INDEPENDENT CONTRACTOR AGREEMENT This Independent Contractor Agreement (this Agreement ), effective as of, 2017 (the Effective Date ), is by and between, a New York corporation having a principal place of business at (the Company ), and, an individual with a principal place of business at (the Contractor ). Company and Contractor shall hereinafter individually be referred to as a Party and collectively as the Parties. WHEREAS, Company desires to engage Contractor as an independent contractor to perform certain green infrastructure development and maintenance services (the Services ) on Company s behalf in connection with a certain contract by and between Company and (the Contract ) attached hereto as Exhibit A, subject to the terms, conditions, rights, restrictions and obligations of this Agreement, and Contractor desires to develop such engagement in accordance with the terms and conditions contained herein. NOW, THEREFORE, in consideration of the mutual promises and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Term. The term of this Agreement shall commence on the Effective Date and remain in effect for the duration of the Contract. This Agreement may be terminated by Company immediately upon termination of the Contract or at any time upon five (5) days written notice to Contractor. 2. Scope of Work. a. This Agreement is expressly limited to the performance of the Services which are set forth in Appendix A to the Contract. As a significant inducement to Company entering into this Agreement, any partial, interim, or final Services or written report shall be deemed a work for hire under 17 U.S.C. 101, and shall be the sole property of Company. After the termination of this Agreement, Contractor acknowledges and agrees that she shall have no rights or claim to the Services, written reports, or to any Company intellectual property. b. Company exclusively retains and shall have all intellectual property rights related to any (i) claims, causes of action, and enforcement rights of any kind, whether currently pending, filed, or otherwise, and whether known or unknown, under or arising from the Services and written reports, including all rights to pursue and collect damages, costs, injunctive relief, and other remedies for past, current, or future infringement or misappropriation, and (ii) royalties, income, and other payments due under or arising from the Services and written reports, effective immediately upon the inception, conception, creation or development thereof. - 1-
3. Consideration. As consideration for the Services rendered hereunder, Company shall pay to Contractor all monies received under the Contract within fifteen (15) days of Company s receipt of such payment. The nonpayment of monies by Company under this Agreement based upon the non-receipt of monies under the Contract for any reason shall not constitute a breach of this Agreement. Contractor shall be solely liable for the payment and deposit of all income and Self Employment Contribution Act taxes due on account of any monies paid under this Agreement. 4. Confidentiality. a. Definition. For purposes of this Agreement, Confidential Information means the terms of this Agreement and all non-public business information of Company and/or the Corporation (collectively, the Disclosing Party ) given to Contractor. Confidential Information shall include all non-public information relating to each Party s business that is disclosed to the other Party pursuant to this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that (i) is or becomes generally known to the public not as a result of a disclosure by Contractor, (ii) is rightfully in the possession of Contractor prior to disclosure by the Disclosing Party, or (iii) is received by Contractor in good faith and without restriction from a third party, not under a confidentiality obligation to the Disclosing Party and having the right to make such disclosure. b. Restrictions. Contractor acknowledges that it may be provided with and as a result of this Agreement, may come into contact, with Confidential Information of the Disclosing Party. Accordingly, Contractor agrees: (i) that it shall keep all Confidential Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure (but in no event shall Contractor use less than all diligent and good faith efforts to safeguard the confidentiality of Confidential Information); (ii) that it shall not, directly or indirectly, disclose any Confidential Information to anyone outside of the Disclosing Party, except with Company s prior written consent in each instance; (iii) that it shall not make use of any Confidential Information for its own purposes (except as necessary to fulfill its obligations under this Agreement) or for the benefit of anyone other than the Disclosing Party; and (iv) that (A) upon the expiration or termination of this Agreement; or (B) at any earlier time Company may so request, Contractor will deliver promptly to Company, or, at Company s option, Contractor shall destroy all memoranda, notes, records, reports, media and other documents and materials (and all copies thereof) regarding or including any Confidential Information that Contractor may then possess or have under its control, except for information stored solely in computer back-up form. Contractor further agrees that it shall comply with such policies and procedures relating to the storage, safeguarding, retention and destruction of customer or other data as may be communicated by the Disclosing Party from time to time. Contractor acknowledges that all Confidential Information disclosed hereunder shall be and remains the sole property of Company. The confidentiality restrictions contained herein shall survive indefinitely. -2-
c. Permitted Disclosures. Notwithstanding anything in this Agreement to the contrary, Contractor may disclose Confidential Information solely to its employees, agents and representatives who have a need to know such information in connection with fulfilling Contractor s obligations pursuant to this Agreement. Contractor also may disclose Confidential Information to the limited extent required by law; provided, however, that the Contractor notifies the Disclosing Party in writing in advance of such disclosure, and provides the Disclosing Party with copies of any related information so that the Disclosing Party may take appropriate action to protect the Confidential Information. 