KETOS Contractor Terms
KETOS, INC. CONTRACTOR TERMS
LAST UPDATED: OCTOBER 1, 2022
These Contractor Terms (the “Terms”) govern any and all Contractor engagements entered into between KETOS, Inc. (“KETOS”) and the Contractor named in the applicable project assignment agreement issued by KETOS (“Independent Contractor Agreement”).
- Independent Contractor Agreement. Each Independent Contractor Agreement will set forth a description of the services Contractor will perform (“Services”), milestones, specifications, acceptance criteria, the expected completion date of the Services, Contractor’s compensation (“Fee”), and any other information deemed relevant to the project by KETOS.
- Engagement of Services. Contractor will provide the Services ( “Services”) either to KETOS or to KETOS’ customer (“Customer”) as indicated in the Independent Contractor Agreement. Except as otherwise provided in the applicable Project Agreement, Contractor will have exclusive control over the manner and means of performing the Services, including the choice of place and time. Contractor will provide, at Contractor’s own expense, a place of work and all equipment, tools and other materials necessary to complete the Services; however, to the extent necessary to facilitate performance of the Services, KETOS may, in its discretion, make its equipment or facilities available to Contractor at Contractor’s request. While on KETOS’ or Customer’s premises, Contractor agrees to comply with all then-current access rules and procedures, as applicable, including those related to safety, security and confidentiality. Contractor agrees and acknowledges that Contractor has no expectation of privacy with respect to KETOS’ and/or Customer’s telecommunications, networking or information processing systems (including stored computer files, email messages and voice messages) and that Contractor’s activities, including the sending or receiving of any files or messages, on or using those systems may be monitored, and the contents of such files and messages may be reviewed and disclosed, at any time, without notice.
- Compensation. KETOS will pay Contractor the Fee as Contractor’s sole compensation for Services. Contractor will be reimbursed only for expenses that are expressly set forth in a Project Agreement or that have been approved in advance in writing by KETOS, provided Contractor has furnished such documentation for authorized expenses as KETOS may reasonably request. Upon termination of a Independent Contractor Agreement for any reason, Contractor will be paid the Fee on the basis stated in the Project Agreement(s) for work which has been completed. Unless otherwise provided in a Project Agreement, payment to Contractor of undisputed fees will be due 30 days following KETOS’s receipt of an invoice that contains accurate records of the Services performed sufficient to document the invoiced Fee and/or expenses.
- Ownership of Work Product. Contractor agrees that any and all Work Product (as defined below) shall be the sole and exclusive property of KETOS. Contractor hereby irrevocably assigns to KETOS all right, title and interest worldwide in and to any deliverables specified in a Project Agreement (“Deliverables”), and to any ideas, concepts, processes, discoveries, developments, formulae, information, materials, improvements, designs, artwork, content, software programs, other copyrightable works, and any other work product created, conceived or developed by Contractor (whether alone or jointly with others) for KETOS or a Customer during or before the term of the applicable Project Agreement, including all copyrights, patents, trademarks, trade secrets, and other intellectual property rights therein (the “Work Product”). Contractor retains no rights to use the Deliverables or Work Product and agrees not to challenge the validity of KETOS’ ownership of the Deliverables or Work Product. Contractor agrees to execute, at KETOS’s request and expense, all documents and other instruments necessary or desirable to confirm such assignment, including without limitation, an Assignment of Copyright and an Assignment of Patent Application, as necessary, which will be provided to Contractor by KETOS when necessary. Contractor will deliver any Deliverables in accordance with the applicable Project Agreement and disclose promptly in writing to KETOS all other Work Product.
- Other Rights. If Contractor has any rights, including without limitation “artist’s rights” or “moral rights,” in the Work Product that cannot be assigned, Contractor hereby unconditionally and irrevocably grants to KETOS an exclusive (even as to Contractor), worldwide, fully paid and royalty-free, irrevocable, perpetual license, with rights to sublicense through multiple tiers of sublicensees, to use, reproduce, distribute, create derivative works of, publicly perform and publicly display the Work Product in any medium or format, whether now known or later developed. In the event that Contractor has any rights in the Work Product that cannot be assigned or licensed, Contractor unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against KETOS or Customers.
