SERVICE PROVIDER AGREEMENT

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December 27, 2022

SERVICE PROVIDER AGREEMENT

 

         This SERVICE PROVIDER AGREEMENT (this “Agreement”) is made as of [MM/DD/YY] (“effective date”) between FastIO, Inc. doing business as Scope Creep (“Scope Creep”), a Delaware Corporation with its main place of business at 5100 W 36TH ST #16647, Minneapolis, MN 55416 (“Client”) and [NAME OF CONSULTANT] [OPTION 1: “an individual residing at [ADDRESS] or OPTION 2: “a [STATE OF INCORPORATION] limited liability company OR corporation with its main place of business at [ADDRESS] (“Consultant”).

 

WHEREAS, Client desires to obtain the services of the Consultant and the Consultant desires to provide services to Client on the terms and subject to the conditions set forth herein; and 

WHEREAS, both parties hereto recognize the critical importance to Client of preserving the confidentiality of Client’s trade secrets and confidential information of Client as well as Client’s business relationships; and 

WHEREAS, Consultant understands and acknowledges that the compensation Consultant will receive under this Agreement is good and sufficient consideration for the restrictive covenants contained in this Agreement.

  1. Services Performed by Consultant. Pursuant to the terms of this Agreement, Consultant shall provide to Client certain creative, development, consulting or other services.   The services so purchased by Client shall be described in one or more Client statements of work prepared and executed by the parties from time to time (each such statement of work shall be referred to as a “SOW”).  Consultant agrees to perform for Client those services more fully described in each such SOW (the services so performed shall be collectively referred to as the “Services”). The Client reserves sole authority to amend the terms in the SOW. 

 

  1. Consultant’s Payment. Consultant shall be compensated for the Services as forth in the applicable SOW.  Consultant shall be required to enter Consultant’s hours worked in Client’s timekeeping system in order to receive payment.

 

  1. Expenses. Consultant shall be responsible for all travel and other out-of-pocket expenses incurred while performing Services under this Agreement, unless otherwise set forth in the applicable SOW or agreed in writing by Client. 

 

  1. Invoices. Except as set forth in the applicable SOW, Consultant shall submit invoices for Services and expense reimbursement within ten (10) days of the end of each calendar month for which Services were rendered or expenses incurred.  Client shall pay the properly submitted invoices within thirty (30) days of receipt of such invoices. All transaction fees associated with the Services shall be the responsibility of Consultant. 

 

  1. Consultant an Independent Consultant. This Agreement calls for performance of services by Consultant as an independent contractor.  In this regard: 

 

  1. Consultant shall pay and withhold any and all payroll or income taxes of any nature imposed upon the fees paid to Consultant hereunder as a result of this Agreement. Consultant shall be solely responsible for reporting income to any required jurisdictions and to pay all required taxes.  

 

  1. Neither Consultant nor Consultant’s staff is, or shall be deemed, Client’s employees. Consultant shall obtain workers’ compensation insurance if required by law, and shall keep such records, pay such other taxes or governmental fees, comply with applicable law and maintain such licenses as are required to perform the duties required of Consultant as anticipated by this Agreement.  Client shall not provide any insurance coverage of any kind for Consultant or Consultant’s staff.

 

  1. Client is relying on Consultant’s expertise in determining how to achieve the results requested by Client.  Consultant has the sole right to control and direct the means, manner and method by which the Services required by this Agreement will be performed. Further, the parties agreement that Client has not provided Consultant with any training with respect to the duties of Consultant pursuant to this Agreement.  Consultant shall have the right to perform services for others during the term of this Agreement. 

 

  1. Consultant shall not be entitled to any benefits provided to employees of Client including, without limitation, health insurance benefits, retirement benefits, or other benefits.  In addition, except as expressly provided herein, Consultant shall be responsible for any expenses incurred to perform Consultant’s duties under this Agreement. 

