1. Definitions. All capitalized terms used herein, including those set forth in Exhibit A, have the meanings indicated, and cognate terms have corresponding meanings.
2. Services of Independent Contractor. Independent Contractor shall perform the Services for Simpson Strong-Tie in accordance with this Agreement as detailed in individual SOWs signed by the each of the Parties. Unless otherwise stated herein, in the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any SOW, the terms and conditions of this Agreement shall govern unless the SOW expressly states that it amends a specific provision of this Agreement. Independent Contractor agrees to provide, at its own expense, Consultants to perform the Services. Independent Contractor further agrees to assign any Consultants who are identified by name, or if no Consultants are identified by name, to assign Consultants that match the requirements set by Simpson Strong-Tie. Independent Contractor will honor all reasonable requests by Simpson Strong-Tie to remove and replace any Consultant upon request by Simpson Strong-Tie. Independent Contractor has discretion for the manner in which the Services under this Agreement will be performed, subject to Simpson Strong-Tie’s acceptance of the work performed. Independent Contractor will determine the method, details, and means of performing the Services.
3. Compensation, Reimbursements and SOWs
(a) SOWs. Simpson Strong-Tie shall pay Independent Contractor on a time and materials basis at the hourly rates and pursuant to the terms set forth under each applicable SOW, subject to the terms and conditions herein. In addition to paying Independent Contractor at the applicable hourly rate for the Services performed, if and only to the extent expressly set forth under any applicable SOW, Simpson Strong-Tie shall reimburse Independent Contractor for any Expenses.
(b) Compensation and Reimbursements. Payment to Independent Contractor pursuant to each respective SOW shall be made within thirty (30) days after Simpson Strong-Tie receives an invoice, along with receipts for any Expenses to be reimbursed. Independent Contractor agrees to submit such invoices and receipts within sixty (60) days after the Services were performed and/or the Expenses were incurred. Independent Contractor further agrees that Simpson Strong-Tie will not have any liability whatsoever for any Services performed or Expenses incurred if Independent Contractor fails to submit an invoice and/or receipt to Simpson Strong-Tie within the sixty (60) day period.
4. Relationship of the Parties. Independent Contractor is entering into this Agreement as, and shall continue to be, an independent contractor. Under no circumstances shall Independent Contractor or any Consultant become an employee, partner, agent or principal of Simpson Strong-Tie while this Agreement is in effect. Subject to Sections 7 and 12 of this Agreement, Independent Contractor and each Consultant may represent, perform services for, and contract with other Persons. Independent Contractor understands and agrees that Consultants are not entitled to the rights or benefits afforded to Simpson Strong-Tie’s employees, including disability or unemployment insurance, worker’s compensation, medical insurance, sick leave, or any other employment benefit. Independent Contractor is responsible for providing, at its own expense, disability, worker’s compensation, unemployment and other insurance, as well as all licenses and permits usual or necessary for Independent Contractor and its Consultants to perform the Services. Independent Contractor shall provide orientation to its Consultants explaining the relationship of the parties as agreed to herein.
5. Cooperation. Each Party agrees to comply with all reasonable requests by the other Party for, and to provide access to, all documents and information reasonably necessary to the performance of Independent Contractor’s duties under this Agreement.
6. Independent Contractor’s Tax Obligations. Independent Contractor is responsible for paying when due all payroll and income taxes, including estimated taxes, incurred as a result of the compensation paid by Simpson Strong-Tie to Independent Contractor. On request, Independent Contractor will provide Simpson Strong-Tie with written records demonstrating that Independent Contractor and each Consultant has fulfilled all of its legal obligations, including timely payment of all taxes and estimated taxes for each Consultant employed by Independent Contractor. Independent Contractor agrees to indemnify Simpson Strong-Tie for any Claims resulting from Independent Contractor’s or Consultant’s failure to comply with this provision and for all Claims by any Consultant against Simpson Strong-Tie.