- License to Preexisting IP. Contractor agrees not to use or incorporate into Work Product any intellectual property developed by any third party or by Contractor other than in the course of performing Services for KETOS (“Preexisting IP”). In the event Contractor uses or incorporates Preexisting IP into Work Product, Contractor hereby grants to KETOS a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with the right to sublicense through multiple levels of sublicensees, to use, reproduce, distribute, create derivative works of, publicly perform and publicly display in any medium or format, whether now known or later developed, such Preexisting IP incorporated or used in Work Product. However, in no event will Contractor incorporate into the Work Product any software code licensed under the GNU GPL or LGPL or any similar “open source” license. Contractor represents and warrants that Contractor has an unqualified right to license to KETOS all Preexisting IP as provided in this section.
- Representations and Warranties. Contractor represents and warrants that: (a) the Services shall be performed in a professional manner and in accordance with the industry standards and the Work Product shall comply with the requirements set forth in the applicable Project Agreement, (b) Work Product will be an original work of Contractor, (c) Contractor has the right and unrestricted ability to assign the ownership of Work Product to KETOS as set forth in Section 4 (including without limitation the right to assign the ownership of any Work Product created by Contractor’s employees or contractors), (d) neither the Work Product nor any element thereof will infringe upon or misappropriate any copyright, patent, trademark, trade secret, right of publicity or privacy, or any other proprietary right of any person, whether contractual, statutory or common law, (e) Contractor has an unqualified right to grant to KETOS the license to Preexisting IP set forth in Section 6, and (f) Contractor will comply with all applicable federal, state, local and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability, and other contributions. Contractor agrees to indemnify and hold KETOS harmless from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys’ fees) arising from or relating to the breach or alleged breach by Contractor of the representations and warranties set forth in this Section 7.
- Independent Contractor Relationship. Contractor’s relationship with KETOS is that of an independent contractor, and nothing in these Terms is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between KETOS and any of Contractor’s employees or agents. Contractor is not authorized to make any representation, contract or commitment on behalf of KETOS. Contractor (if Contractor is an individual) and Contractor’s employees will not be entitled to any of the benefits KETOS may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Because Contractor is an independent contractor, KETOS will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on behalf of Contractor. Contractor is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of Services and receipt of Fees under these Terms. Contractor is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing Services. No part of Contractor’s compensation will be subject to withholding by KETOS for the payment of any social security, federal, state or any other employee payroll taxes. If applicable, KETOS will regularly report amounts paid to Contractor by filing form 1099-MISC with the Internal Revenue Service as required by law. If, notwithstanding the foregoing, Contractor is reclassified as an employee of KETOS, or any affiliate of KETOS, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal or state or foreign agency as the result of any administrative or judicial proceeding, Contractor agrees that Contractor will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by KETOS.
- Confidential Information. Contractor agrees that during the term of any Independent Contractor Agreement and thereafter it will not use or permit the use of KETOS’s Confidential Information in any manner or for any purpose not expressly set forth in the Independent Contractor Agreement(s), will hold such Confidential Information in confidence and protect it from unauthorized use and disclosure, and will not disclose such Confidential Information to any third parties except as set forth in Section 10 below. “Confidential Information” shall mean all information disclosed by KETOS to Contractor, whether during or before the term of the Project Agreement, that is not generally known in KETOS’s trade or industry and shall include, without limitation: (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of KETOS or its subsidiaries or affiliates; (b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; (d) existence of any business discussions, negotiations or agreements between the parties; and (e) any information regarding the skills and compensation of employees, contractors or other agents of KETOS or its subsidiaries or affiliates. Confidential Information also includes proprietary or confidential information of any third party, including a Customer, who may disclose such information to Contractor in the course of providing Services. Confidential Information does not include information that (x) is or becomes a part of the public domain through no act or omission of Contractor, (y) is disclosed to Contractor by a third party without restrictions on disclosure, or (z) was in Contractor’s lawful possession prior to the disclosure and was not obtained by Contractor either directly or indirectly from KETOS or a Customer. In addition, this section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that Contractor shall first have given notice to KETOS and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. All Confidential Information furnished to Contractor by KETOS is the sole and exclusive property of KETOS or its suppliers or customers. Upon request by KETOS, Contractor agrees to promptly deliver to KETOS the original and any copies of the Confidential Information. Notwithstanding the foregoing nondisclosure obligations, pursuant to 18 U.S.C. Section 1833(b), Contractor shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and 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.