 

  1. Confidential Information.  Consultant agrees to be bound by the terms of the Mutual Non-Disclosure Agreement. Accordingly, Consultant understands and acknowledges that during the course of Consultant’s performance of work for the Client, Consultant will have access to and learn about confidential, secret and proprietary documents, materials and other information in tangible and intangible form, of and relating to the Client and its businesses (“Confidential Information”).  The Consultant understands and acknowledges that this Confidential Information and the Client’s ability to reserve it for the exclusive knowledge and use of the Client is of great competitive importance and commercial value to the Client and that improper use or disclosure of the Confidential Information by the Client might cause the Client to incur financial costs, loss of business advantage, liability under confidentiality agreements with third parties, civil damages and criminal penalties.  

 

For purposes of this Agreement, Confidential Information includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, including drawings or observation of parts or equipment, relating directly or indirectly to: research, product plans, products, services, customer lists and customers, business associates, contracting parties and referral sources, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed to Consultant by the Client.  Notwithstanding the foregoing, Confidential Information shall not include information that Consultant can prove: (i) was in the public domain prior to disclosure to Consultant or later publicly made available through no fault of Consultant’s own; (ii) was known to Consultant prior to receipt of such information from or through the Client; or (iii) was rightfully obtained by Consultant from sources other than the Client.

 

  1. Restrictions On Use And Disclosure Of Confidential Information.  To protect the confidentiality of this Confidential Information, without prejudice to all the other duties which Consultant has to Client, Consultant agrees to keep secret all Confidential Information given, seen or heard of in connection with the business of Client and its customers, and further agrees:
  1. Only to use the Confidential Information in the course of and exclusively for the purposes of Client business.  This obligation of confidentiality will survive termination of Consultant’s business relationship with Client.

 

  1. Not, either during Consultant’s performance of work for Client or at any time after, otherwise than in the proper course of duties for Client, to make available or divulge Confidential Information to any person, firm or Client, and to use best endeavors to prevent the unauthorized publication or disclosure of any Confidential Information whatsoever which is gained during Consultant’s performance of work for Client.

 

Defend Trade Secrets Act Notice of Immunities.  Notwithstanding any language in this Agreement to the contrary, Consultant shall not be held criminally or civilly liable under any Federal or State trade secret law for disclosure of a trade secret that is made: 1) in confidence to a Federal, State or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; or 2) in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal; or 3) to Consultant’s attorney if Consultant files a lawsuit for retaliation for reporting a suspected violation of the law, or made in such court proceeding, if Consultant files any documents containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.  Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed under the aforementioned statute.

 

  1. Work Product.   Consultant acknowledges and agrees that all writings, works of authorship, technology, inventions, discoveries, ideas and other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by Consultant individually or jointly with others during the performance of Consultant’s work for the Client and relating in any way to the business or contemplated business, research or development of the Client (regardless of when or where the Work Product is prepared or whose equipment or other resources are used in preparing the same) and all printed, physical, and electronic copies, all improvements, rights, and claims related to the foregoing, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), patents, and other intellectual property rights therein arising in any jurisdiction throughout the world, including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, reissues, extensions, and renewals thereof (collectively, “Intellectual Property Rights”) shall be the sole and exclusive property of the Client.

 

For purposes of this Agreement, “Work Product” includes, but is not limited to, all discoveries, inventions (patentable or unpatentable), ideas, works of authorship, brands, brand ideas, improvements, processes, developments, designs, know how, data, computer programs and formulae, whether patentable or unpatentable, or protectable by copyright or other intellectual property law. 

 

By Consultant’s execution of this Agreement, Consultant represents that, to the best of Consultant’s knowledge, that Consultant has not, alone or jointly with others, made prior to Consultant’s performance of work for the Client any Work Product that Consultant considers to be Consultant’s property or the property of third parties and that Consultant wishes to exclude from the scope of this Agreement.  If, during Consultant’s performance of work for the Client, Consultant incorporates any prior Work Product into a Client product or process, the Client is hereby granted a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicenses) to make, have made, modify, use and sell such Work Product.  

 

  1. Work Made for Hire; Assignment.  Consultant acknowledges that, by reason of performing work for the Client, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in the Copyright Act of 1976 (17 U.S.C. §101), and such copyrights are therefore owned by the Client.  To the extent that the foregoing doesn’t apply, Consultant hereby irrevocably assigns to the Client, for no additional consideration, the Consultant’s entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world.  Nothing contained in this Agreement shall be construed to reduce or limit the Client’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than the Client would have had in the absence of this Agreement. 

