c. Moral Rights. To the extent allowed by law, Section 2(a) and any license to Company hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral or the like. To the extent any of the foregoing is ineffective under applicable law, Provider hereby provides any and all ratification and consents necessary to accomplish the purposes of the foregoing to the extent possible. Provider will confirm any such ratification and consents from time to time as requested by Company. Provider will obtain the foregoing ratification, consents and authorizations, for Company’s exclusive benefit, from each person who provides any Services hereunder.
d. License. If any part of the Services or Inventions is based on, incorporates or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, modified, distributed or otherwise exploited, without using or violating any technology or intellectual property right owned by Provider (or any third party) and not assigned hereunder (Restricted Rights), then Provider hereby grants and agrees to grant to Company and its affiliates, successors and assignees a nonexclusive, perpetual, irrevocable, worldwide, royalty-free, sublicensable right and license to exploit and exercise all such Restricted Rights in support of Company’s exercise or exploitation of the Services, Inventions or other work performed hereunder (including any modifications, improvements and derivatives). Provider agrees not to use or disclose any Restricted Rights for which it is not fully authorized to grant the foregoing license.
3. WARRANTY. Provider represents and warrants that: (a) all work under this Agreement shall be Provider’s original work and none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Provider itself); (b) Provider has the full right to provide Company with the assignments and rights provided for herein; and (c) Provider will not disclose to Company or use for its benefit any trade secret or proprietary or confidential information of any third party.
4. TERM AND TERMINATION. This Agreement commences on the Effective Date and may be terminated by the written agreement of both Company and Provider. In addition, (a) Provider may terminate this Agreement at any time, for any or no reason, by giving Company 5 days’ prior written notice and (b) Company may terminate this Agreement for Cause (as such term is defined in the Stock Purchase Agreement). Sections 3 through 5 (inclusive) of this Agreement, and any remedies for breach of this Agreement shall survive any termination or expiration.
5. GENERAL PROVISIONS.
a. Relationship. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, employer, employee or agent of the other and shall not bind nor attempt to bind the other to any contract. Provider is an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including, but not limited to, Workers’ Compensation Insurance.
b. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflicts of law provisions. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal and state courts located in Massachusetts, and both parties hereby consent to such jurisdiction and venue for this purpose. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
c. Remedies. Provider acknowledges and agrees that in the event of any breach or threatened breach of Section 2 or 3, Company will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, Company shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of proving actual damages or posting any bond or surety, in addition to any other remedy that Company may have at law or in equity.
d. Notice. Any notice required or permitted to be given hereunder will be effective upon receipt and shall be given in writing, in English and delivered in person, via established express courier service (with confirmation of receipt), confirmed facsimile or registered or certified mail, postage prepaid, return receipt requested, to the parties at their respective addresses given herein or at such other address designated by written notice.
e. Assignment. This Agreement and the performance contemplated hereunder are personal to Provider and Provider shall not have the right or ability to subcontract, delegate, assign or otherwise transfer any rights or obligations under this Agreement without the prior written consent of Company. Any attempt to do otherwise shall be void and of no effect. Company may transfer this Agreement without the consent of Provider. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
Page 2