7. Confidentiality and Nondisclosure of Simpson Strong-Tie Information.
(a) Confidential Information. Independent Contractor, on behalf of itself and its employees and Consultants, represents, warrants and agrees it will maintain all Confidential Information in strict confidence and will not at any time, directly or indirectly, use, or permit others to use, or disclose or communicate to any Person, any of the Confidential Information, except as expressly authorized in writing by an authorized executive officer of Simpson Strong-Tie. Without limiting the generality of the foregoing, Independent Contractor acknowledges and agrees that this Section prohibits and precludes any disclosure of Inventions to any Person other than Simpson Strong-Tie and any use of Confidential Information by Independent Contractor or any other Person in competition with Simpson Strong-Tie. If at any time Independent Contractor becomes aware of any possibility that Confidential Information is at risk of being publicly disclosed, Independent Contractor will immediately give written notice to Simpson Strong-Tie so that reasonable efforts can be made to maintain the secrecy of the Confidential Information.
(b) Disclosure to Simpson Strong-Tie. Independent Contractor represents, warrants and agrees that Independent Contractor has not disclosed and will not disclose to Simpson Strong-Tie any trade secrets or other proprietary or confidential information that may not lawfully be so disclosed by the Independent Contractor, by virtue of the ownership of that same by any Third Party or otherwise.
8. Inventions and Original Works.
(a) During the Term of this Agreement, Independent Contractor agrees to promptly and fully disclose to Simpson Strong-Tie any and all Inventions. Upon request of Simpson Strong-Tie at any time, Independent Contractor further agrees to provide, at no cost to Simpson Strong-Tie, any information or assistance requested by Simpson Strong-Tie related to the Inventions, including without limitation, any design, development or testing information and data, prototypes, manufacturing drawings and specifications, know-how and quality control information.
(b) Independent Contractor agrees that all right, title, and interest in and to any and all Inventions which Independent Contractor or Consultant may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, in connection with the performance of Services hereunder shall be and are hereby assigned to Simpson Strong-Tie or its designee. Any Invention created under any SOW shall be the sole property of Simpson Strong-Tie, and Independent Contractor expressly disclaims any right or interest it may have in any Invention.
(c) Simpson Strong-Tie shall have the sole right to file patent applications related to any of the Inventions created pursuant to any SOW. Independent Contractor agrees to execute all documents and take all actions to vest title in Simpson Strong-Tie to effect the assignment of any Inventions. Independent Contractor agrees to reasonably assist Simpson Strong-Tie in its efforts to obtain patents or copyrights for any Inventions, including but not limited to: (1) providing, if requested, all data, plans, specifications, descriptions, documentation, and other information and (2) executing and requiring its employees or subcontractors to execute, if requested, all applications, oaths, assignments and all other instruments and papers which Simpson Strong-Tie shall deem necessary. Simpson Strong-Tie shall pay or reimburse Independent Contractor for any and all costs and expenses that Independent Contractor may incur in complying with this Section. Independent Contractor acknowledges and agrees that the decision whether or not to commercialize or market any Invention is within Simpson Strong-Tie’s sole discretion, subject to the terms and conditions of this Agreement.
9. Exclusivity. Simpson Strong-Tie shall have the exclusive right to make, use, sell, distribute and commercialize any Inventions, subject to the terms and conditions of this Agreement. For the avoidance of doubt, except as otherwise provided in this Agreement, neither Independent Contractor nor any of its Consultants or affiliates shall have any right or interest in any Invention. Independent Contractor acknowledges and agrees that the decision whether or not to commercialize or market any Inventions is within Simpson Strong-Tie’s sole discretion. Neither Independent Contractor nor any of its Consultants or affiliates shall disclose any of the Inventions to any Person other than Simpson Strong-Tie, nor shall Independent Contractor or any of its affiliates supply, sell, distribute or commercialize any product that incorporates or is based on any of the Inventions.
