1. SERVICE CONTRACT TERMS BETWEEN BUYER AND PROVIDER.
User agrees that all Service Contracts between User and any Buyer or Provider regarding particular Assignments shall:
(i) unless Buyer and Provider expressly agree otherwise through the NSS™ Marketplace, contain substantially the same terms and conditions provided in Sections 1.1 through 1.10 below ("Standard Terms");
(ii) name NetSoftware Solutions (NSS™) as an express third party beneficiary under the Service Contract; and
(iii) make no representations or warranties on behalf of NSS™. Notwithstanding the foregoing, to the extent that Buyer and Provider agree to terms in their Service Contract different than the Standard Terms, nothing in such Service Contract will in any way limit or modify NSS™'s rights.
1.1 Services.
Provider shall perform Services in a professional and workmanlike manner. Under Fixed Price Assignments, Provider shall deliver the agreed-upon Work Product. Under Bill Rate Assignments, Provider shall use reasonable efforts to create the desired Work Product. Provider may not subcontract with third parties to perform Services on behalf of Provider or assist Provider in performing Services unless Provider has obtained Buyer's prior written consent to such arrangement.
1.2 Fees.
Buyer shall pay Provider the agreed-upon fees for time spent (under Bill Rate Assignments) or delivery of the Work Product (under Fixed Price Assignments). All amounts paid by Buyer shall be paid through the NSS™ Marketplace as set forth in the Billing and Payments Policy.
1.3 Termination.
Under Bill Rate Assignments, either party may terminate the Service Contract at any time for any or no reason, provided that Buyer remains obligated to pay for any time Provider spent prior to termination. Fixed Price Assignments may only be terminated by mutual agreement.
1.4 Buyer Deliverables.
Buyer grants Provider a limited, non-exclusive, revocable (at any time, at Buyer's sole discretion) right to use the Buyer Deliverables as necessary for the performance of the Services. Buyer reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Buyer Deliverables. Upon completion or termination of the Assignment, or upon request by the Buyer, Provider shall immediately return all Buyer Deliverables to the Buyer and purge all copies of Buyer Deliverables and Work Product contained in or on Provider's premises or systems or otherwise under Provider's control.
1.5 Work Product.
Any copyrightable works prepared by Provider in connection with an Assignment for Buyer shall be "works for hire"; consequently, Buyer will be considered the author and owner of such works. Unless prohibited by applicable mandatory law, all Proprietary Rights in and to Work Product shall vest in Buyer upon creation. If under mandatory law, Proprietary Rights do not vest in Buyer upon creation, Provider hereby assigns all Proprietary Rights to Work Product to Buyer, effective upon creation. To the extent that under mandatory law, rights can only be assigned after creation, Provider hereby irrevocably agrees to assign, immediately following the creation, all Proprietary Rights to Work Product to Buyer. To the extent that under mandatory law, Proprietary Rights cannot be assigned, Provider hereby irrevocably agrees to grant, and hereby grants, to Buyer an exclusive (excluding also Provider), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under mandatory law, Provider hereby irrevocably agrees to grant, and hereby grants, to Buyer, such rights as Buyer reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Buyer will be able to acquire, perfect and use such Proprietary Rights, Provider will:
(i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Buyer;
(ii) sign any documents at Buyer's request to assist Buyer in the documentation, perfection and enforcement of its rights; and
(iii) provide Buyer with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Provider also irrevocably authorizes Buyer to act and sign on Provider's behalf and take any necessary steps in order to perfect Buyer's rights under this Agreement. In case that under mandatory law, Provider retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights" (collectively "Moral Rights") or other inalienable rights to Work Product or Confidential Information under this Agreement, Provider irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Provider cannot waive such rights, Provider agrees not to exercise such rights, until Provider has provided prior written notice to Buyer and then only in accordance with any reasonable instructions that Buyer issues in the interest of protecting its rights. Provider agrees to assist Buyer in every proper way to obtain and enforce the Proprietary Rights and other legal protections for the Work Product in any and all countries. Provider will sign documents that the Buyer may reasonably request for use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Buyer may select at its sole discretion. Provider's obligations under this Section 1.5 will continue even after Provider deregisters from or ceases use of the NSS™ Marketplace. Provider appoints Buyer as Provider's attorney-in-fact to execute documents on Provider's behalf for the purposes set forth in this Section 1.5.
1.6 Pre-existing IP in Work Product.
User shall ensure that no Work Product created or delivered by User as a Provider includes any pre-existing software, technology or other IP, whether such pre-existing IP is owned by User or a third party including, without limitation, code written by proprietary software companies or developers in the open source community, (collectively "Pre-existing IP") without obtaining the prior written consent of the Buyer to the inclusion of such Pre-existing IP in the Work Product. User acknowledges that, without limiting any other remedies, User shall not be entitled to payment for, and shall refund any Provider Fees paid to User for, any Services performed on an Assignment if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 1.6.
1.7 Independent Contractor.
Provider's relationship with Buyer will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Provider acknowledges and agrees that neither it nor any of its employees or agents shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, or employee benefits of any kind from Buyer. Provider acknowledges and agrees that Buyer will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee and that and that Provider will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Provider's performance of Services. Provider agrees to accept exclusive liability for complying with all applicable state and federal laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on payment of Provider Fees by Buyer. Buyer will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers' compensation insurance on Provider's behalf. Provider hereby agrees to indemnify and defend Buyer against any and all such taxes or contributions, including penalties and interest. Provider agrees to provide proof of payment of appropriate taxes on any fees paid to Provider under this Agreement upon reasonable request of Buyer.
1.8 General.
Service Contracts shall be governed by Sections 5 (Confidential Information) 11 (General) and 13 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
1.9 Entire Agreement. T
he terms and conditions set forth in this Section 1 and/or any additional or different terms expressly agreed by Buyer and Provider through the NSS™ Legal Section shall constitute the entire agreement and understanding of Buyer and Provider with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
1.10 No Contracts outside the NSS™ Marketplace.
User, whether as a Buyer or Provider, agrees to use the NSS™ Legal Terms to enter into all contracts with other Users and except pursuant to the "Buy Out" provision set forth in the Billing and Payments Policy, shall take no steps to use any other means to enter into any contract with any other User that was introduced through the NSS™ introduction