Last Revised: December 2015
Unless otherwise agreed to in a writing signed by both Opportunity and Propassional, the terms and conditions of the Service Contract are as set forth in this Service Contract Policy. Opportunity and Propassional may not agree to any other terms and conditions that affect the rights or responsibilities of PROPASSIONAL as described herein. Capitalized terms used herein but not otherwise defined will have the definitions provided in the Terms of Service.
Propassional will perform Services in a professional and workmanlike manner and will timely deliver any agreed-upon Work Product.
2. Opportunity PAYMENTS AND BILLING.
Opportunity will pay PROPASSIONAL the agreed-upon amount for the approved project in accordance with Section 3 of the Agreement.
3. TERMINATION OF A SERVICE CONTRACT.
Opportunity may terminate at any time but may not recover any payments already made. Propassional may terminate the Service Contract at any time if no payment by Opportunity has been made. If a payment has been made on a Contract, Propassional may terminate only with Opportunityʼs prior written consent.
4. Opportunity MATERIALS.
Opportunity hereby grants Propassional a limited, non-exclusive, revocable (at any time, at Opportunityʼs sole discretion) license to use instructions, materials, information and any other intellectual property that Opportunity provides to Propassional in connection with a particular Service Contract (collectively, the “Opportunity Materials”), and the intellectual property rights therein, solely for the performance of the Services. Opportunity reserves all other rights and interest in and to the Opportunity Materials. Upon completion or termination of the Service Contract, or upon written request by Opportunity, Propassional will immediately return all Opportunity Materials to Opportunity and further agrees to purge all copies of Opportunity Materials and Work Product contained in or on Propassionalʼs premises, systems or any other equipment otherwise under Propassionalʼs control. Within ten (10) days of Opportunityʼs request, Propassional agrees to provide written certification to Opportunity that all Opportunity Materials have been returned or purged.
5. WORK PRODUCT.
Propassional will make full and prompt disclosure to Opportunity of all inventions, discoveries, designs, developments, methods, modifications, improvements, ideas, products, processes, algorithms, databases, computer programs, formulae, techniques, know-how, trade secrets, graphics or images, and audio or visual works and other works of authorship (collectively, “Developments”), whether or not patentable or copyrightable, that are created, made, conceived or reduced to practice by Propassional for Opportunity during the term of the Service Contract that results from the Services (“Work Product”). Propassional acknowledges that all work performed by Propassional is on a “work for hire” basis, and Propassional hereby assigns and transfers and, to the extent any such assignment cannot be made at present, will assign and transfer, to Opportunity and its successors and assigns all Propassionalʼs right, title and interest in all Work Product, and all related patents, patent applications, trademarks and trademark applications, service marks and service mark applications, copyrights and copyright applications, and other intellectual property rights in all countries and territories worldwide and under any international conventions.
Propassional will cooperate fully with Opportunity, both during and after the term of the Service Contract, with respect to the procurement, maintenance and enforcement of intellectual property rights in, to or that claim or cover the Work Product. Propassional will sign, both during and after the term of the Service Contract, all papers, including without limitation copyright applications, patent applications, declarations, oaths, assignments of priority rights, and powers of attorney, which Opportunity may deem necessary or desirable in order to protect its rights and interests in any Work Product. If Opportunity is unable, after reasonable effort, to secure Propassionalʼs signature on any such papers, Propassional hereby irrevocably designates and appoints each current and future officer of Opportunity as Propassionalʼs agent and attorney-in-fact to execute any such papers on Propassionalʼs behalf, and to take any and all actions as Propassional may deem necessary or desirable in order to protect its rights and interests in any Work Product.
6. PRE-EXISTING DEVELOPMENTS IN WORK PRODUCT.
If Propassional incorporates any Development that Propassional has, alone or jointly with others, conceived, developed or reduced to practice prior to the date of the Service Contract that Propassional considers to be Propassionalʼs property or the property of third parties and that Propassional wishes to have excluded from the scope of the Service Contract (collectively, “Pre-Existing Developments”) into the Work Product, Propassional hereby grants Opportunity and its affiliates a perpetual, irrevocable, paid-up, royalty-free, nonexclusive, worldwide license (with the full right to sublicense directly, or indirectly through multiple tiers) to (a) copy, distribute, display, perform, and create derivative works of the Pre-Existing Developments, in whole or in part; and (b) use or otherwise practice the Pre-Existing Developments, in whole or in part, including without limitation, the right and license to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Pre-Existing Developments and the right to practice any method covered by or included in the Pre-Existing Developments. Notwithstanding the foregoing, Propassional will not incorporate, or permit to be incorporated, Pre-Existing Developments in any Work Product without Opportunityʼs prior written consent.
