Independent Contractor Agreement for Creative Contractor (for Firm)

Independent Contractor Agreement for Creative Contractor (for Firm)

When you're hiring a creative consultant to create or contribute copyrightable work, it's important to establish your company's relationship with the worker and the work product -- protect your interests with this independent contractor agreement.  The agreement covers:

  • who owns the work product and how it may be used
  • services the IC will provide
  • when the IC will be paid and how much

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See below the form for a full product description.

Independent Contractor Agreement for Creative Contractor

 

Parties

This Agreement is made between  ("Client"), with a principal place of business at , and  ("Contractor"), with a principal place of business at .

Services to Be Performed

Alternate Selection: [services to be performed]
Label Contract Text
services

Contractor agrees to perform the following services for Client: 

services in Exhibit 

Contractor agrees to perform the services described in Exhibit A, which is attached to and made part of this Agreement.

Payment

Alternate Selection: [payment]
Label Contract Text
fixed fee

Contractor will be paid $ upon completion of the work as detailed in this Agreement.

installments

Client will pay Contractor a fixed fee of $, in  installments as follows:

hour/day/week/month

Contractor will be compensated at the rate of $ per .

Multiple Selection: [maximum liability]
Label Contract Text
cap on payment

Unless otherwise agreed upon in writing by Client, Client's maximum liability for all services performed during the term of this Agreement will not exceed $.

Expenses

Alternate Selection: [expenses]
Label Contract Text
no reimbursement

Contractor will be responsible for all expenses incurred while performing services under this Agreement.

reimbursement

Client will reimburse Contractor for the following expenses that are directly attributable to work performed under this Agreement: . Contractor will submit an itemized statement of Contractor's expenses. Client will pay Contractor within 30 days after receipt of each statement.

 Invoices

Contractor will submit invoices for all services rendered. Client will pay Contractor within  days after receipt of each invoice.

 Materials

Contractor will furnish all materials, equipment, and supplies used to provide the services required by this Agreement.

Intellectual Property Ownership

Alternate Selection: [intellectual property rights]
Label Contract Text
assign all rights

Contractor assigns to Client Contractor's entire right, title, and interest in anything created or developed by Contractor for Client under this Agreement. Contractor will help prepare any papers that Client considers necessary to secure any copyrights, trademarks, or other proprietary rights at no charge to Client. However, Client will reimburse Contractor for reasonable out-of-pocket expenses incurred. Contractor must obtain written assurances from Contractor's employees and contract personnel that they agree with this assignment. Contractor agrees not to use any of the intellectual property mentioned above for the benefit of any other party without Client's prior written permission.

work made for hire

To the extent that the work performed by Contractor under this Agreement (Contractor's Work) includes any work of Authorship entitled to protection under the copyright laws, the parties agree to the following provisions:

  • Contractor's Work has been specially ordered and commissioned by Client as a contribution to a collective work, a supplementary work, or other category of work eligible to be treated as a work made for hire under the United States Copyright Act.
  • Contractor's Work will be deemed a commissioned work and a work made for hire to the greatest extent permitted by law.
  • Client will be the sole author of Contractor's Work and any work embodying the Contractor's Work according to the United States Copyright Act.
  • To the extent that Contractor's Work is not properly characterized as a work made for hire, Contractor grants to Client all right, title, and interest in Contractor's Work, including all copyright rights, in perpetuity and throughout the world.
  • Contractor will help prepare any papers Client considers necessary to secure any copyrights, patents, trademarks, or intellectual property rights at no charge to Client. However, Client will reimburse Contractor for reasonable out-of-pocket expenses incurred.

In the event that the work performed and resulting intellectual property does not qualify as a work made for hire, Contractor agrees to assign all rights in such work to Client. Contractor agrees not to use any of the intellectual property mentioned above for the benefit of any other party without Client's prior written permission.

assign certain rights

Contractor assigns to Client the following intellectual property rights in the work created or developed by Contractor under this Agreement: .

