courier service, or three (3) days after mailed registered or certified, return receipt requested, to the other party at the addresses set forth in the first paragraph of this Agreement, Attn: Legal, or to such other address as a party may designate by written notice to the other party provided in accordance with this Section.
9. Ownership of Materials.
(a) Except as otherwise expressly set forth in an SOW, Contractor covenants and agrees that all of deliverables provided by Contractor to Company under an SOW, and all of the ideas and other intellectual property contained therein, shall be the sole and exclusive property of Company, and Company shall maintain all worldwide right, title and interest therein. Contractor agrees (without further compensation) to execute any applications, agreements and instruments (including any assignment agreements and instruments) and to do all other things reasonably requested by Company, at Company’s expense (both during and after the Term of this Agreement) in order to vest more fully in Company all worldwide ownership rights in such deliverables, including, without limitation, United States and foreign patent or other proprietary rights and copyrights.
(b) Contractor hereby waives any and all claims that Contractor may have in any jurisdiction to “moral rights” or rights of “droit moral” with respect to the deliverables and acknowledges, confirms and agrees that Company, without the necessity of any further consideration or action on the part of Company or Contractor, shall have the right to make (or have others on Company’s behalf make) enhancements and derivative works of the same and that Company or its designee shall own all worldwide right, title and interest in and to all such enhancements and derivative works.
(c) Upon completion or termination of this Agreement or upon request at any time, Contractor agrees to return to Company all lists, books, records, company property, and Confidential Information obtained in connection with Company’s business, and any copies made thereof.
10. Arbitration. All disputes arising under this Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association. Arbitration shall be by a single arbitrator experienced in the matters at issue and selected by the parties in accordance with the Rules. The arbitration shall only be held in Atlanta, Georgia, United States. The decision of the arbitrator shall be final and binding and may be enforced in any court having jurisdiction over the subject matter or either of the parties. The arbitrator shall determine to what extent each of the parties shall bear the costs and expenses incurred in connection with any such arbitration proceeding (including reasonable attorneys’ fees and expenses) on the basis of the arbitrator’s assessment of the relative merits of the parties’ positions.
11. Relationship of the Parties.
(a) It is mutually understood and agreed that in providing Services pursuant to this Agreement, Contractor is acting as an independent contractor and is, at all times, performing Services as an independent contractor, and not as an agent or employee of Company. As an independent contractor, Contractor is responsible for Contractor’s own actions. Company shall neither have, nor exercise any control or direction, nor shall it have the right to exercise any control or direction over the methods or manner in which Contractor performs the Services required under this Agreement.
(b) Contractor will not be considered an employee or agent of Company, subject to any procedures applicable to employees or Company, nor shall Contractor be entitled to employee benefits, including salary, vacation pay, sick leave, retirement benefits, social security, workers’ compensation, disability or unemployment insurance benefits that may be provided to Company employees. Company shall not be responsible for withholding income or other taxes from the payments made to Contractor. Contractor shall be solely responsible for filing all returns and paying any income, social security, or other tax levied upon or determined with respect to the payments made to Contractor pursuant to this Agreement.
(c) It is mutually understood and agreed that the relationship between the parties shall be that of independent entities contracting with each other at arm’s length toward an independent contractor relationship. This Agreement does not, and shall not be construed to create the relationship of agent, employee, partnership, joint venture or association between the parties.
(d) This Section shall survive the termination or expiration of this Agreement.
12. Assignment. Upon advance written notice Company may assign this Agreement to a parent, subsidiary or successor to the business related to this Agreement. This Agreement may not be otherwise assigned or transferred.
13. Survival. All provisions which contemplate performance or observance subsequent to any termination or expiration of this Agreement or which must survive in order to give effect to its meaning, shall survive the expiration or termination of this Agreement.
14. Publicity. Each of the parties hereto agrees that it will not, without the written consent of the other party in each instance, (i) use in advertising or for other publicity purposes (including, without limitation, on the Internet) the other party’s name, domain name, any trademark, trade name, symbol or any abbreviation or contraction thereof owned by or referring to that party; or (ii) represent, directly or indirectly, that any product or service offered by the party has been approved or endorsed by the other party.
15. Non-Solicitation. Contractor agrees that during the term of this Agreement and for twelve months after the termination or expiration of this Agreement, Contractor shall not:
(a) Solicit for employment and then employ any employee of Company or any of its affiliates or subsidiaries;
(b) Induce, attempt to induce or knowingly encourage any Customer of Company or any of its affiliates or subsidiaries to divert any business or income from Company or its affiliates or subsidiaries or to stop or alter the manner in which they are then doing business with Company or any of its affiliates or subsidiaries. “Customer” shall mean any individual or entity that was or is a customer or client or whose business was actively solicited by Company or its affiliates or subsidiaries at any time, regardless of whether such Customer was generated, in whole or in part, by Contractor’s efforts.
