INDEPENDENT CONTRACTOR AGREEMENT

THIS INDEPENDENT CONTRACTOR AGREEMENT (“Agreement”) is made and entered between Coyuchi, Inc., a California corporation having a principal place of business of 1400 Tennessee St Ste 1, San Francisco, CA 94107 (“Coyuchi”), and the creator, an independent contractor (“Contractor”). 

1. Independent Contractor Services. Coyuchi hereby retains Contractor solely as an independent contractor.  Contractor hereby agrees to perform the services described in Exhibit A (the “Services”) for Coyuchi (or its designee).  

1. Compensation for Services.  Coyuchi agrees to pay Contractor the compensation described in Exhibit A for Contractor’s performance of the Services.  Coyuchi will not reimburse Contractor for any expenses incurred in connection with the performance of the Services unless specifically approved in a writing signed by Coyuchi.

1. Relationship of Parties.

1. 1. 1. Independent Contractor Relationship.  Coyuchi and Contractor agree that Contractor is solely an independent contractor for purposes of this Agreement. Contractor is not and will not represent that he/she is an employee(s) of Coyuchi and Contractor shall have no power, express or implied, to act for or on behalf of Coyuchi or to bind Coyuchi in any manner. 

1. 1. Control over Means of Work.  Contractor, and not Coyuchi, shall direct and control the means, hours, location, and methods of Contractor’s work.  

1. 1. Insurance.  Contractor must maintain Contractor’s own insurance, including, without limitation, Comprehensive General Liability Insurance.

1. 1. Tools and Materials.  Contractor must furnish his/her own tools and materials for any work in connection with this Agreement.  Coyuchi may furnish specific tools and materials as it deems necessary to complete the Services, which shall be returned to Coyuchi upon termination of this Agreement.

1. 1. No Fringe Benefits. Contractor is not entitled to any fringe benefits from Coyuchi including, without limitation, vacation benefits, health, dental, or vision benefits, or any other benefit to which employees of Coyuchi may otherwise be entitled. 

1. Taxes. 

1. 1. 1. Tax Responsibility. Contractor shall be solely and exclusively responsible for filing tax returns and paying all taxes that may be due, in connection with Contractor and/or Contractor’s representatives and employees, to any governmental taxing authority arising out of this Agreement, including, without limitation, any withholdings or associated penalties, and including, without limitation, taxes associated with the Federal Insurance Contributions Acts, and any taxes associated with wages, income, unemployment insurance, and/or disability, and whether state or federal in nature.

1. 1. 1. Tax Warranty. Contractor warrants that it will pay any taxes or monies that may be due to any governmental taxing authority arising out of this Agreement and the performance of the Services. Contractor further agrees to immediately notify Coyuchi in writing and to Coyuchi’ address listed above, of any notices, claims, liens, actions, judgments, requests, correspondence, and/or demands that Contractor receives or is made aware of, that are the subject of or related to such taxes or monies that may be due. 

1. Confidentiality and Proprietary Rights. 

1. 1. Definition.  “Confidential Information” means: any Coyuchi proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, marketing, finances or other business information disclosed by Coyuchi either directly or indirectly in writing, orally, or by drawings or inspection of parts or equipment.  In addition, Confidential Information also includes all Work Product (defined below).  Confidential Information also includes information received by Coyuchi from third parties subject to a duty on the part of Coyuchi to maintain the confidentiality of such information and to use it only for certain limited purposes.

   2. Exclusions.  Confidential Information does not include information that:  (a) is or becomes generally known or available to the public through no act or omission of Contractor; (b) is known to Contractor at the time of disclosure to Contractor by Coyuchi as evidenced by written records of Contractor; (c) is independently developed by Contractor without use of Coyuchi’ Confidential Information and without breach of this Agreement; or (d) is rightfully received by Contractor from a third party without restriction on use or disclosure.