10. Representations and Warranties. Independent Contractor represents and warrants that: (i) Independent Contractor and its Consultants have the qualifications and skills necessary to perform the Services, and that all Services will be performed in a competent, professional manner, in accordance with any and all applicable Laws and the standards of care, skill and diligence observed by similar professionals performing such services; (ii) Independent Contractor has, and will have, full power and authority and legal right to enter into, and perform fully its obligations in, this Agreement (including granting the assignments and licenses set forth herein), and the execution and performance of this Agreement by Independent Contractor does not and will not violate the terms of any agreement to which Independent Contractor is a party, including any applicable employment agreements or any company policies or procedures of any current or former employer; (iii) Independent Contractor represents that it has Consultants with the qualifications and skills necessary to perform the Services, and that all Services will be performed in a competent, professional manner, in accordance with the standards of care, skill and diligence observed by similar professionals performing such Services; (iii) the Inventions shall be original creations; and (iv) none of the Inventions nor use of any Invention shall infringe or violate any confidentiality obligation or any other right of any Third Party.
11. Returning Simpson Strong-Tie Documents and Computer Files. Upon termination of this Agreement, Independent Contractor agrees to deliver to Simpson Strong-Tie (and not keep in Independent Contractor’s or Consultant’s possession, recreate, copy or deliver to anyone else) any and all computer files, software, e-mail messages, notes, memoranda, reports, records, data, spreadsheets, presentations, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, equipment, devices, and any other materials, documents or property, including any reproductions of all such items, belonging to, obtained by or prepared by Independent Contractor or Consultant during the Term of this Agreement or otherwise belonging to Simpson Strong-Tie, its successors or assigns.
12. Duty of Loyalty and Provision of Competing Services. During the Term of this Agreement, Independent Contractor agrees not to provide services to a competitor of Simpson Strong-Tie substantially similar to the Services provided to Simpson Strong-Tie hereunder without obtaining Simpson Strong-Tie’s prior written consent. During the Term of this Agreement, Independent Contractor further agrees that neither Independent Contractor nor any Consultant will solicit, induce, recruit or encourage directly or indirectly (nor will Independent Contractor or Consultant direct, encourage or assist anyone else to solicit, induce, recruit or encourage) any of Simpson Strong-Tie’s employees to terminate their employment with Simpson Strong-Tie or to work elsewhere.
13. Non-Interference with Simpson Strong-Tie’s Prospective Business Relationships. Independent Contractor understands that performing the Services set forth in each applicable SOW to this Agreement may require Independent Contractor or Consultant to contact directly or otherwise establish business relationships with Persons that are customers, vendors, business partners, employees, independent contractors or clients of Simpson Strong-Tie, and that Independent Contractor or Consultant may become aware of the identity of such Persons and of Simpson Strong-Tie’s Confidential Information related to such Persons. Independent Contractor, on behalf of itself and its Consultants, understands that Simpson Strong-Tie has made efforts to maintain the secrecy and confidentiality of such Confidential Information, which includes among other things, proprietary and confidential technical, marketing, sales and other business information about Simpson Strong-Tie’s customers, vendors, business partners, employees, independent contractors and clients. Independent Contractor understands and agrees that such Confidential Information provides Simpson Strong-Tie with a competitive advantage in establishing and maintaining existing and prospective business relationships and that disclosure or use of such Confidential Information would unfairly impair or interfere with Simpson Strong-Tie’s ability to conduct its business profitably and would result in irreparable harm to Simpson Strong-Tie. Without limiting the generality of Section 7, Independent Contractor agrees that during the Term of this Agreement and for a period of one year immediately following the termination of the Agreement for any reason, neither Independent Contractor nor Consultant will directly or indirectly use or disclose Confidential Information to solicit or divert, or attempt to solicit or divert, from Simpson Strong-Tie, any customers, vendors, business partners, employees, independent contractors or clients, nor will Independent Contractor or Consultant directly or indirectly interfere with or assist any other Person in interfering with the existing or prospective contracts, arrangements, or business relationships of Simpson Strong-Tie with its customers, vendors, business partners, employees, independent contractors and clients.
14. Insurance. Independent Contractor shall maintain the following minimum insurance coverage during the Term of this Agreement:
(a) Worker’s Compensation. Independent Contractor agrees to provide worker’s compensation insurance for its employees, subcontractors and agents, and agrees to hold harmless and indemnify Simpson Strong-Tie for any and all Claims arising out of any injury, disability, or death of any of Independent Contractor’s employees, subcontractors or agents.
