The Company desires to retain the services of the Contractor and the Contractor desires to perform certain services for the Company. Said services shall be in the form of original written works authored by Contractor for Company as a Work for Hire, as that term is defined by federal statute. In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, intending to be legally bound, the parties agree as follows:
1. SERVICES.
The Contractor agrees to perform certain services in connection with writing periodic opinion pieces for a blogging web-site at TODAY.COM and related services as may be specified in email and is incorporated herein by reference, at such times and in such manner as shall be mutually agreed from time to time by the Company and the Contractor. The Contractor shall render the services to be provided hereunder in good faith and with diligence. Although this Agreement does not require any specific time commitment from the Contractor, the Contractor shall devote such time as is reasonably necessary in order to perform its duties under this Agreement in a professional manner.
2. TERM.
This Agreement shall commence on the date hereof (the "Commencement Date") and shall continue until March 1, 2009 unless sooner terminated in accordance with Section 6 (such period, as it may be extended by mutual agreement of the parties, being referred to as the "Contracted Period").
3. COMPENSATION.
The Company shall pay to the Contractor certain compensation as more particularly set forth in email payable in equal weekly or monthly installments as set forth in email, which is incorporated herein by reference.
3.1 OUT-OF-POCKET EXPENSES.
The Company will only reimburse the Contractor for all properly documented reasonable expenses approved by Company in advance and incurred by the Contractor in the performance of services hereunder.
4. COOPERATION.
The Contractor shall use his best efforts in the performance of his obligations under this Agreement. The Company shall provide such access to its information and property as may be reasonably required in order to permit the Contractor to perform his obligations hereunder. The Contractor shall cooperate with the Company's personnel, shall not interfere with the conduct of the Company's business and shall observe all rules, regulations and security requirements of the Company concerning the safety of persons and property.
5. PROTECTED AND PROPRIETARY INFORMATION
(a) The Contractor acknowledges that its relationship with the Company is one of high trust and confidence and that in the course of service to the Company, the Contractor will have access to and contact with Proprietary Information. The Contractor agrees that he/she will not, during the Contracted Period or at any time thereafter, disclose to others, or use for his/her own benefit or the benefit of others except the Company, any Proprietary Information or Invention.
(b) For purposes of this Agreement, the term "Proprietary Information" shall mean all information (whether or not patentable and whether or not copyrightable) owned, possessed or used by the Company, including, without limitation, any Invention, vendor information, customer information, apparatus, equipment, trade secret, process, research, report, technical data, know-how, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, unpublished financial information, budget, and list that is communicated to, learned of, developed or otherwise acquired by the Contractor in the course of his service as a Contractor to the Company.
(c) The Contractor's obligations under this Section 5 shall not apply to any information that
(i) is or becomes known to the general public under circumstances involving no breach by the Contractor or others of the terms of this Section 5; (ii) is generally disclosed to third parties by the Company without restriction on such third parties; or (iii) is approved for release by written authorization of the Board of Directors of the Company.
(d) Upon termination of this Agreement, or at any other time upon request by the Company, the Contractor shall promptly deliver to the Company all records, files, memoranda, notes, designs, data, reports, price lists, customer lists, drawings, plans, computer programs, software, software documentation, sketches, laboratory and research notebooks and other documents (and all copies or reproductions of such materials) relating to the business of the Company.
(e) The Contractor acknowledges that the Company from time to time may have agreements with other persons, entities or governmental agencies (“Third parties”) that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements or regarding the confidential nature of such work or the confidential nature of information obtained during such work. The Contractor agrees to be bound by all such obligations and restrictions that are known to it and to take all action necessary to discharge the obligations of the Company under such agreements. Absent specific knowledge of any confidentiality obligation in any contract between Company and Third parties, Contractor shall nevertheless treat any such information obtained in connection with the performance of his duties involving Third parties as confidential, protected and proprietary as any other information he may receive from Company.
5.1 NON-COMPETITION.
Notwithstanding anything that may be contained herein to the contrary, Contractor may perform services for any competitor however Contractor must refrain from publishing the same material published on TODAY.COM on any other website, blog site, or publication.
5.2 REMEDIES.
The Contractor acknowledges that any breach of the provisions of this Section 5 shall result in serious and irreparable injury to the Company for which the company cannot be adequately compensated by monetary damages alone. The Contractor agrees, therefore, that, in addition to any other remedy it may have, the Company shall be entitled to enforce the specific performance of this Agreement by the Contractor and to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages. The provisions, restrictions, covenants and obligations contained in this Section 5, 5.1 and 5.2 shall survive termination of this Agreement.
6. TERMINATION WITHOUT CAUSE.
The Company shall have the right to terminate this Agreement at any time and for any reason, with or without cause. In the event the Company desires to terminate this Agreement, the Company shall not be required to give the Contractor written notice of its intent to terminate
7. INDEPENDENT CONTRACTOR STATUS.
The Contractor shall perform all services under this Agreement, as an "independent contractor" and neither the Contractor nor any of the Contractor's personnel, if any, shall be an employee or agent of the Company. The Contractor is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the Company or to bind the Company in any manner. Contractor shall be issued all appropriate tax forms as may be required in the country in which Contractor resides to reflect that Contractor is as an independent contractor. Company will not withhold any sums that an employer may be otherwise required to withhold for an employee. Contractor shall be liable for payment of all associated taxes in every jurisdiction in which Contractor is liable for the payment of tax as an independent contractor.
8. INDEMNIFICATION.
Contractor shall be responsible for what he/she writes for Company although everything Contractor authors shall belong to Company upon publication. Contractor is responsible for the accuracy of what he/she writes. Contractor may express his/her opinions and it should be clear from the context that Contractor is expressing an opinion, not fact. Contractor must refrain from defaming any person, firm or company. Contractor agrees to defend and hold Today.com, its officers, directors, attorneys, affiliates, subsidiaries, successors and assigns, harmless from all claims, suits and demands related to anything Contractor’s author for use at Today.com. This indemnification shall survive the termination of this agreement and Contractor’s affiliation with Today.com. This Section 8 shall survive termination of this Agreement.
9. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement, except however the initial offer letter agreement between Company and Contractor, 378499-1 to the extent not inconsistent with the terms of this Agreement, is incorporated herein by reference.
10. AMENDMENT.
This Agreement may be amended or modified only by a written instrument executed by both the Company and the Contractor.
11. GOVERNING LAW AND VENUE.
This Agreement shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to or giving effect to Pennsylvania’s conflict of laws provisions. All litigation brought for breach of this Agreement, or in any way related to this Agreement, its implementation or interpretation may only be brought in the state or federal courts of the Commonwealth of Pennsylvania and particularly those courts situated within the Eastern District of Pennsylvania.
12. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon, and inure to the benefit of, both parties and their respective successors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to its assets or business, provided, however, that the obligations of the Contractor are personal and shall not be assigned by him.
13. MISCELLANEOUS.
No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement. In the event that any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
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