1. 1. Use and Disclosure Restrictions.  Contractor will not use the Confidential Information except as necessary to exercise its duties to Coyuchi under this Agreement, and will not disclose such Confidential Information to any person or entity except as may be specifically authorized by Coyuchi.  Nothing in this Agreement shall prevent Contractor from disclosing Confidential Information to the extent Contractor is legally compelled to do so by any court or governmental investigative or judicial agency pursuant to proceedings over which such court or agency has jurisdiction; provided, however, that prior to any such disclosure, Contractor shall:  (a) assert the confidential nature of the Confidential Information to the court or agency; (b) immediately notify Coyuchi in writing of the court’s or agency’s order or request to disclose; and (c) cooperate fully with Coyuchi in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

1. 1. Injunctive Relief.  Contractor acknowledges that disclosure of any Confidential Information will give rise to irreparable injury to Coyuchi or the owner of such information, for which an adequate remedy at law may not be available.  Accordingly, Coyuchi or such other party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Contractor and its employee(s) and/or agents further acknowledges and agrees that the covenants contained herein are necessary for the protection of Coyuchi’ legitimate business interests and are reasonable in scope and content.  Contractor agrees that the provisions in this subparagraph shall survive the termination of this Agreement.

1. 1. Return of Confidential Information.  Upon termination of this Agreement, or upon Coyuchi’ earlier request, Contractor and its employee(s) and/or agents shall forthwith (i) deliver to Coyuchi any and all copies, in whole or in part, in whatever form or media, of the Confidential Information and marketing literature and all items which are otherwise the property of Coyuchi including, without limitation, any software, in Contractor's possession, custody or control, or (ii) at Coyuchi’ direction, destroy the same, and delete all Coyuchi Confidential Information from its computers.  Contractor shall certify in writing to Coyuchi such return or destruction and deletion as soon as practicable thereafter, but in no event later than ten (10) days thereafter.  Contractor shall certify, in writing, the return of such property pursuant to the terms of this Agreement.  

1. 1. Proprietary Rights.  Except for Pre-Existing Material (as defined below), all work performed by Contractor and its employee(s) and/or agent(s) hereunder, and all materials, products and deliverables developed or prepared for Coyuchi by Contractor and its employee(s) and/or agents hereunder (whether or not such work is completed) (collectively, “Work Product”) are the exclusive property of Coyuchi and all right, title and interest therein shall vest exclusively in Coyuchi when created. Contractor acknowledges that such rights extend to both the intellectual processes and to the actual expressions and articulations contained in such works (including, but not limited to, concepts, ideas, processes, programs, algorithms, methods, formulae, compositions, techniques, articles, and machines, as well as improvements thereof or know-how related thereto).  Contractor hereby irrevocably assigns to Coyuchi all right, title and interest in and to all Work Product.  Coyuchi shall have the right to obtain and to hold in its own name, patents, copyrights, registrations or such other protection as may be appropriate to the subject matter and any extensions and renewals thereof. Contractor agrees to assist Coyuchi or its designee, at Coyuchi’ expense, in every proper way to secure Coyuchi’ rights in the Work Product and any patents, copyrights, or other intellectual property rights relating thereto in any and all countries, including the disclosure to Coyuchi of all pertinent information with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which Coyuchi shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to Coyuchi its successors, assigns and nominees the sole and exclusive rights, title and interest in and to such rights, and any patents, copyrights, or other intellectual property rights relating thereto.  Contractor irrevocably agrees not to assert against Coyuchi or its successors or licensees any claim of any intellectual property rights or moral rights of Contractor relating to the Work Product.  Unless otherwise requested by Coyuchi upon the completion of the work set forth in this Agreement, or upon the earlier termination this Agreement in accordance with the terms herein, Contractor and its employees and/or agents shall immediately turn over to Coyuchi all materials and deliverables developed pursuant to this Agreement. 