7. CONFIDENTIAL INFORMATION.
“Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by a Opportunity or a Propassional (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to a Propassional (in the case of Opportunity as the Disclosing Party) or a Opportunity (in the case of Propassional as the Disclosing Party) (the “Receiving Party”) or which would be apparent to a reasonable person, familiar with Disclosing Partyʼs business and the industry in which each operates, to be of a confidential or proprietary nature the maintenance of which is important to the Disclosing Party; provided, however, that reports and/or information related to or regarding the Services or Work Product, or a Disclosing Partyʼs business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in the following sentence. Information and data will not be deemed Confidential Information hereunder if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party.
7.2 Use of Confidential Information.
The Receiving Party acknowledges that it will have access to the Disclosing Partyʼs Confidential Information. The Receiving Party agrees that it will not (i) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under this Agreement or a Services Contract, as applicable, or (ii) disclose any such Confidential Information to any party, other than furnishing such Confidential Information to its (a) employees who are required to have access to the Confidential Information in connection with the exercise of Receiving Partyʼs rights and performance of its obligations under this Agreement or a Services Contract, as applicable, and (b) professional advisers (e.g., lawyers and accountants); provided, however, that any and all such employees and advisers are bound by agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in accordance with the terms and conditions of this Services Contract Policy. The Receiving Party agrees that it will not allow any unauthorized person access to Disclosing Partyʼs Confidential Information, and that Receiving Party will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information. In the event that the Receiving Party is required by law to make any disclosure of any of Disclosing Partyʼs Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
7.3 Additional Restrictions.
Propassional will not disclose to Opportunity any information that constitutes material, non-public information about any third party, information that Propassional has a duty or obligation to keep confidential (whether by agreement, law, rule, regulation, fiduciary duty, or other similar obligation or restriction), information the disclosure of which would be in violation of securities laws and/or information that is proprietary to a third party (including past or present employers or companies for which Propassional have consulted) and not owned solely by Propassional.
If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at Opportunityʼs or Propassionalʼs written request (which may be made at any time at Opportunityʼs or Propassionalʼs sole discretion), Opportunity or Propassional (as the case may be) will promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Opportunity or Propassional, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this Section 7.3 within ten (10) days after the receipt of Disclosing Partyʼs written request to certify.
Without limiting Section 7.1 above (Confidentiality), Opportunity and Propassional will not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a Services Contract or except as the Disclosing Party will permit.
8. WORKER CLASSIFICATION.
The intent is that Propassionals will be properly classified as independent Propassionals of Opportunity. Notwithstanding the foregoing, Opportunity assumes all liability for proper classification of Propassionals as independent Propassionals or employees based on applicable legal guidelines.
This Agreement does not create a partnership or agency relationship between Opportunity and Propassional. Propassional does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Opportunity. Propassional acknowledges that PROPASSIONAL does not, in any way, supervise, direct, or control Propassionalʼs work or Services performed in any manner. PROPASSIONAL does not set Propassionalʼs work hours and location of work. PROPASSIONAL will not provide Propassional with training or equipment needed for any Service Contract. PROPASSIONAL will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Opportunity and Propassional 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, in any nation, with respect to Propassionalʼs performance of Services.
Opportunity may not require an exclusive relationship between Opportunity and Propassional. Propassional, as an independent Propassional, is free at all times to provide Services to persons or businesses other than Opportunity, including any competitor of Opportunity.
9. AUDIT RIGHTS.
Opportunity and Propassional each will (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to PROPASSIONAL upon request. PROPASSIONAL, or PROPASSIONALʼs advisors or agents, will have the right, but not the obligation, to routinely, but no more frequently than annually, audit Propassionalʼs operations and records to confirm compliance. Nothing in this provision should be construed as providing PROPASSIONAL with the right or obligation to supervise or monitor the actual Services performed by Propassional.
10. THIRD PARTY BENEFICIARY.
PROPASSIONAL is hereby named as a third party beneficiary of each Service Contract. Opportunitys and Propassionals understand and agree that PROPASSIONAL is an intended third party beneficiary of each Service Contract and that PROPASSIONAL, as intended third party beneficiary of each Service Contract, has the right to directly enforce all rights and obligations under the Service Contract.
All Service Contracts will be governed by the minimum terms and conditions of this Services Contract Policy.
12. ENTIRE AGREEMENT.
The terms and conditions set forth in this Services Contract Policy and any additional or different terms expressly agreed by Opportunity and Propassional will constitute the entire agreement and understanding of Opportunity and Propassional with respect to each Service Contract and will cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.