16. Confidential Information. During the course of this relationship, it may be necessary or convenient for a party to divulge Confidential Information (as herein defined) to the other party. The following shall apply:
(a) The term “Confidential Information” means all non-public information that: (i) either party designates as being confidential information in connection with the disclosure of such information; or (ii) are of a sensitive or proprietary nature, including without limitation negotiations in progress, terms of agreements, financial data, customer lists, advertising, marketing and promotional plans, and business partner lists, including but not limited to trade secrets.
(b) Confidential Information shall not include any information that (i) is at the time of disclosure or subsequently becomes publicly available without a party’s breach of any obligations owed to the other party; (ii) becomes known to a party prior to disclosure of such information to a party; (iii) becomes or became known to a party without a breach of an obligation of confidentiality owed to the other party; or (iv) is independently developed by a party.
(c) The receiving party shall retain in strict confidence all of the disclosing party’s Confidential Information during the term of this agreement and for three years thereafter. Notwithstanding the foregoing, Contractor shall maintain the confidentiality of any trade secrets for so long as such Confidential Information is deemed a trade secret under applicable law.
(d) Notwithstanding the foregoing restrictions, the receiving party may use and disclose any Confidential Information to the extent required by an order of any court or other governmental authority, but in each case only after the disclosing party has been so notified and has had the opportunity, if possible, to seek and obtain reasonable protection for such information in connection with such disclosure.
(e) All Confidential Information shall remain the exclusive property of the disclosing party and no license or similar rights of any kind shall be or be deemed to have been created or implied by this Agreement, except as otherwise expressly set forth herein.
(f) The provisions of this Section shall survive and be enforceable beyond the termination or completion of this Agreement for the period set forth in this Section.
17. Governing Law/Jurisdiction and Venue. This Agreement shall be exclusively governed by and construed under the laws of the State of Georgia, United States without regard to its conflict of laws provisions and the doctrine of forum non-conveniens. For any and all disputes between the parties involving, directly or indirectly, any matter arising under or in any way connected with this agreement including the breach thereof shall be brought in the exclusive jurisdiction and venue of Atlanta, Fulton County, Georgia, United States. Contractor submits to the exclusive jurisdiction of the courts in Fulton County, Georgia, United States.
18. Approval Signatures. Signature by authorized representatives of the respective parties listed below constitutes acceptance of and notice to proceed with the performance and provision of the Services. No additional work relating to any other project or engagement, or any other part or phase of the project than that described in this Agreement, shall be authorized without the express written agreement of both parties hereto.
19. Non Waiver. The failure of either party to this agreement to exercise any of its rights under this agreement at any time does not constitute a breach of this agreement and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach.
20. Compliance With Laws. Contractor represents that he has complied and will continue to comply with all relevant federal, state and local laws and regulations.
21. Severability. If any part of this agreement is held to be unenforceable, the rest of this agreement shall nevertheless remain in full force and effect.
21. Electronic Agreement. The parties agree to contract electronically. Any requirement of a writing or written agreement can be satisfied by electronic means.
22. Equal Opportunity and Compliance with Employment Laws. If applicable to Contractor’s Services hereunder, Contractor warrants that in providing the goods and/or Services specified herein, Contractor will comply with the following laws, executive order, and the regulations promulgated thereunder, as the same may be amended, when applicable: (A) the Vietnam Era Veterans Readjustment Assistance Act of 1974, (B) Executive Order 11246, and (C) the Rehabilitation Act of 1973. Any clause required to be set forth in a document of this type by such laws, administrative regulations or executive orders shall be deemed to be incorporated herein by this reference. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, disability, or protected veteran status. If applicable to Contractor’s Services hereunder, Contractor and any permitted subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. If applicable, Contractor and any permitted subcontractor shall also abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
23. Entire Agreement. These terms and conditions herein, including any Exhibits attached hereto, constitute the entire agreement between the parties with respect to the subject matter hereof; all prior agreements, representations, statements, negotiations and undertakings, whether written or oral, are superseded hereby. This Agreement may be supplemented, amended or revised only by a writing that is signed by each of the parties.
NOTICE OF IMMUNITY UNDER THE DEFEND TRADE SECRETS ACT (“DTSA”)
For employees, including consultants and contractors, as defined in the DTSA:
You acknowledge receipt of written notice that the Defend Trade Secrets Act, 18 U.S.C. § 1833(b), provides an immunity for the disclosure of a trade secret to report a suspected violation of law and/or in an anti-retaliation lawsuit, as follows:
1. IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
2. USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.