Consultants Kit -- Deluxe Edition

The AllBusiness.com Practical Guide to Independent Contractor & Consultant Agreements

Overview

Businesses can benefit from hiring independent contractors or consultants, rather than employees. However, you should carefully document the agreement with the independent contractor or consultant to avoid problems with the Internal Revenue Service. And if you contract with the independent contractor or consultant to develop a product, software, a book or manual, or other intellectual property, you need to document what rights you expect to retain in the end product.

In this Guide, we provide valuable forms and agreements to use when working with independent contractors and consultants. We also address the key business and tax issues that you are likely to encounter when dealing with independent contractors and consultants.

The Advantages and Disadvantages of Working with Independent Contractors and Consultants

There are certain benefits to contracting with independent contractors and consultants. Consider the following advantages:

• You get special expertise.
• You use them as needed.
• You save on tax contributions.
• You save on benefits.
• You have flexibility in the relationship.

However, there is a downside. Consider the following disadvantages:

• You run the risk of tax problems.
• You may not have the same continuity in the relationship that you would have with an employee.
• You may have to pay high fees to the contractor.
• You have limited control over the contractor.

Protecting Your Interests

Experience and Qualifications

Before you hire an independent contractor or consultant, you may need background information to determine if he or she is the right person for the job. The form in Appendix A offers some questions that you may want to ask. Then, if you want to verify the information you've been given, have the consultant or independent contractor sign a background check form such as the samples in Appendix B and C.

Independent Contractor Agreements

Your business must have a good form of agreement when hiring independent contractors. A good agreement covers the following:

• Services to be performed: This part of the contract should carefully spell out the services to be performed. Make sure that you have spelled out all of the things you expect the independent contractor to do for his compensation.
• Timing: The contract should spell out when the services are to be performed. Also consider a late-penalty fee if the services are not performed on time, or a bonus if finished early.
• Payment: The payment clause of the contract should address the amount to be paid, the manner payment is to be paid (on an hourly basis? on a project basis?), and when payments are due. From the company's perspective, it wants to ensure that it's reasonably satisfied with the quality and scope of services rendered by the contractor before being obligated to pay the entire amount.
• Reporting: The contract can also address how often the contractor needs to report progress made, and to whom to report. Be careful here, because excessive control over the activities of the contractor may result in him or her being deemed an "employee" for tax purposes.
• Confidentiality obligations: The contract needs to make clear that the contractor must keep proprietary information about the company confidential and not use such information other than for the benefit of the company.
• Work for hire: The contract should typically provide that the work product developed by the contractor for the company will be deemed work for hire under the copyright laws and owned solely by the company (and not the contractor).
• Warranties: Spell out any warranties from the contractor, such as the contractor warranty that the services be performed in a high-quality, professional, and timely manner.
• Subcontractors: If the contractor expects to use any subcontractors, consider providing that you have approval over these subcontractors and that they execute an appropriate agreement with you.

Appendix D provides a sample Independent Contractor Agreement. Appendix E provides a similar agreement for consulting services, while Appendix F provides an agreement for professional services.

Confidentiality and Invention Assignment Agreements

You will want to consider having any consultant sign a confidentiality agreement. Consultants, especially if the business is technology-oriented, often have access to a considerable amount of the company's confidential information. You will also likely expect the consultants to come up with ideas, work product, and inventions useful to your business, and you will want to ensure that your business-not the consultant-maintains an ownership interest in any ideas, work product, or inventions developed by the consultant.

In areas where you are particularly sensitive about confidentiality and the company's ownership of the product developed, you should require consultants to sign a Confidentiality and Invention Assignment Agreement. This agreement deals with the confidentiality issue, but can also provide that the ideas, work product, and inventions the consultant creates in connection with services performed for your business belong to the company (not the consultant). This agreement is more detailed and protective than the Independent Contractor Agreement discussed in the preceding section. It is best used in conjunction with a Consulting Agreement, as in the example contained in Appendix E.

Appendix G shows a separate sample Confidentiality and Invention Assignment Agreement for Consultants. This form is extensive and pro-company-oriented.

Tax Considerations

Tax laws allow you to treat employees and contractors differently. In fact, decreased tax liability is one of the greatest benefits your company can realize from using an independent contractor or consultant. You must be especially vigilant, however, to correctly fill out your forms and agreements to avoid having the IRS disagree with your assessment of a worker as an independent contractor.