(b) Liability Insurance. Independent Contractor agrees to maintain an insurance policy or policies, which have a limit of at least $1,000,000 per occurrence, which name Simpson Strong-Tie as an additional insured, and which provide the following coverages: employment practices liability; comprehensive general liability; professional liability (or similar form of errors and omissions liability); and automobile liability.
15. Indemnity. Independent Contractor agrees to indemnify, defend, and hold Simpson Strong-Tie and its Affiliates and each of their Representatives free and harmless from all Claims that Simpson Strong-Tie may incur or suffer as a result of or related to any willful misconduct, negligence, breach or failure to perform any of the representations, warranties or obligations contained in this Agreement by Independent Contractor or Consultant.
16. Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Independent Contractor without the prior written consent of Simpson Strong-Tie. Any attempted or purported assignment or delegation without such consent shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns.
17. Term of Agreement. This Agreement will become effective on the date stated above, and will continue in effect for a period of two (2) years (“Initial Term”), or until this Agreement is terminated as provided below. Notwithstanding the foregoing, this Agreement and shall automatically renew for successive periods of one (1) year each (each, a “Renewal Term”) unless either Party provides at least thirty (30) day’s written notice prior to the end of the then current term of its intent not to renew the Agreement.
18. Termination of Agreement.
(a) Termination on Notice. Notwithstanding any other provision of this Agreement, Simpson Strong-Tie may terminate this Agreement at any time and for any reason or for no reason by giving fifteen (15) days’ written notice to the Independent Contractor.
(b) Termination on Breach. Simpson Strong-Tie may terminate this Agreement, effective immediately, in the event that Independent Contractor breaches any of its obligations under this Agreement.
19. General Provisions.
(a) Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, when transmitted by facsimile, or three (3) days after mailing if mailed by registered or certified mail with postage and fees prepaid, addressed to the other Party at the address below, or at such other address as the other Party may designate.
To: Simpson Strong-Tie
Address: Simpson Strong-Tie Company Inc.
5956 West Las Positas Boulevard
Pleasanton, CA 94588
Attention: General Counsel
(b) Severability. The invalidity or unenforceability of any provision, word, phrase, clause, sentence, paragraph or section hereof shall in no way affect the validity or enforceability of any other provision, word, phrase, clause, sentence, paragraph or section hereof, and any such invalid or unenforceable provision that is overbroad in scope, duration or coverage, shall be deemed narrowed to the broadest term permitted by applicable law and shall be enforced as narrowed. If one or more of the provisions in this Agreement are deemed invalid or unenforceable, then the remaining provisions will continue in full force and effect.
(c) Entire Agreement. This Agreement is the entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior or contemporaneous negotiations, correspondence, discussions, understandings and agreements, whether written or oral, between the Parties with respect to the subject matter of this Agreement, including any other Confidentiality Agreements or Non-Disclosure Agreements, Independent Contractor Agreements or similar agreements that may have previously been executed by the Parties. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties. The waiver by either Party of a default under any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
(d) Governing Law and Forum Selection. This Agreement shall be construed and interpreted according to the laws of the State of California, excluding rules relating to choice or conflicts of law. The exclusive venue for any dispute arising out of or relating in any way to this Agreement shall be in San Francisco, California, and the Parties hereby irrevocably submit to the jurisdiction and venue of any state or federal court located in San Francisco, California.
(e) U.S. Export Laws and Regulations. Each Party hereby acknowledges that the rights and obligations of this Agreement are subject to the laws and regulations of the United States relating to the export of products and technical information. Each party shall comply with all such laws and regulations.
(f) Attorneys’ Fees. Should legal action arise concerning this Agreement, the prevailing Party shall be entitled to recover all reasonable attorneys’ fees and related costs, in addition to any other relief which may be awarded by any court or other tribunal of competent jurisdiction.