- Contractor’s Employees, Contractors and Agents. Contractor will ensure that each of its employees, Contractors and agents who will have access to any Confidential Information or perform any Services has entered into a binding written agreement that is expressly for the benefit of KETOS and Customers and protects KETOS’ and Customers’ rights and interests to at least the same degree as Section 9. KETOS reserves the right to refuse or limit Contractor’s use of any employee, Contractor or agent or to require Contractor to remove any employee, Contractor or agent already engaged in the performance of the Services. KETOS’s exercise of such right will in no way limit Contractor’s obligations under the Independent Contractor Agreement and these Terms.
- No Conflict of Interest. During the term of any Independent Contractor Agreement, Contractor will not accept work, enter into a contract, or accept an obligation from any third party, inconsistent or incompatible with Contractor’s obligations, or the scope of Services rendered thereunder. Contractor warrants that there is no other contract or duty on its part inconsistent with these Terms. Contractor agrees to indemnify KETOS from any and all loss or liability incurred by reason of the alleged breach by Contractor of any agreement with any third party.
- Term and Termination.
- Noninterference with Business. Contractor agrees that during the term of any Independent Contractor Agreement, Contractor will not, without KETOS’s express written consent, either directly or indirectly engage in any employment or business activity that is competitive with, or would otherwise conflict with the Services rendered to, or that would otherwise interfere with the business of, KETOS. Contractor agrees that during the term of any Independent Contractor Agreement, and for one year thereafter, Contractor will not either directly or indirectly, solicit or attempt to solicit any employee, independent contractor, or Contractor of KETOS or Customer to terminate his, her or its relationship with KETOS or the Customer in order to become an employee, Contractor, or independent contractor to or for any other person or entity.
- Successors and Assigns. Contractor may not subcontract or otherwise delegate or assign any Independent Contractor Agreement or any of its obligations under such Independent Contractor Agreement without KETOS’s prior written consent. Any attempted assignment in violation of the foregoing shall be null and void. Subject to the foregoing, any Independent Contractor Agreement together with these Terms will be for the benefit of KETOS and its successors and assigns and will be binding on Contractor’s assignees.
- Notices. Any notice required or permitted hereunder shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing.
- Governing Law. These Terms and the terms of any Independent Contractor Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.
- Severability. Should any provisions of these Terms be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of these Terms shall not be affected or impaired thereby.
- Waiver. The waiver by KETOS of a breach of any provision of these Terms by Contractor shall not operate or be construed as a waiver of any other or subsequent breach by Contractor.
- Injunctive Relief for Breach. Contractor’s obligations under these Terms and any Independent Contractor Agreement are of a unique character that gives them particular value; breach of any of such obligations will result in irreparable and continuing damage to KETOS for which there will be no adequate remedy at law. In the event of such breach, KETOS will be entitled to seek injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).
- Entire Agreement. These Terms, together with the applicable Independent Contractor Agreement, constitute the entire agreement between the parties relating to this subject matter and supersede all prior or contemporaneous oral or written agreements concerning such subject matter. These Terms will govern all Services undertaken by Contractor for KETOS; provided, however, that in the event of any conflict between these Terms and any Project Agreement, these Terms will control unless expressly overridden in the Independent Contractor Agreement. These Terms may only be changed or amended by mutual agreement of authorized representatives of the parties in writing.
12.1. Independent Contractor Agreement Term. The term of each Independent Contractor Agreement will be as set forth therein.
12.2. Termination Without Cause. KETOS may terminate an Independent Contractor Agreement with or without cause, at any time upon 15 days’ prior written notice to Contractor.
12.3. Termination for Cause. Either party may terminate any Independent Contractor Agreement immediately in the event the other party has materially breached these Terms or failed to perform its duties under the Independent Contractor Agreement, and failed to cure such breach within 15 days after notice by the non-breaching party is given.
12.4. Survival. The rights and obligations contained in Sections 4 (“Ownership of Work Product”), 5 (“Other Rights”), 6 (“License to Preexisting IP”), 7 (“Representations and Warranties”), 9 (“Confidential Information”) and 13 (“Noninterference with Business”) will survive any termination or expiration of any Independent Contractor Agreement.