Distinguishing between employees and independent contractors

The following table summarizes some key differences between independent contractors and employees. These issues directly affect your obligations and determine what forms you must fill out with respect to the worker.

Determining whether you can properly characterize a worker as an employee or an independent contractor is absolutely necessary before you enter into an independent contractor agreement. If you have the right to direct or control the specific tasks and business aspects of the worker's activities, the IRS will probably consider the worker an employee, no matter what title or label you may use.

For further information on determining who can be considered an independent contractor, refer to IRS Publication 15-A, the Employer's Supplemental Tax Guide, in Appendix H.

Your obligations as an employer

The IRS requires employers to do the following for each employee (but not for each contractor):

• Withhold income taxes and the employee's share of Social Security and Medicare contributions
• Pay the employer's share of the Social Security and Medicare contributions

If the IRS determines...

AGREEMENT FOR PROFESSIONAL SERVICES

This Agreement for Professional Services (the "Agreement"), effective ______________ is by and between __________, a corporation, with its principal office at ________________________ (hereinafter "Client"), and ________________, a _____________ corporation, with its principal office at ____________________ (hereinafter the "Company").

WHEREAS, Client finds that the Company is willing to perform certain work hereinafter described in accordance with the provisions of this Agreement; and

WHEREAS, Client finds that the Company is qualified to perform the work, all relevant factors considered, and that such performance will be in furtherance of Client's business.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein and intending to be legally bound, the parties hereto agree as follows:

1. SERVICES.

1.1 Services to Client. The Company shall provide the following ("Services") to Client: _______________________________________________________

_______________________________________________________

_________________________________________________

2. PAYMENT AND INVOICING TERMS.

2.1 Payment for Services. The Company will be paid as follows:

_________________________________________________

_________________________________________________

_________________________________________________

2.2 Reimbursable Costs. Client shall reimburse the Company all costs incurred in connection with the Services rendered. Reimbursable costs include, but are not limited to, travel costs, subcontractors, materials, computer costs, telephone, copies, delivery, etc. that are attributable to a project or Service (the "Reimbursable Costs"). Travel costs are defined as air travel, lodging, meals and incidentals, ground transportation, tools, and all costs associated with travel. All extraordinary travel expenses must receive Client's approval. The Company shall provide to Client substantiation of Reimbursable Costs incurred.

2.3 Invoicing.

(a) Invoices will submitted monthly by the Company for payment by Client. Payment is due upon receipt and is past due seven (7) business days from receipt of invoice. If Client has any valid reason for disputing any portion of an invoice, Client will so notify the Company within seven (7) calendar days of receipt of invoice by Client, and if no such notification is given, the invoice will be deemed valid. The portion of the Company's invoice that is not in dispute shall be paid in accordance with the procedures set forth herein.

(b) A finance charge of 1.5% per month on the unpaid amount of an invoice, or the maximum amount allowed by law, will be charged on past due accounts. Payments by Client will thereafter be applied first to accrued interest and then to the principal unpaid balance. Any attorney fees, court costs, or other costs incurred in collection of delinquent accounts shall be paid by Client. If payment of invoices is not current, the Company may suspend performing further work.

2.4 Taxes. All amounts payable pursuant to this Agreement are exclusive of taxes. Accordingly, there will be added to any such amount payable by Client the monetary sum equal to any and all current and future applicable taxes, however designated, incurred as a result of or otherwise in connection with this Agreement or the Services, including without limitation state and local privilege, excise, sales, services, withholding, and use taxes and any taxes or other amounts in lieu thereof paid or payable by Client (other than taxes based on the Company's net income). If Client does not pay such taxes, the Company may make such payments and Client will reimburse the Company for those payments. Client will hold the Company harmless for any payments made by Client pursuant to this Section 2.4.

3. CHANGES.

Client may, with the approval of the Company, issue written directions within the general scope of any Services to be ordered. Such changes (the "Change Order") may be for additional work or the Company may be directed to change the direction of the work covered by the Task Order, but no change will be allowed unless agreed to by the Company in writing.

4. STANDARD OF CARE.

The Company warrants that it services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any services performed or software developed. THIS SECTION SETS FORTH THE ONLY...

