Form 23-3

Independent Contractor Agreement

[For Hiring Company]

This independent contractor agreement (“Agreement”) is made and entered into as of [date] between [name of limited liability company], a limited liability company organized under the laws of the state of Texas (“Company” or “[name of limited liability company]”), and [name of contractor], [an individual/[a/an] [type of entity] (“Contractor”). The Company desires to retain Contractor as an independent contractor to perform certain services for the Company, and Contractor is willing to perform those services, on terms set forth more fully below. In consideration of the mutual promises contained herein, the parties agree as follows:

1.Services and Compensation. Contractor agrees to perform for the Company the ser­vices (“Services”) described in Exhibit A, attached hereto and incorporated herein. Contractor will be responsible for successfully completing all of the Services according to Company specifications and within Company policy guidelines, which may be revised by the Company without prior notice. The Company agrees to pay Contractor the compensation set forth in Exhibit A for the performance of the Services. Exhibit A may be updated from time to time as needed and agreed to by the parties. The services may include, but are not limited to, [spec­ify].

2.Confidentiality

a.Definition. “Confidential Information” means any Company proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, vendor lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configura­tion information, marketing, finances, or other Company business informa­tion disclosed to or accessed by Contractor either directly or indirectly in writing, orally, or by drawings or inspection of parts or equipment.

b.Nonuse and Nondisclosure. Contractor will not, during or subsequent to the term of this Agreement, use the Company’s Confidential Information for any purpose other than the performance of the Services on behalf of the Company or disclose the Company’s Confidential Information to any third party. It is understood that all Confidential Information will remain the sole property of the Company. Contractor further agrees to take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information. Confi­dential Information does not include information that (i) is known to Contrac­tor on a nonconfidential basis at the time of disclosure to Contractor by the Company as evidenced by written records of Contractor, (ii) has become pub­licly known and made generally available through no breach by Contractor of this Agreement nor any other wrongful act of Contractor, or (iii) has been rightfully received by Contractor on a nonconfidential basis from a third party that is authorized to make the disclosure. Without the Company’s prior written approval, Contractor will not directly or indirectly disclose to anyone the existence or terms and conditions of this Agreement or the fact that Con­tractor has this arrangement with the Company.

c.Third-Party Confidential Information. Contractor recognizes that the Com­pany may receive from third parties their confidential or proprietary informa­tion subject to a duty on the Company’s part to maintain the confidentiality of that information and to use it only for certain limited purposes. Contractor agrees that Contractor owes the Company and those third parties, during the term of this Agreement and afterward, a duty to hold all such confidential or proprietary information in the strictest confidence, not to disclose it publicly or to any person or entity, and not to use it except as necessary in carrying out the Services for the Company consistent with the Company’s agreement with those third parties. Between the Company and Contractor for purposes of this Agreement, all such third-party information will be deemed to be the Com­pany’s Confidential Information.

d.Return of Materials. Upon the termination of this Agreement, or upon the Company’s earlier request, Contractor will deliver to the Company all of the Company’s property or Confidential Information that Contractor may have in Contractor’s possession or control.

e.Exception to Confidentiality Obligations. Notwithstanding the confidential­ity obligations contained in this section 2, Contractor will not be held liable under any federal or state trade secret law for the disclosure of a Company trade secret that is made (i) in confidence to a federal, state, or local govern­ment official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if the fil­ing is made under seal.

3.Ownership

a.Assignment. All work product created or developed by the Company and Contractor in the course of performing the agreed Services, including but not limited to ideas, concepts, discoveries, techniques, designs, inventions, pro­cesses, procedures, formulas, methods, software, documentation, or other works of authorship developed or created by Contractor, Contractor’s person­nel, or Contractor’s agents (“Work Product”), and all intellectual property rights to the Work Product, are the sole and exclusive property of the Com­pany upon payment for work rendered. Contractor hereby assigns fully to the Company all Work Product and all related copyrights, patents, and other intellectual property rights. Contractor waives all rights of attribution, moral rights, and similar rights wherever existing in and to any of the foregoing.

b.Limited License. During the term of this Agreement, the Company grants to Contractor a limited royalty-free license to use its intellectual property in fur­therance of the Services and in a manner as authorized by the Company. This limited license will automatically terminate upon the termination of this Agreement and does not extend to any actions taken outside of providing the Services to Company clients. The license may include using the Company’s name, logo, and other identifying marks that the Company may authorize in writing in its sole discretion.