(g) Injunctive Relief. Independent Contractor acknowledges and agrees that Independent Contractor’s failure to perform any of Independent Contractor’s covenants in Sections 7, 12 and 13 would cause irreparable injury to Simpson Strong-Tie and cause damages to Simpson Strong-Tie that would be difficult or impossible to ascertain or quantify. Accordingly, without limiting any remedies that may be available with respect to any breach of this Agreement, Independent Contractor consents to the entry of an injunction to restrain any breach of Sections 7, 12 and 13, without any necessity to post any bond or provide any security in connection therewith.
(h) Survival. All agreements, representations, warranties and acknowledgments contained in Sections 1, 4, 6, 7, 8, 9, 10, 11, 13, 15, 16, 17, 18 and 19 shall survive any termination of this Agreement.
“Affiliate” of a specified Person means any Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the specified Person.
“Agreement” means the Agreement to which these Terms and Conditions for Independent Contractor Agreement are incorporated by reference, and any SOWs.
“Claims” means any claims, demands, actions, causes of action, prosecutions, suits, proceedings, damages, assessments, losses, liabilities, judgments, settlements, awards, fines, sanctions, taxes, levies, penalties, interest, charges, costs and expenses, including any reasonable attorney fees, expert witness fees, mediation fees, costs of investigation, arbitration fees, court costs and other fees and expenses related to any arbitration, litigation or other legal proceeding.
“Confidential Information” means the Work Product, and all information and materials that comprise, include, relate to, or are based on the Work Product, including without limitation any trade secrets, specifications, technical information, know-how, designs, discoveries, Improvements, analyses, databases, methods, processes, manufacturing information, research, development, testing, tooling, product performance information, quality control procedures and information, information and materials relating to products, services, features and enhancements now existing or under development or consideration, and all other proprietary and confidential information that may be conceived, originated, discovered, developed or reduced to practice by Independent Contractor or any Consultant on the basis of or using any of the foregoing; provided, however, that Confidential Information does not include information that the Independent Contractor can demonstrate by written records or other tangible evidence: (a) is now or hereafter becomes, through no act or failure to act on the part of either of Independent Contractor or any Consultant, generally known or widely available to the public (except that any compilation of otherwise public information in a form not publicly known shall nevertheless be treated as Confidential Information), or (b) is independently developed by Independent Contractor without in any way using, incorporating, referencing, recreating or relying upon any of the Confidential Information. Information and materials need not be labeled as “confidential” to qualify as Confidential Information.
“Consultants” means any employees or contractors employed or retained by Independent Contractor to perform Services.
“Control” (including the phrases “Controlled by” and “under common Control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Expenses” means any reasonable expenses associated with travel, lodging, meals, or other out-of-pocket expenses pre-approved in writing by Simpson Strong-Tie and supported by adequate documentation for costs incurred as a result of, and in the course of, performing the Services.
“Improvement” means any change, modification, improvement, derivation, revision, enhancement or invention of any kind.
“Inventions” means any Work Product, Confidential Information, products, inventions, ideas, prototypes, designs, creations, processes, concepts, discoveries, software, original works of authorship, developments and trade secrets, and any Improvements related to any of the foregoing, whether or not patentable or registrable under copyright or similar laws.
“Law” means any applicable common law, statute, code, regulation, rule, ordinance or judicial decision.
“Party” means Simpson Strong-Tie or Independent Contractor.
“Person” shall mean a natural person or a general partnership, limited partnership, limited liability partnership, limited liability company, corporation, organization, association, trust, estate or other entity, whether domestic or foreign.
“Representatives” means, with respect to a Party, such Party’s directors, officers, Affiliates, employees, agents, consultants and independent contractors; provided that, for purposes of this Agreement, neither Party shall be considered or deemed to be a Representative of the other Party or any of the other Party’s Affiliates.
“SOW” means any Statement of Work signed by both Parties.
“Services” means the services described in any SOW, as further defined by Simpson Strong-Tie from time-to-time during the Term of this Agreement.
“Simpson Strong-Tie” means Simpson Strong-Tie Company Inc.
“Term” means the Initial Term and any Renewal Term, unless earlier terminated pursuant to Section 18.
“Third Party” means any Person other than Simpson Strong-Tie and Independent Contractor.
“Work Product” means any information, data, materials, prototypes or other deliverables created in connection with the performance of Services.