BACKGROUND CHECK PERMISSION (COMPREHENSIVE)
FOR PROSPECTIVE CONSULTANT OR INDEPENDENT CONTRACTOR

In connection with my application to render services to _____________________ (the “Company”), I hereby agree as follows:

1. GENERAL CONSENT TO BACKGROUND INVESTIGATION

As a condition of Company’s consideration of my application to render services, I give permission to Company to investigate my personal and employment history. I understand that this background investigation will include, but not be limited to, verification of all information given by me to the Company.

2. CONSENT TO CONTACT PAST EMPLOYERS AND COMPANIES

I specifically give permission to Company to contact all of my prior employers and companies I have provided services to for references. I further give permission to all current or previous employers and/or managers or supervisors to discuss my relevant personal and employment history with Company, consent to the release of such information orally or in writing, and hereby release them from all liability and agree not to sue them for defamation or other claims based upon...

3. CONSENT TO CONTACT GOVERNMENT AGENCIES

I further give permission to the Company to receive a copy of any information obtained in the file of any federal, state, or local court, or governmental agency concerning or relating to me. I further consent to the release of such...

4. COOPERATION WITH INVESTIGATION

I agree to fully cooperate in Company’s background investigation, and to ...

BACKGROUND CHECK PERMISSION (SIMPLE)
FOR PROSPECTIVE CONSULTANT OR INDEPENDENT CONTRACTOR

I hereby authorize all corporations, companies, credit agencies, schools, government agencies, persons, military services, and former employers to release information they may have about me to _____________ or its agents and employees, and release all persons or companies from any liability or responsibility from doing so. Further, I authorized the procurement of a consumer report and credit check, and understand that such a report may contain information about my background, character, and personal reputation. I understand that...

Key Differences Between
Employees and Independent Contractors

Item	Employee	Independent Contractor
Make Employer Contribution to Social Security	Yes	No
Make Employer Contribution to Medicare Taxes	Yes	No
Withhold applicable taxes	Yes	No
File Form 1099-MISC with IRS if you pay the person $600 or more	No	Yes
Carry Workers Compensation Insurance covering...

CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
FOR CONSULTANT

This CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT (the “Agreement”) is made between ____________________ (the “Company”) and the undersigned consultant.

In consideration of my relationship with the Company (which for purposes of this Agreement shall be deemed to include any subsidiaries or Affiliates^* of the Company), the receipt of confidential information while associated with the Company, and other good and valuable consideration, I, the undersigned individual, agree that:

1. Term of Agreement. This Agreement shall continue in full force and effect for the duration of my relationship with the Company and shall continue thereafter until terminated through a written instrument signed by both parties.

2. Confidentiality.

(a) Definitions. “Proprietary Information” is all information and any idea whatever form, tangible or intangible, pertaining in any manner to the business of the Company, or any of its Affiliates, or its employees, clients, consultants, or business associates, which was produced by any employee or consultant of the Company in the course of his or her employment or consulting relationship or otherwise produced or acquired by or on behalf of the Company. All Proprietary Information not generally known outside of the Company’s organization, and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.” By example and without limiting the foregoing definition, Proprietary and Confidential Information shall include, but not be limited to:

(1) formulas, research and development techniques, processes, trade secrets, computer programs, software, electronic codes, mask works, inventions, innovations, patents, patent applications, discoveries, improvements, data, know-how, formats, test results, and research projects;

(2) information about costs, profits, markets, sales, contracts and lists of customers, and distributors;

(3) business, marketing, and strategic plans;

(4) forecasts, unpublished financial information, budgets, projections, and customer identities, characteristics and agreements; and

(5) employee personnel files and compensation information.

Confidential Information is to be broadly defined, and includes all information that has or could have commercial value or other utility in the business in which the Company is engaged or contemplates engaging, and all information of which the unauthorized disclosure could be detrimental to the interests of the Company, whether or not such information is identified as Confidential Information by the Company.

(b) Existence of Confidential Information. The Company owns and has developed and compiled, and will develop and compile, certain trade secrets, proprietary techniques and other Confidential Information which have great value to its business. This Confidential Information includes not only information disclosed by the Company to me, but also information developed or learned by me during the course of my relationship with the Company.

(c) Protection of Confidential Information. I will not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party, other than in my assigned duties and for the benefit of the Company, any of the Company’s Confidential Information, either during or after my relationship with the Company. In the event I desire to publish the results of my work for the Company through literature or speeches, I will submit such literature or speeches to the President of the Company at least 10 days before dissemination of such information for a determination of whether such disclosure may alter trade secret status, may be prejudicial to the interests of the Company, or may constitute an invasion of its privacy. I agree not to publish, disclose or otherwise disseminate such information without prior written approval of the President of the Company. I acknowledge that I am aware that the unauthorized disclosure of Confidential Information of the Company may be highly prejudicial to its interests, an invasion of privacy, and an improper disclosure of trade secrets.