 

  1. Execution of Necessary Documents. During and after Consultant’s performance of work for the Client, Consultant agrees to reasonably cooperate with the Client to (i) apply for, obtain, perfect and transfer to the Client the Work Product and Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (ii) maintain, protect and enforce the same, including, without limitation, executing and delivering to the Client any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Client.  Consultant hereby irrevocably grants Client a power of attorney to execute and deliver any such documents on Consultant’s behalf in Consultant’s name and to do all other lawfully permitted acts to transfer any Client inventions to Client and further the transfer, issuance, prosecution and maintenance of all rights therein, to the full extent permitted by law, if the Consultant does not promptly cooperate with Client’s request (without limiting the rights Client shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be effected by the Consultant’s subsequent incapacity.

 

  1. Term of Agreement. This Agreement will become effective on the date indicated in the introductory paragraph of this Agreement and will remain in effect for one year (“the Initial Term”) (pursuant to the applicable SOW), unless terminated at an earlier date as set forth in Section 12 below. Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive one (1) year terms unless either Party provides written notice of nonrenewal at least sixty (60) days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). If the Term is renewed for one or more Renewal Terms, the terms and conditions of this Agreement during each Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal. If either Party provides timely notice of nonrenewal, then this Agreement shall terminate on the expiration of the then-current Term, unless sooner terminated as provided in this Section 12. 

 

  1. Termination of Agreement. Each party has the right to terminate this Agreement if the other party has materially breached any obligation herein and such breach remains uncured for a period of ten (10) days after a notice in writing thereof is sent to the other party.  If at any time after commencement of the services required by this Agreement, Client shall, in its sole judgment, determine that the Services are inadequate, unsatisfactory, no longer needed or substantially not conforming to the descriptions, warranties or representations contained in this Agreement, Client may terminate this Agreement upon ten (10) days’ written notice to Consultant.   Termination of this Agreement shall not relieve Client from the obligation to pay or otherwise compensate Consultant for those Services provided by Consultant and accepted by Client prior to receipt of the notice of termination.  The Sections of this Agreement which by their own terms shall survive the termination of this Agreement, including but not limited to Sections 5-10 and 13-24.

 

  1. Return of Materials. Upon termination of this Agreement, or Client’s request, Consultant shall promptly return to Client all Confidential Information, computer hardware and software, data, materials and other property of the Client held by Consultant.

 

  1. Fit for Purpose. The Consultant shall offer the Services at a standard that is consistent with Applicable Law, in accordance with relevant Industry Practices, fit for purpose and complete in every detail, and free of defects, deficiencies, errors, or omissions.

 

  1. 15. Quality Assurance. The Client shall conduct a program of quality assurance and services review to ensure the Services offered by Consultant meets all requirements of applicable law(s) and regulation(s). The Consultant agrees to cooperate fully with all monitoring or other programs that may be established by the Client to promote high standards of the Services.

 

  1. Warranties and Representations. Consultant warrants and represents that: (a) the Services shall be performed in accordance with description set forth in SOW; (b) that the Work Product will operate in accordance with and will conform with the description of such Work Product found in SOW; (c) the Services or Work Product shall not: (i) infringe upon or constitute a misuse of any copyright, patent, trade secret or other proprietary rights; or (ii) violate the rights of privacy and publicity of any former client, employer or third party; (d) Consultant has the authority to enter into this Agreement and to perform all obligations hereunder, including, but not limited to, the grant of rights and licenses to the Work Product and all proprietary rights therein or based thereon; (e) Consultant has not granted any rights or licenses to any intellectual property or technology that would conflict with Consultant’s obligations under this Agreement; and (f) the Work Product, unless otherwise set forth in SOW, does not include any Open Source Materials (“Open Source Materials” means materials subject to any license that requires as a condition of use, modification, and/or distribution thereof, that such materials, or materials combined and/or distributed with such materials, be (i) disclosed or distributed in source code or similar form, (ii) licensed for the purpose of making derivative works, or (ii) redistributable at no charge; this includes materials subject to the GNU General Public License, the GNU Lesser General Public License, an Apache License, a Mozilla Public License, or similar licenses).