Multiple Selection: [releases]
Label Contract Text
releases

Releases

Contractor will obtain all necessary copyright permissions and privacy releases for materials provided. Contractor will indemnify Client against all claims and expenses, including reasonable attorney fees, due to Contractor's failure to obtain such permissions or releases.

Multiple Selection: [moral rights]
Label Contract Text
include moral rights clause

Moral Rights Waiver for Works of Fine Art

Contractor waives any and all moral rights or any similar rights in the work created or developed by Contractor under this Agreement ("Work Product") and agrees not to institute, support, maintain, or permit any action or lawsuit on the grounds that Client's use of the Work Product: (a) constitutes an infringement of any moral right or any similar right, (b) is in any way a defamation or mutilation of the Work Product, (c) damages Contractor's reputation, or (d) contains unauthorized variations, alterations, changes, or translations of the Work Product.

Independent Contractor Status

Contractor is an independent contractor, and neither Contractor nor Contractor's employees or contract personnel is, or will be deemed, Client's employees. In its capacity as an independent contractor, Contractor agrees and represents, and Client agrees, as follows:

Multiple Selection: [independent contractor status]
Label Contract Text

IC status 1

Contractor has the right to perform services for others during the term of this Agreement subject to noncompetition provisions set out in this Agreement, if any.

IC status 2

Contractor has the sole right to control and direct the means, manner, and method by which the services required by this Agreement will be performed.

IC status 3

Contractor has the right to perform the services required by this Agreement at any place or location and at such times as Contractor may determine.

IC status 4

Contractor will furnish all equipment and materials used to provide the services required by this Agreement, except to the extent that Contractor's work must be performed on or with Client's computer or existing software.

IC status 5

The services required by this Agreement will be performed by Contractor or Contractor's employees or contract personnel, and Client will not be required to hire, supervise, or pay any assistants to help Contractor.

IC status 6

Contractor is responsible for paying all ordinary and necessary expenses of its staff.

IC status 7

Neither Contractor nor Contractor's employees or contract personnel will receive any training from Client in the professional skills necessary to perform the services required by this Agreement.

IC status 8

Neither Contractor nor Contractor's employees or contract personnel will be required to devote full time to the performance of the services required by this Agreement.

IC status 9

Client will not withhold from Contractor's compensation any amount that would normally be withheld from an employee's pay.

 

Business Permits, Certificates, and Licenses

Contractor has complied with all federal, state, and local laws requiring business permits, certificates, and licenses required to carry out the services to be performed under this Agreement.

State and Federal Taxes

Client will not:

  • withhold FICA (Social Security and Medicare taxes) from Contractor's payments or make FICA payments on Contractor's behalf
  • withhold state or federal income tax from Contractor's payments, or
     
  • withhold any other state or federal payroll taxes from Contractor's payments or make such contributions on Contractor's behalf.

Contractor will pay all taxes incurred while performing services under this Agreement -- including all applicable income taxes and, if Contractor is not a corporation, self-employment (Social Security) taxes. Upon demand, Contractor will provide Client with proof that such payments have been made.

Fringe Benefits

Contractor understands that neither Contractor nor Contractor's employees or contract personnel are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of Client.

Workers' Compensation

Client will not obtain workers' compensation insurance on behalf of Contractor or Contractor's employees or agents. Contractor will provide Contractor's employees with workers' compensation insurance to the extent required by law and provide Client with a certificate of workers' compensation insurance. Contractor agrees to hold harmless and indemnify Client for any and all claims arising out of any injury, disability, or death of Contractor or any of Contractor's employees or agents.

Multiple Selection: [if any policy of workers\' compensation]
Label Contract Text
if any policy of workers' comp

Contractor will obtain an "if any" policy of workers' compensation. Contractor will provide Client with proof of such coverage before starting work.

Unemployment Compensation

Client will make no state or federal unemployment compensation payments on behalf of Contractor or Contractor's employees or contract personnel. Contractor will not be entitled to these benefits in connection with work performed under this Agreement. Contractor will be responsible for making any such unemployment contributions on behalf of Contractor's employees, to the extent require by law.