(d) Delivery of Confidential Information. Upon request or when my relationship with the Company terminates, I will immediately deliver to the Company all copies of any and all materials and writings received from, created for, or belonging to the Company including, but not limited to, those which relate to or contain Confidential Information.

(e) L ocation and Reproduction. I shall maintain at my workplace only such Confidential Information as I have a current “need to know.” I shall return to the appropriate person or location or otherwise properly dispose of Confidential Information once that need to know no longer exists. I shall not make copies of or otherwise reproduce Confidential Information unless there is a legitimate business need of the Company for reproduction.

(f) Prior Actions and Knowledge. I represent and warrant that from the time of my first contact with the Company I held in strict confidence all Confidential Information and have not disclosed any Confidential Information, directly or indirectly, to anyone outside the Company, or used, copied, published, or summarized any Confidential information, except to the extent otherwise permitted in this Agreement.

(g) Third-Party Information. I acknowledge that the Company has received and in the future will receive from third parties their confidential information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. I agree that I will at all times hold all such confidential information in the strictest confidence and not to disclose or use it, except as necessary to perform my obligations hereunder and as is consistent with the Company’s agreement with such third parties.

(h) Third Parties. I represent that my relationship with the Company does not and will not breach any agreements with or duties to a former employer or any other third party. I will not disclose to the Company or use on its behalf any confidential information belonging to others and I will not bring onto the premises of the Company any confidential information belonging to any such party unless consented to in writing by such party.

3. Proprietary Rights, Inventions and New Ideas.

(a) Definition. The term “Subject Ideas or Inventions” includes any and all ideas, processes, trademarks, service marks, inventions, designs, technologies, computer hardware or software, original works of authorship, formulas, discoveries, patents, copyrights, copyrightable works products, marketing and business ideas, and all improvements, know-how, data, rights, and claims related to the foregoing that, whether or not patentable, which are conceived, developed or created which: (1) relate to the Company’s current or contemplated business; (2) relate to the Company’s actual or demonstrably anticipated research or development; (3) result from any work performed by me for the Company; (4) involve the use of the Company’s equipment, supplies, facilities or trade secrets; (5) result from or are suggested by any work done by the Company or at the Company’s request, or any projects specifically assigned to me; or (6) result from my access to any of the Company’s memoranda, notes, records, drawings, sketches, models, maps, customer lists, research results, data, formulae, specifications, inventions, processes, equipment or other materials (collectively, “Company Materials”).

(b) Company Ownership. All right, title and interest in and to all Subject Ideas and Inventions, including but not limited to all registrable and patent rights which may subsist therein, shall be held and owned solely by the Company, and where applicable, all Subject Ideas and Inventions shall be considered works made for hire. I shall mark all Subject Ideas and Inventions with the Company’s copyright or other proprietary notice as directed by the Company and shall take all actions deemed necessary by the Company to protect the Company’s rights therein. In the event that the Subject Ideas and Inventions shall be deemed not to constitute works made for hire, or in the event that I should otherwise, by operation of law, be deemed to retain any rights (whether moral rights or otherwise) to any Subject Ideas and Inventions, I agree to assign to the Company, without further consideration, my entire right, title and interest in and to each and every such Subject Idea and Invention.

(c) Disclosure. I agree to disclose promptly to the Company full details of...

CONSULTING AGREEMENT

This Consulting Agreement (this “Agreement”) is entered into as of __________, 20___, by and between _______________________ (the “Company”), and [Name of Consultant] (the “Consultant”).

RECITALS

1. Consultant has expertise in the area of the Company’s business and is willing to provide consulting services to the Company.

2. The Company is willing to engage Consultant as an independent contractor, and not as an employee, on the terms and conditions set forth herein.

AGREEMENT

In consideration of the foregoing and of the mutual promises set forth herein, and intending to be legally bound, the parties hereto agree as follows:

1. Engagement.

1. The Company hereby engages Consultant to render, as an independent contractor, the consulting services described in Exhibit A hereto and such other services as may be agreed to in writing by the Company and Consultant from time to time.
2. Consultant hereby accepts the engagement to provide consulting services to the Company on the terms and conditions set forth herein.