5. Indemnification. a. Contractor agrees to indemnify, hold harmless and defend Company, its officers, directors, employees and agents (each an Indemnified Party ) from and against any and all claims, actions, fees, expenses, costs, damages, losses and liabilities (including reasonable attorneys fees, expert witness fees, costs of court and other legal expenses) (hereafter taken together and referred to as Claims ) for: (i) a breach of this Agreement by Contractor (ii) any unauthorized disclosure of Confidential Information by Contractor, (iii) a Claim that the Services or any written report generated in connection therewith infringes upon the copyright, patent, trade secret or other intellectual or industrial property right of a third party, or (iv) the gross negligence or willful misconduct of Contractor. b. Company agrees to indemnify, hold harmless and defend Contractor from and against any and all Claims for: (i) a breach of this Agreement by COMPANY; or (ii) the gross negligence or willful misconduct of Company, its employees, agents or representatives. 6. Representations and Warranties. Each Party hereby represents and warrants to the other that it has the full and exclusive right and ability to enter into and perform it obligations pursuant to the terms of this Agreement, and that it shall comply with all applicable requirements of law, including, without limitation, import and export control and environmental and occupational safety requirements. 7. No Relationship. It is understood that Contractor and Company are independent contractors engaged in the operation of their own respective businesses. Neither Party is, or is to be considered as, the agent, representative, or employee of the other Party for any purposes whatsoever, and no agency, partnership, joint venture, or employeeemployer relationship is intended or created by this Agreement. Neither Party has authority to bind the other Party or assume any obligations for or on behalf of the other Party or to make any warranties or representations for or on behalf of the other Party. This Agreement does not create an exclusive relationship between the Parties. Contractor further agrees and acknowledges that Contractor will not be and shall not be deemed to be an employee of Company for any purpose whatsoever and will not be entitled to receive any benefits that employees of Company are entitled to receive, including, but not limited to: (i) inclusion in -3-
any Company -sponsored retirement and incentive bonus plans; (ii) sick pay; (iii) paid vacations; (iv) participation in any plan offering life, accident or health insurance; and (v) disability insurance, workers' compensation, and unemployment insurance. 8. Insurance. Contractor shall obtain and keep in force for the benefit of Contractor and Company general liability insurance with coverage of not less than Five Hundred Thousand Dollars ($500,000.00) per occurrence; One Million Dollars ($1,000,000.00) aggregate. Contractor shall provide Company with insurance certificates demonstrating that the above insurance is in place prior to undertaking the Services. All insurances certificates acquired under this Agreement must name Company as an additional insured, and must state that Company will be provided at least thirty (30) days advance, written notice of any cancellation or modification of the insurance. The insurance required must be primary coverage without right of contribution from any other insurance. 9. Miscellaneous a. Assignment. This Agreement, and the rights and obligations of Contractor hereunder, may not be assigned or delegated without the prior written consent of the Company. Any other attempt to assign this Agreement, or any rights or obligations hereunder, in contravention of this Agreement shall be null and void. b. Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of New York. Any dispute, action, or claim arising out of this Agreement shall be adjudicated in a court of competent jurisdiction located with Erie County, New York. c. Notices. All notices under this Agreement shall be given in writing and delivered by hand, or overnight delivery service (by a nationally recognized carrier) or sent by certified mail/return receipt requested, postage prepaid, addressed as follows: To COMPANY: With a Copy To: Attn: Attn: To Contractor: -4-
or such other address furnished in writing by either Party. Notices shall become effective upon receipt. d. Counterparts. This Agreement may be executed in any number of counterparts. It is not necessary that both Parties sign all or any one of the counterparts, but each Party must sign at least one counterpart for this Agreement to be effective. e. Amendment. This Agreement shall not be amended except by a writing executed by both Parties. f. Waiver. No waiver of any provision of this Agreement or any breach thereunder shall be deemed a waiver of any other provision or subsequent breach hereof, nor shall any such waiver constitute a continuing waiver. Delay or failure of either Party to insist on strict performance or observance of any provision of this Agreement or to exercise any rights or remedies hereunder, shall not be deemed a waiver. No Party may waive any of its rights or any obligation of the other Parties or any provision of this Agreement except by an instrument in writing signed by that Party. g. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties regarding the subject matter contained herein and supersedes all prior and contemporaneous undertakings and assignments of the Parties, whether written or oral, with respect to the subject matter herein. h. Severability. If any provision of this Agreement or the application of any such provision in any person or circumstance is held invalid, the remainder of this Assignment, and the application of such provision other than to the extent it is held invalid, shall not be invalidated or affected thereby. i. Headings and Defined Terms. The section headings used in this Agreement are for reference and convenience only, and shall not in any way limit or amplify the terms, conditions and provisions hereof. All capitalized terms, acronyms and/or abbreviations shall have the meanings ascribed to them by this Agreement. j. Compliance with Laws and Regulations. Each of the Parties represents and warrants that it shall comply with all applicable laws and regulations in the provision of this Agreement. k. No Third Party Beneficiaries. This Agreement is made and entered into solely for the benefit and protection of the Parties and their successors and permitted assigns, and no other party shall have any right or remedy under or by reason of this -5-
Agreement. l. Construction. Each and every provision of this Agreement has been mutually negotiated, prepared and drafted, and each Party has been represented by legal counsel or had the opportunity to be represented by legal counsel in connection with the construction of any provision hereof or deletions herefrom. [Signature Page Follows] -6-
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth above. Contractor: Company: By: Name: Title: [Signature Page to Independent Contractor Agreement] -7-
Exhibit A See attached. -8-