c.Further Assurances. Contractor agrees to assist the Company, or its desig­nee, at the Company’s expense, in every proper way (i) to secure the Com­pany’s rights in the Work Product and any related copyrights, trademarks, or other intellectual property rights in all countries, including the disclosure to the Company of all pertinent related information and data and the execution of all applications, specifications, oaths, assignments, and all other instru­ments the Company deems necessary in order to apply for and obtain those rights, and (ii) to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive right, title, and interest in and to the Work Product and any related copyrights, trademarks, or other intellectual property rights. Contractor further agrees that Contractor’s obligation to exe­cute or cause to be executed, when it is in Contractor’s power to do so, any such instrument or papers will continue after the termination of this Agree­ment. The Company will provide reasonable notice to Contractor of its need for Contractor’s assistance in accordance with this paragraph and will reason­ably accommodate Contractor in carrying out the obligation.

d.Pre-Existing Materials. Contractor will not incorporate any third-party work product or work of authorship nor any invention, process, improve­ment, development, concept, discovery, or trade secret or other confidential or proprietary information owned by any third party into any Work Product without the Company’s and the applicable third party’s prior written permis­sion.

4.Warranties. Contractor will perform the obligations described in this Agreement in a good and workmanlike manner with due diligence and in full compliance with this Agree­ment’s terms and conditions, all mutually agreed to specifications and acceptance criteria, and applicable law. Contractor, at its expense, will use reasonable efforts to correct any Services or Work Product performed by or delivered by Contractor that do not conform with this war­ranty.

5.Conflicting Obligations and Restrictions

a.Conflicting Obligations. Contractor certifies that it is unaware of any cur­rent agreement or obligation that is in conflict with any of the provisions of this Agreement or that would preclude Contractor from complying with this Agreement’s provisions, and Contractor certifies that it will not enter into a conflicting agreement during the term of this Agreement.

b.Noncompetition. During the term of this Agreement and for a period of twelve months after the Agreement’s termination, Contractor agrees that it will not, either directly or indirectly, solicit, induce, recruit, or encourage any of the Company’s employees to leave their employment; hire or take away those employees; or attempt to solicit, induce, recruit, encourage, hire, or take away those employees, either for Contractor itself or for any other person or entity. Further, Contractor agrees that during the term of this Agreement and for a period of twelve months after the Agreement’s termination, Contractor will not, either directly or indirectly, attempt to inhibit or alter the Company’s customer, vendor, or other relationships.

c.Nonsolicitation. During the term of this Agreement and for a period of twelve months after the Agreement’s termination, Contractor agrees that it will not, directly or indirectly, through employment or ownership interest, compete with the Company or any of its affiliates or subsidiaries through ser­vices to any business that conducts marketing and promotion of [specify, e.g., reduced-price online retail sales] within the city of [city].

6.Term and Termination. This Agreement will commence on the date first written above and will continue until either party terminates the Agreement as provided herein (“Initial Term”). Either party may terminate this Agreement immediately for any reason upon provid­ing written notice to the other party. Upon termination of the Agreement, the Company will remove Contractor’s access to all merchant accounts and websites maintained by the Com­pany.

Sections [specify] will survive the expiration or termination of this Agreement. Addi­tionally, the Company will pay all amounts owing to Contractor for Services completed and accepted by the Company before the termination date.

7.Independent Contractor. It is the express intention of the parties that Contractor is an independent contractor. Nothing in this Agreement will in any way be construed to constitute Contractor as an agent, employee, or representative of the Company, and Contractor will per­form the Services as an independent contractor. Except as otherwise agreed by the Company, Contractor agrees to furnish (or reimburse the Company for) all tools and materials necessary to accomplish this contract and will incur all expenses associated with performance. Contrac­tor acknowledges and agrees that Contractor is obligated to report as income all compensation received by Contractor pursuant to this Agreement, and Contractor agrees to and acknowl­edges the obligation to pay all related self-employment and other taxes. Contractor acknowl­edges and agrees that it will not receive, and it is the intent of the parties that neither Contractor nor any employees or contractors of Contractor receive, any Company-sponsored benefits from the Company as either a consultant or an employee. Those benefits include but are not limited to paid vacation, sick leave, medical insurance, and retirement plan participa­tion. In the Company’s sole discretion, the Company may require proof that Contractor main­tains certain commercial insurance policies and limits before beginning the Services.