2. Term. This Agreement will commence on the date first written above, and unless modified by the mutual written agreement of the parties, shall continue until the satisfactory completion of the services set forth in Exhibit A. Company may terminate this Agreement upon 10 days written notice to Consultant.

3. Compensation.

1. In consideration of the services to be performed by Consultant, the Company agrees to pay Consultant in the manner and at the rates set forth in Exhibit A.
2. Out of pocket expenses incurred by Consultant that are authorized by the Company in advance in writing shall be reimbursed by Company to Consultant.
   
   

4. Consultant’s Business Activities.

1. During the term of this Agreement, Consultant will engage in no business or other activities, which are or may be, directly or indirectly, competitive with the business activities of the Company without obtaining the prior written consent of the Company.
2. Consultant shall devote such time, attention and energy to the business and affairs of the Company as requested by the Company, and in any event no less than the amount of time specified in Exhibit B hereto.
3. Consultant shall keep and periodically provide to the Company a log describing the work activities and hours of Consultant.
   
   

5. Confidential Information and Assignments. Consultant is simultaneously executing a Confidential Information and Invention Assignment Agreement for Consultants in the form of Exhibit B (the “Confidential Information and Invention Assignment Agreement”). The obligations under the Confidential Information and Invention Assignment Agreement shall survive termination of this Agreement for any reason.

6. Interference with the Company’s Business.

1. Notwithstanding any other provision of this Agreement, for a period of one year after termination of this Agreement, Consultant shall not, directly or indirectly, employ, solicit for employment, or advise or recommend to any other person that such other person employ or solicit for employment, any person employed or under contract (whether as a consultant, employee or otherwise) by or to the Company during the period of such person’s association with the Company and one year thereafter.
2. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, for a period of one year after termination of this Agreement, Consultant shall not, directly or indirectly, solicit any clients or customers of the Company. Consultant agrees that such solicitation....

Consulting Services Agreement

Consulting Services Agreement (the “Agreement”), effective is by and between __________, a corporation, with its principal office at ________________________ (hereinafter “Client”), and ________________, with a principal office at ____________________ (hereinafter the “Consultant”).

WHEREAS, Client finds that the Consultant is willing to perform certain work hereinafter described in accordance with the provisions of this Agreement; and

WHEREAS, Client finds that the Consultant is qualified to perform the work, all relevant factors considered, and that such performance will be in furtherance of Client’s business.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein and intending to be legally bound, the parties hereto agree as follows:

1. SERVICES.

1.1   Services to Client. The Consultant shall provide the following (“Services”) to Client on the following timetable:

____________________________________
____________________________________
____________________________________

2. PAYMENT AND INVOICING TERMS.

2.1   Payment for Services. The Consultant will be paid as follows: ____________________________________
__________________________________________________ ____________________________________

2.2   Reimbursable Costs. Client shall reimburse the Consultant all costs incurred in connection with the Services rendered. Reimbursable costs include, but are not limited to, travel costs, subcontractors, materials, computer costs, telephone, copies, delivery, etc. that are attributable to a project or Service (the “Reimbursable Costs”). Travel costs are defined as air travel, lodging, meals and incidentals, ground transportation, tools, and all costs associated with travel. All extraordinary travel expenses must receive Client’s approval. The Consultant shall provide to Client substantiation of Reimbursable Costs incurred.

2.3   Invoicing.

(a)   Invoices will submitted monthly by the Consultant for payment by Client. Payment is due upon receipt and is past due seven (7) business days from receipt of invoice. If Client has any valid reason for disputing any portion of an invoice, Client will so notify the Consultant within seven (7) calendar days of receipt of invoice by Client, and if no such notification is given, the invoice will be deemed valid. The portion of the Consultant’s invoice that is not in dispute shall be paid in accordance with the procedures set forth herein.

(b)   A finance charge of 1.5% per month on the unpaid amount of an invoice, or the maximum amount allowed by law, will be charged on past due accounts. Payments by Client will thereafter be applied first to accrued interest and then to the principal unpaid balance. Any attorney fees, court costs, or other costs incurred in collection of delinquent accounts shall be paid by Client. If payment of invoices is not current, the Consultant may suspend performing further work.