Multiple Selection: [insurance clause option]
Label Contract Text
insurance coverage

Insurance

Multiple Selection: [insurance types]
Label Contract Text
general liability

General Liability. Client will not provide any insurance coverage of any kind for Contractor or Contractor's employees or contract personnel. Contractor will maintain a broad form commercial general liability insurance policy providing combined single limits of not less than $ per occurrence and $ annual aggregate. Before commencing any work, Contractor will provide Client with proof of this insurance and that Client has been made an additional insured under the policy.

professional liability

Professional Liability. Contractor will obtain professional liability insurance coverage for malpractice or errors or omissions committed by Contractor or Contractor's employees or contract personnel during the term of this Agreement. The policy will provide for coverage of at least $ for each occurrence and $ annual aggregate. Before commencing any work, Contractor will provide Client with proof of this insurance.

Warranties and Representations

Contractor warrants and represents that:

  • Contractor has the authority to enter into this Agreement and to perform all obligations hereunder.
  • The services to be performed are and will be free and clear of all encumbrances including security interests, licenses, liens, or other restrictions except as follows: .
  • The use, reproduction, distribution, or modification of any work product resulting from the services does not and will not violate the copyright, patent, trade secret, or other property right of any former client, employer, or third party.

Indemnification

Contractor agrees to indemnify and hold harmless Client against any third-party claims, actions, or demands, including without limitation reasonable attorney and accounting fees, alleging or resulting from the breach of the warranties contained in this Agreement. Client will provide notice to Contractor promptly of any such claim, suit, or proceeding and will assist Contractor, at Contractor's expense, in defending any such claim, suit, or proceeding.

Term of Agreement

This agreement will become effective when signed by both parties and will terminate on the earliest of:

  • the date Contractor completes the services required by this Agreement
  • , or
  • the date a party terminates the Agreement as provided below.

Termination of Agreement

This Agreement may be terminated:

  • without cause, by  days' prior written notice by either party, or
  • with cause, immediately upon material breach of any term of this Agreement by either party.

Client shall promptly pay Contractor for services performed before the effective date of termination. Client shall not owe Contractor compensation for any services performed following such date.

Multiple Selection: [confidential information]
Label Contract Text

confidential information

Confidential Information

Contractor confidentiality. Contractor acknowledges that within the course of providing services, it will be necessary for Client to disclose certain confidential and proprietary information to Contractor in order for Contractor to perform duties under this Agreement. Contractor acknowledges that any disclosure to any third party or any misuse of this proprietary or confidential information would irreparably harm Client. Accordingly, Contractor will not use or disclose to others without Client's written consent Client's confidential information, except when reasonably necessary to perform the services under this Agreement.

Scope of confidential information. Confidential Information includes, but is not limited to:

  • the written, printed, graphic, or electronically recorded materials furnished by Client for use by Contractor
  • Client's business or marketing plans or strategies, customer lists, operating procedures, trade secrets, design formulas, know-how and processes, computer programs and inventories, discoveries, and improvements of any kind
  • any tangible information produced by Contractor for Client under this agreement that provides Client with a business advantage over competitors and is unknown by Client's competitors
  • any written or tangible information stamped "confidential," "proprietary," or with a similar legend, and
  • any written or tangible information not marked with a confidentiality legend, or information disclosed orally to Contractor, that is treated as confidential when disclosed and later summarized sufficiently for identification purposes in a written memorandum marked "confidential" and delivered to Contractor within 30 days after the disclosure.

Contractor will not be restricted in the use of any material that is publicly available, already in Contractor's possession prior to commencement of Contractor's provision of services to Client, known to Contractor without restriction, or rightfully obtained by Contractor from sources other than Client.

Contractor's obligations regarding proprietary or confidential information extend to information belonging to customers and suppliers of Client about which Contractor may have gained knowledge as a result of Contractor's services to Client.

