Consulting Contract Terms

Effective December 31, 2018


1. Parties

Client and Consultant identified on the Site under the Consulting Contract are the parties to the Services Contract. Otechie is not a party to the Consulting Contract.


2. Services

Client and Consultant agree that the Consultant is performing services as an independent contractor and that Consultant is not an employee or agent of Client. Consultant will perform the Consulting Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Consulting Services will be determined and controlled solely by Consultant, which is engaged by Client as an independent contractor.

The terms concerning the services to be performed under the Consulting Contract described on the Site form part of the Consulting Contract. Users agree that, once accepted, the terms of the Consulting Contract cannot be modified by a User without obtaining the consent of the other before making changes to the Service Contract, including by adding additional or different milestones, by closing a Consulting Contract, or making other changes to the Consulting Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Consulting Contract or accept such changes by continuing to work on the Consulting Contract.


3. Responsibility For Employees and Subcontractors

If a User subcontracts with or employs third parties to perform Consulting Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. Further, at all times a User that agreed to perform services under a Services Contract remains responsible for the quality of the services.


4. Client Payments and Billing

Consultants agrees to accurately report hourly invoices by billing hours worked under the Account of the User that worked the hours.


5. Termination of Consulting Contract

Under Hourly Contracts, either Client or Consultant has the right to terminate the Consulting Contract after providing any agreed-upon notice, or immediately on the end date specified in the Consulting Contract terms and/or upon completion of the Consulting Services, in the event of a material breach, or with the consent of the other party. Except as required by law or as otherwise may be agreed to by the Parties, Client remains obligated to pay the Consultant Fees for any Consulting Services provided prior to termination of the Hourly Contract.

Under Fixed-Price Contracts, once a Client’s Payment Method has been charged to fund the Engagement, absent a full refund to Client by Consultant, the Consulting Contract does not terminate until the Consulting Services are completed. However, either Client or Consultant has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated, Client does not have the right to recover any payments already released to Consultant from the escrow account for the Engagement.


6. Intellectual Property Rights

6.1 Third-Party Rights

Consultant represents and warrants that Consultant will not incorporate or use the materials of any third party including those of any other client or any employer, in performing the Consulting Services that are not generally available for use by the public or have not been legally transferred to the the Client.

6.2 Background Technology

Consultant will disclose in the Engagement terms any Background Technology which Consultant proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Consultant discloses no Background Technology, Consultant warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Consultant will separately provide, with each delivery of Work Product to Client, a bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Consultant, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement terms, Consultant agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.

6.3 Client Materials

Client grants Consultant a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Consulting Services under the applicable Consulting Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Consulting Contract, or upon Client’s written request, Consultant will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Consulting Contract) contained in or on Consultant’s premises, systems, or any other equipment or location otherwise under Consultant’s control. Within ten days of such request from Client, Consultant agrees to provide written certification to Client that Consultant has returned or destroyed all Client Materials and Work Product as provided in this subsection.

6.5 Ownership of Work Product and Intellectual Property

Upon Consultant’s receipt of full payment from Client, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Consultant has any Intellectual Property Rights to the Work Product that are not owned by Client upon Consultant’s receipt of payment from Client, Consultant hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Consultant retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Consultant hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.

6.5 License to Background Technology

Upon Consultant’s receipt of full payment from Client for delivery of Work Product, Consultant hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the license described herein applies only to the portion of Work Product delivered and paid for.

6.6 License to or Waiver of Other Rights

If Consultant has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Consultant, Consultant hereby automatically, upon Consultant’s receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Consultant, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Consultant has any rights to such Work Product that cannot be assigned or licensed, Consultant hereby automatically, upon Consultant’s receipt of payment from Client, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.

6.7 Assistance

Consultant will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Consulting Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Consultant’s signature on any document needed in connection with the foregoing, Consultant hereby designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Consultant.


7. Confidential Information

7.1 Confidentiality

To the extent a Client or Consultant provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Consulting Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Consultant); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Consulting Services.

7.2 Return

If and when Confidential Information is no longer needed for the performance of the Consulting Services for a Services Contract or at Client’s or Consultant’s written request (which may be made at any time at Client’s or Consultant’s sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.

7.3 Publication

Without limiting Section 7 (Confidentiality), Client and Consultant will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Consulting Services for a Services Contract.

7.4 Immunity

A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. Sec. 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.


8. Definitions

The following capitalized terms have the following meanings:

"Background Technology" means all Inventions developed by Consultant other than in the course of providing Consulting Services to Client under the Consulting Contract and all Inventions that Consultant incorporates into Work Product.

"Client" means any person who entered into a Consulting Contract to obtain Consulting Services from a Consultant.

"Client Deliverables" means requests, intellectual property, and any other information or materials that a Consultant receives from a Client to perform Consulting Services.

"Client Materials" means requests, intellectual property, and any other information or materials that Client provides to Consultant for Consultant to perform Consulting Services.

"Confidential Information" means Client Deliverables, Consultant Deliverables, Work Product, and any other information provided to, or created by, a User for a Consulting Contract or to perform or assist in performing Consulting Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Consultant or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.

"Engagement" means an engagement for Consulting Services that a Consultant provides to a Client under a Consulting Contract on the Site.

"Fixed-Price Contract" means a Consulting Contract for which Client is charged a fixed fee agreed between a Client and a Consultant, prior to the commencement of a Consulting Contract, for the completion of all Consulting Services contracted by Client for such Consulting Contract.

"Consultant" means any person who entered into a Consulting Contract to perform Consulting Services for a Client.

"Consultant Deliverables" means requests, intellectual property, and any other information or materials that a Client receives from a Consultant for a particular Consulting Contract.

"Consulting Services" means all services performed for or delivered to Clients by Consultants.

"Hourly Contract" means a Consulting Contract for which Client is charged based on the hourly rate set by the Consultant.

"Hourly Invoice" means the report of hours recorded for a stated period by a Consultant for the Consultant Services performed for a Client.

"Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

"Invention" means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.

"Consulting Contract" means, as applicable, (a) the contractual provisions between a Client and a Consultant governing the Consulting Services to be performed by a Consultant for Client for an Engagement.

"Work Product" means any tangible or intangible results or deliverables that Consultant agrees to create for, or actually delivers to, Client as a result of performing the Consulting Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.