2.4   Taxes. All amounts payable pursuant to this Agreement are exclusive of taxes. Accordingly, there will be added to any such amount payable by Client the monetary sum equal to any and all current and future applicable taxes, however designated, incurred as a result of or otherwise in connection with this Agreement or the Services, including without limitation state and local privilege, excise, sales, services, withholding, and use taxes and any taxes or other amounts in lieu thereof paid or payable by Client (other than taxes based on the Consultant’s net income). If Client does not pay such taxes, the Consultant may make such payments and Client will reimburse the Consultant for those payments. Client will hold the Consultant harmless for any payments made by Client pursuant to this Section 2.4.

3. CHANGES.

Client may, with the approval of the Consultant, issue written directions within the general scope of any Services to be ordered. Such changes (the “Change Order”) may be for additional work or the Consultant may be directed to change the direction of the work covered by the Task Order, but no change will be allowed unless agreed to by the Consultant in writing.

4. STANDARD OF CARE.

The Consultant warrants that it services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any services performed or software developed. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY THE CONSULTANT CONCERNING THE SERVICES AND RELATED WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY....

INDEPENDENT CONTRACTOR AGREEMENT

This Independent Contractor Agreement (the “Agreement”) is made and entered between _____________________________, an independent contractor hereafter referred to as “Contractor”, and ____________________, hereafter referred to as “Company”.

In consideration of the covenants and conditions hereinafter set forth, Company and Contractor agree as follows:

1. SERVICES

Contractor shall perform the following services for the Company (the “Work”).

_______________________________________________________________
_______________________________________________________________
_______________________________________________________________

2. REPORTING

Contractor shall report to ______________________________. Contractor shall provide a weekly written report to the Company on his progress on assignments.

3. TERM

This Agreement shall commence on __________, 20___ and shall expire on __________, 20__. Contractor agrees to perform services for the Work to Company on or before the expiration of the term set forth above. The Company may terminate the use of Contractor’s services at any time without cause and without further obligation to Contractor except for payment due for services prior to date of such termination. Termination of this Agreement or termination of services shall not affect the provisions under Sections 5-11, hereof, which shall survive any termination.

4. PAYMENT

Contractor will be paid for Work performed under this Agreement as follows:

_______________________________________________________________
_______________________________________________________________
_______________________________________________________________

Contractor will submit an invoice for the Work on ___________________________. Invoices shall be paid by the Company within 15 business days of receipt.

5. CONFIDENTIALITY AND OWNERSHIP

1. Contractor recognizes and acknowledges that the Company possesses certain confidential information that constitutes a valuable, special, and unique asset. As used herein, the term “confidential information” includes all information and materials belonging to, used by, or in the possession of the Company relating to its products, processes, services, technology, inventions, patents, ideas, contracts, financial information, developments, business strategies, pricing, current and prospective customers, marketing plans, and trade secrets of every kind and character, but shall not include (a) information that was already within the public domain at the time the information is acquired by Contractor, or (b) information that subsequently becomes public through no act or omission of the Contractor. Contractor agrees that all of the confidential information is and shall continue to be the exclusive property of the Company, whether or not prepared in whole or in part by Contractor and whether or not disclosed to or entrusted to Contractor’s custody. Contractor agrees that Contractor shall not, at any time following the execution of this Agreement, use or disclose in any manner any confidential information of the Company.
2. To the extent any inventions, technologies, reports, memoranda, studies, writings, articles, plans, designs, specifications, exhibits, software code, or other materials prepared by Contractor in the performance of services under this Agreement include material subject to copyright protection, such materials have been specially commissioned by the Company and they shall be deemed “work for hire” as such term is defined under U.S. copyright law. To the extent any such materials do not qualify as “work for hire” under applicable law, and to the extent they include material subject to copyright, patent, trade secret, or other proprietary rights protection, Contractor hereby irrevocably and exclusively assigns to the Company, its successors, and assigns, all right, title, and interest in and to all such materials. To the extent any of Contractor rights in the same, including without limitation any moral rights, are not subject to assignment hereunder, Contractor hereby irrevocably and unconditionally waives all enforcement of such rights. Contractor shall execute and deliver such instruments and take such other actions as may be required to carry out and confirm the assignments contemplated by this paragraph and the remainder of this Agreement. All documents, magnetically or optically encoded media, and other tangible materials created by Contractor as part of its services under this Agreement shall be owned by the Company.

6. RETURN OF MATERIALS

Contractor agrees that upon termination of this Agreement, Contractor will return…