 

  1. Limitation of Liability. Notwithstanding anything contrary contained in this Agreement, in any event, Client and its affiliates shall not be liable (whether in contract, warranty, tort (including, but not limited to, negligence), or other theory), to the Consultant or any other person or entity for cost of cover or for any indirect, incidental, special, consequential, punitive or exemplary damages (including damages for loss of revenues, loss profit or anticipated profits, loss of goodwill, loss of business or data) arising out of or in relation this agreement. The Client’s entire liability to the client under this Agreement or any applicable law or equity shall be limited solely to actual and proven direct damages sustained by the Consultant as a result of the gross negligence or willful misconduct of Client and its Affiliate and their respective directors, officers, employees and agents in the performance of their respective services and other obligations under this Agreement. 

 

  1. Indemnification. Consultant hereby agrees that Consultant shall indemnify, defend and hold the Client harmless from any and all liability, obligation, loss, damage, injury, penalty, action, judgment, suit, claim, cost, expense or disbursement of any kind and nature which may be imposed on, incurred by or served against the Client by any person or entity relating to, arising out of, or in connection with, the existence and/or performance of this Agreement, or any alleged act or neglect of Consultant arising out of or in connection with the Client or this Agreement including, but not limited to, Consultant’s breach of any of Consultant’s representations and warranties in this Agreement, claims for violation of confidentiality agreements, tortious interference with contract, unfair competition, misappropriation of rights, or any other claim.  Consultant agrees to provide the Client with immediate notification of any claim received which names, or in any way involves, the Client.  Nothing in this Section shall affect the Consultant’s status as an independent contractor.  Further, nothing in this Section shall affect the limitations of Consultant’s authority as defined elsewhere in this Agreement.

 

  1. Insurance. Consultant shall carry the following minimum insurance coverages in a form acceptable to Client at all times while this Agreement is in effect: (i) Comprehensive Liability Insurance with coverage limits of at least $1,000,000 per occurrence for any and all injury, death or property damage, (ii) workers’ compensation insurance; and (iii) errors and omissions with coverage limits of at least $1,000,000.  On an annual basis, Consultant shall provide Client with a copy of the applicable insurance binder or declarations page for each such policy.  Neither the existence of nor the assent of Client to the types of limits of insurance carried by Consultant shall be deemed a waiver or release of responsibility under this Agreement. 

 

  1. Non-Competition; Non-Solicitation. During the term of this Agreement and for one year from the latter of the date of the termination of this Agreement or the date that Consultant completes the work in an SOW, Consultant will not, directly or indirectly, on their own behalf or in the service or on behalf of others, engage in activities that compete with Client by soliciting, serving, contracting or otherwise engaging for a competing purpose any customer or client who had a business relationship with Client, or cause or attempt to cause any existing or prospective customer or client who had a business relationship with Client during the term of this Agreement to divert, terminate, limit or in any manner modify, or fail to continue or enter into any actual or potential business relationship with Client. During the term of this Agreement and for one year from the latter of the date of the termination of this Agreement or the date that Consultant complex the work in an SOW, Consultant shall not make an solicitation to employ Client’s personnel without written consent of Client to be given or withheld in Client’s sole discretion. 

 

  1. Information Security. Consultant shall comply with Client’s information security policies and procedures to protect the confidentiality, integrity, and availability of Client’s information assets and to ensure the consistency, quality, safety, and efficiency of Client’s products, services, and systems. Client’s information security policies focus on information security systems for Client’s employees, contractors, customers, and vendors. All complete information security policies and procedures can be found in Google Drive under Global People & IT Operations > Information Security Policies & Procedures. Any violation of Client’s information security policies and procedures may result in disciplinary action or other sanctions, up to and including termination, in accordance with applicable law.  

 

  1. Background Checks. For security purposes, Client may seek background information about Consultant from a consumer reporting agency. This information may be in the form of both consumer reports and investigative consumer reports. These reports may be obtained at any time after Client receives authorization from Consultant, including any time during the period of Consultant’s independent contractor relationship with Client. Consultant acknowledges that it has received and read this paragraph and Consultant certifies that it understands this paragraph. Consultant hereby authorizes Client or its authorized agents to obtain or prepare consumer reports and investigative consumer reports at any time after it receives this authorization. Consultant hereby authorizes law enforcement agencies, public and private schools, federal, state, and local agencies and courts, credit bureaus, information bureaus, current and former employers, financial institutions, licensing agencies, governmental agencies, the military, and other individuals and entities to provide any and all information that is requested by Client or a reporting agency.