1. 1. Pre-Existing Materials.  Contractor agrees that if in the course of performing the Services, Contractor incorporates into any deliverable provided to Coyuchi hereunder any invention, original work of authorship, improvement, development, concept, discovery, or other proprietary information owned by Contractor or in which Contractor has a right or license (“Pre-Existing Material”), (i) Contractor shall inform Coyuchi in writing before incorporating such Pre-Existing Material into any such deliverable and shall provide substantiation of its assertion that such Pre-Existing Material is not, in fact, Work Product; and (ii) Coyuchi is hereby granted and shall have a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to reproduce, make derivative works based upon, modify, perform, display, use, make, have made, sell, distribute, and import such Pre-Existing Material as part of or in connection with such deliverable.  Contractor shall not incorporate any third party materials (including, but not limited to, open source software), intellectual property, or proprietary information into any deliverable without Coyuchi’ prior written approval of such incorporation.  

1. 1. License to Record.  If the Services involve the delivery of a lecture, training course, speech, or other performance, Contractor hereby grants to Coyuchi a license to record (by videotape, audio tape, any electronic media, or any combination thereof) such performance and to make reproductions and play any such recording for any Coyuchi audience.  

1. 1. Power of Attorney.  Contractor agrees that if Coyuchi is unable because of Contractor’s unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Contractor’s signature to apply for or to pursue any application for any United States or foreign patent or copyright or mask work registrations covering the rights of Coyuchi described above, then Contractor hereby irrevocably designates and appoints Coyuchi and its duly authorized officers and agents as Contractor’s agent and attorney-in-fact, to act for and in Contractor’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of such patents and copyright and mask work registrations, with the same legal force and effect as if executed by Contractor.  This appointment is coupled with an interest (which means that it shall remain in effect even after Contractor becomes incapacitated or dies).  

1. 1. No Such Rights or Representations.  This Agreement does not grant to Contractor any rights to use any patents, trademarks, trade names or copyrights of Coyuchi.  Contractor shall make no representations or warranties relating to Coyuchi’ products or services and shall incur no liabilities or expenses on behalf of Coyuchi.  

1. Contractor Warranties.  Contractor represents and warrants as follows:

1. 1. Proper Skill and Training.  Contractor represents and warrants that Contractor has the requisite expertise, ability, and legal right to perform the Services contemplated under this Agreement.  Contractor further agrees to diligently and competently use best efforts to provide the highest quality services while performing Services under this Agreement, which at a minimum, Contractor warrants will be performed in a professional and workmanlike manner, in conformance with the standards for comparable services in the industry, and in compliance with any specifications or other requirements of this Agreement.  Contractor further agrees that all Services provided under this Agreement shall be in accordance with all applicable laws, statutes, rules, and regulations (including, but not limited to, United States Department of Commerce and other United States export controls; Immigration Reform and Control Act of 1986; applicable wage and hour laws; the Equal Opportunity Clause stated in 41 CFR 60 1.4(a); Executive Order 11246 - Equal Employment Opportunity (as amended)).

1. 1. No Patent, Trademark, or Copyright Violation.  All Work Product and other deliverables, or any part thereof, delivered to Coyuchi under this Agreement, does not, and will not, upon delivery to Coyuchi to the best of the Contractor’s knowledge, infringe any patent right, copyright, trade secret right or other intellectual property right of any third party.  Contractor has not entered into any agreement or commitments with any third party that may affect Coyuchi’ title to the Work Product or right to market and distribute the Work Product and other deliverables.

1. 1. No Inappropriate Conduct.  Although Contractor agrees that he/she is not an employee of Coyuchi Contractor agrees that he/she shall not engage in any inappropriate, discriminatory, retaliatory, and/or harassing conduct towards any of Coyuchi’ employees, clients, vendors, agents, directors, officers, or representatives, including, without limitation, any conduct violative of the California Fair Employment and Housing Act (Cal. Gov’t. Code § 12940, et. seq.) and/or Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et. seq.) and/or the California Labor Code.   

1. 1. No Conflicting Obligations.  Contractor certifies that Contractor has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude Contractor from complying with the provisions hereof, and warrants that Contractor will not enter into any such conflicting Agreement during the term of this Agreement.   

1. 1. Loyalty.  Contractor may not use any of the information provided under this Agreement or in connection with any of the Services to solicit business from any Coyuchi customers.  Contractor will not make any disparaging comments to any Coyuchi customers or any other person regarding any Coyuchi product or service or indicate that any such product or service is inferior or otherwise deficient when compared to competitive products or services.   