8.Indemnification. Each party will indemnify and hold harmless the other to this Agree­ment and its members, directors, officers, employees, and shareholders (“Indemnified Par­ties”) from and against all claims, suits, investigations, proceedings, liabilities, damages, losses, fines, penalties, costs, and expenses, including, without limitation, reasonable attor­ney’s fees and costs of suit, arising out of or in connection with this Agreement unless that damage is caused by the Indemnified Party’s gross negligence or willful misconduct.

9.Limitation of Liability. The parties agree that the Company’s liability for damages from any cause of action whatsoever, regardless of the form of action, will not exceed the fees paid or to be paid by the Company pursuant to services under this Agreement. In no event will either party be liable for lost profits or any indirect, incidental, consequential, or special damages of any nature what­soever or for any claim or demand by any third person, arising out of or related to the Agreement or the performance or breach thereof, even if advised of this possibility.

10.Dispute Resolution

Before resorting to the formal dispute resolution steps described below, a complaining party must first contact the other party directly to seek informal resolution in good faith by sending written notice of the matter in dispute to the other party via the e-mail address listed below or as periodically updated in writing by the parties.

Any controversies arising out of the terms of this Agreement or its interpretation that are not resolved by good-faith informal resolution attempts will be submitted to mediation in [county] County, Texas, before seeking additional legal remedies. The Company and Contrac­tor will each pay one-half of the costs and expenses of mediation.

In any action at law or inequity that is brought by one of the parties to enforce or inter­pret the provisions of this Agreement, the prevailing party will be entitled to reasonable attor­ney’s fees and court costs.

[Notwithstanding the foregoing,] Contractor acknowledges that its violation of the terms of this Agreement, particularly those terms in [specify, e.g., sections 2 through 7 and Exhibit A], may cause the Company to suffer immediate and material irreparable harm with incalculable damages that would be inadequately remedied by money damages. In response to such violations, the Company may seek immediate equitable relief against Contractor, includ­ing but not limited to specific performance, temporary restraining order, and injunctive relief, without first pursuing informal resolution or mediation.

[Except as otherwise provided in this section 10, the Company/The Company] and Contractor agree that any dispute or controversy arising out of, relating to, or in connection with the interpretation, validity, construction, performance, breach, or termination of this Agreement will be resolved by a court of appropriate jurisdiction in [county] County, Texas.

11.Miscellaneous

a.Governing Law. This Agreement will be governed by the laws of the state of Texas without regard to its conflict-of-laws provisions.

b.Entire Agreement. This Agreement is the entire agreement of the parties and supersedes any prior agreements between them, whether written or oral, regarding the subject matter herein.

c.Waiver. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly autho­rized representatives of the parties.

d.Severability. Each party agrees that if any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible to give effect to the intent of the parties; the provision will otherwise be severed from this Agreement; and the provision will not in any way affect or impair the validity, legality, and enforceability of the remaining provisions of this Agreement.

e.Assignments. Neither this Agreement nor any right or interest in it may be assigned or transferred by Contractor without the express written consent of the Company.

f.Notice. Any notice will be addressed to the party being notified at the e-mail address or mailing address set forth in this Agreement or another address as either party may provide in writing and will be deemed given upon deliv­ery.

g.Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will consti­tute the same instrument. The Agreement may be executed and delivered by facsimile or PDF, which will have the same force and effect as original docu­ments with original signatures.

IN WITNESS WHEREOF, this Agreement has been signed by the parties to be effec­tive as of the date stated in this Agreement.

Company:
[Name of limited liability company], a Texas limited liability company

By:      
     [Name], [title]
     [Address]
     [Phone]
     [Fax]
     [E-mail]

Date:       

Contractor:
[Name of contractor], a Texas [type of entity]

By:      
     [Name], [title]
     [Address]
     [Phone]
     [Fax]
     [E-mail]

Date:       

Exhibit A

Services and Compensation

1.Services. Contractor will render to the Company the following Services:

a.[specify]

2.Compensation and Expenses. The Company will pay to Contractor the following Compensation amounts:

a.[specify]

The Company will pay to Contractor all Compensation earned for performing the Ser­vices within [number] days of when the client project payments have been received by the Company. Unless otherwise agreed by the Company, the Company will not reimburse Con­tractor for out-of-pocket expenses incurred by Contractor in performing the Services.