 

  1. Equitable Remedies.  Consultant acknowledges and agrees that breach of any of the obligations set forth in this Agreement shall cause irreparable injury to Client and shall entitle Client to equitable relief or remedy.  The pursuit or securing of any such equitable relief shall not prohibit or limit Client’s right to seek or obtain any other remedy provided under this Agreement or by law.  If any or all of the above covenants or agreements are held to be unenforceable because of the scope or duration of such covenant or agreement or the area covered thereby, the parties agree that the court making such determination shall have power to reduce the scope, duration and area of such covenant or agreement to the extent that allows the maximum scope, duration and area permitted by applicable law.  

 

  1. General Provisions.  This Agreement, the SOW, and the Mutual Non-Disclosure Agreement, is the sole and entire agreement between the parties relating to the subject matter hereof, and supersedes all prior understandings, agreements and documentation relating to such subject matter. Any modifications to this Agreement must be in writing and signed by both parties.  If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full force without being impaired or invalidated in any way.  This Agreement shall be interpreted and enforced pursuant to the laws of the State of Minnesota.  Any disputes arising out of or regarding this Agreement shall be venued in the state or federal courts located in Minneapolis or Saint Paul, Minnesota.   If an action is instituted in any court involving this Agreement, and providing Client shall prevail in the action, Consultant agrees to pay all Client’s costs, expenses and fees in the action or appeal, including, without limitation, Client’s attorneys’ fees.  All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, or five days after being deposited in the United States mails. This Agreement is not assignable by Consultant without the prior written consent of the Client.  This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same document.  Facsimile and electronic (i.e. pdf) copies shall be deemed original in all cases.  

 

[signature pages follow]

 

FastIO, Inc. DBA Scope Creep                               [CONSULTANT NAME]

 

 

By: ___________________________                    By:  ______________________________

                     (Signature)                                                             (Signature)

 

______________________________                    _________________________________

        (Typed or Printed Name)                                 (Typed or Printed Name)

 

Title: _________________________                   Title: _____________________________

 

Date Signed: ____________________                    Date Signed:  ______________________

 

 

 

STATEMENT OF WORK NO. 1 to the INDEPENDENT CONTRACTOR AGREEMENT between Scope Creep. AND [NAME OF CONTRACTOR]

 

 

FUNCTIONAL DESCRIPTION OF SERVICES

 

 

 

 

TECHNICAL OR OPERATIONAL SPECIFICATIONS RELATED TO THE SERVICES

 

 

 

 

DELIVERABLES

 

 

 

MILESTONES

 

 

 

SCHEDULE OF SERVICES

 

Consultant will provide services beginning on or about DATE and continuing on an

as needed basis. Unless otherwise agreed upon by Client, Services performed during the term

of this Agreement shall not exceed forty (40) billable hours per week.

 

 

COMPENSATION FOR SERVICES:  $[PAYMENT RATE] per [SPECIFY “hour,” “day,” “week” or “month”] for the Services. Unless otherwise agreed upon in writing by Client, Client’s maximum liability for payment of the Services performed by Consultant during the term of this Agreement shall not exceed $[MAXIMUM AMOUNT].  

 

EXPENSES COVERED

Client will only reimburse Consultant for pre-approved expenses.  Approval will be granted or withheld according to Client’s sole discretion. 

 

[signature pages follow]

 

This SOW shall be subject to the terms and conditions of the INDEPENDENT CONTRACTOR AGREEMENT between Scope Creep. AND [NAME OF CONSULTANT]

 

FastIO, Inc. DBA Scope Creep                         [CONSULTANT NAME HERE]

 

 

By: ___________________________                    By:  ______________________________

(Signature)                                                (Signature)

 

______________________________                    _________________________________

(Typed or Printed Name)                             (Typed or Printed Name)

 

Title: _________________________                   Title: _____________________________

 

Date Signed: ____________________                    Date Signed:  ______________________

 

 

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