Contractor will not disclose to Client information or material that is a trade secret of any third party. The provisions of this clause will survive any termination of this Agreement.

Multiple Selection: [disputes option]
Label Contract Text
private dispute resolution

Disputes

Alternate Selection: [dispute resolution method choice]
Label Contract Text
mediation only

Mediation. If a dispute arises under or relating to this Agreement, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected. The parties will share the costs of the mediator equally. Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute. If the dispute is not resolved within 30 days after it is referred to the mediator, either party may take the matter to court.
 

mediation to arbitration

(no litigation)

Mediation and Arbitration. If a dispute arises under or relating to this Agreement, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected. The parties will share the costs of the mediator equally. Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute. If the dispute is not resolved within 30 days after it is referred to the mediator, it will be settled by binding arbitration by an arbitrator to be mutually selected. Judgment on the arbitration award may be entered in any court that has jurisdiction over the matter.
 

arbitration (no litigation)

Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration by an arbitrator to be mutually selected. Judgment on the arbitration award may be entered in any court that has jurisdiction over the matter. 
 

Multiple Selection: [attorney fees option]
Label Contract Text
attorney fees

Attorney Fees

The prevailing party shall have the right to collect from the other party its reasonable costs and disbursements and attorney fees incurred in enforcing this Agreement.

Entire Agreement

This is the entire agreement between the parties. It replaces and supersedes any and all oral agreements between the parties, as well as any prior writings. This Agreement may not be amended except in a writing as provided for in this Agreement.

Successors

This agreement binds and benefits the respective successors, inheritors, assigns, and personal representatives of the parties, except to the extent of any contrary provision in the Agreement.

Waiver

The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.

Governing Law

This Agreement will be governed by and construed in accordance with the laws of the state of  

Severability

If any court determines that any provision of this Agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and will not make any other provision of this agreement invalid or unenforceable and shall be modified, amended, or limited only to the extent necessary to render it valid and enforceable.

Attached Papers

Any attached sheet or document shall be regarded as fully contained in this Agreement.

Notices

All notices must be in writing. A notice may be delivered to a party at the address that follows a party's signature or to a new address that a party designates in writing. A notice may be delivered: in person, by certified mail, or by overnight courier.

No Partnership

This Agreement does not create a partnership relationship. Contractor does not have authority to enter into contracts on Client's behalf.

 

 

Multiple Selection: [electronic signature]
Label Contract Text
electronic signature

Electronic Signatures

This agreement may be signed by an electronic or digital signature.

Keep Together

Counterparts

This agreement may be signed by the parties in different counterparts and the signature pages combined will create a document binding on all parties.

MY SIGNATURE BELOW INDICATES THAT I HAVE READ AND UNDERSTOOD THIS AGREEMENT.

Client: 
Title: _____________________________________

Signature: ____________________________________________
Date: _______________
Address: 

 

Contractor: 
Title: ______________________________________

Signature: ____________________________________________
Date: _______________
Address: 

Taxpayer ID Number: 
 

 

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Establish ownership of copyrightable works when you hire a creative consultant as an independent contractor

If your firm hires someone to create or contribute copyrightable work, you're hiring a creative consultant. When you're dealing with copyrightable subject matter, it's essential that you address issues of ownership before the contractor begins the job. And, if you ever come under IRS scrutiny, it's important that you have documentation establishing the status of your creative consultant as an independent contractor ("ICs"). Use this simple agreement to help ensure that your working relationship functions smoothly, to prove that the worker is indeed an independent contractor and not an employee, and to establish copyrights on the finished work product. 

The agreement covers:

  • services the IC will provide
  • deadlines the IC must meet
  • when the IC will be paid and how much
  • who owns the work product and how it may be used
  • how either side can change or end the agreement

Simply fill out the required information on the form, enter your IC's taxpayer ID number, print, and sign. It's that easy!

This form is appropriate for organizations hiring ICs. If you're an independent contractor, use this form instead:

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