1. 1. No Solicitation.  Contractor acknowledges that Coyuchi expends a great deal of effort and commits substantial resources to attract and retain qualified employees and Contractors and that Coyuchi’ employees and consultants are exposed to Confidential Information of Coyuchi.  During the term of this Agreement and for six (6) months thereafter, Contractor may not solicit for employment (as an employee or as an independent contractor), any person who is, or at any time during the preceding six (6) month period has been, an employee of Coyuchi or a contractor of Coyuchi associated with the subject matter of this Agreement.  The foregoing prohibition shall not apply to general, non-targeted solicitations for employment such as newspaper or on-line job postings or advertisements, job fairs, etc.   

1. Indemnification.  Contractor hereby assumes full responsibility to defend, indemnify, and hold harmless Coyuchi its officers, directors, shareholders, agents and representatives from any and all claims, demands, costs, expenses, fees (including, without limitation, attorneys’ fees, litigation related fees, and costs), damages, liabilities, losses, injuries, liens, taxes, interest, judgment, causes of action, and/or penalties incurred, directly or indirectly, relating to or arising out of:

1. 1. Contractor’s failure to comply with or, Contractor’s breach of, any of the terms of this Agreement;

   2. a determination at any time in the future by the Internal Revenue Service that Contractor was or is an employee and/or agent of Coyuchi provided that Coyuchi promptly provides Contractor with written notice of such claim and all necessary information and assistance in connection therewith; or 

   3. Contractor’s negligence or intentional harm.  

Contractor further agrees to promptly notify Coyuchi in writing and to Coyuchi’ address listed above, of any notices, claims, liens, actions, judgments, requests, correspondence, and/or demands that Contractor receives or is made aware of, that are the subject of or related to this section.  

1. Term and Termination.  

1. Term.  This Agreement shall commence on the date set forth on the first page of this Agreement and shall continue in full force and effect thereafter unless terminated with or without cause on at least [30] days’ written notice by either party.

1. Termination for Cause.  Notwithstanding the foregoing, Coyuchi may immediately terminate this Agreement upon written notice if Contractor:

(1) commits an act of fraud, embezzlement, or misappropriation involving Coyuchi;

(2) is convicted by a court of competent jurisdiction of, or enters a plea of guilty or no contest to, any felony;

(3) commits an act, or fails to commit an act, involving Coyuchi that amounts to willful misconduct, wanton misconduct, or gross negligence;

(4) intentionally engages in any activity that is in conflict with or adverse to the interests of Coyuchi;

(5) materially breaches this Agreement or fails to perform the Services specified herein;

(6) dies; or

(7) becomes bankrupt or insolvent.

1. Effect of Termination.  Upon the termination of this Agreement , except as provided in this Agreement, each party’s rights and obligations under this Agreement shall terminate, including all of Contractor’s rights to compensation, except for amounts due and owing prior to the date of termination.  The termination of this Agreement shall not affect Sections 3(e), 3(f), 4, 5, 6, 7, 8, and 12, each of which shall continue in effect.  Coyuchi’ right of termination hereunder shall not preclude it from seeking any and all other remedies that it may have at law or in equity.

1. Limitation of Liability.  IN NO EVENT SHALL COYUCHI OR ITS SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CHARACTERIZED, TO THE FULLEST EXTENT THE LAW PERMITS SUCH DISCLAIMER AND EVEN IF COYUCHI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL COYUCHI’ CUMULATIVE AGGREGATE LIABILITY, IN CONTRACT AND AT LAW AND IRRESPECTIVE OF FAULT OR NEGLIGENCE, EXCEED THE COMPENSATION PAID BY COYUCHI PURSUANT TO THIS AGREEMENT.

1. Assignment.   Neither party may assign this Agreement, nor any rights granted herein, without the prior written consent of the other party.  Notwithstanding the foregoing, Coyuchi may assign this Agreement to the surviving entity as a result of any merger, acquisition or reorganization of Coyuchi or in connection with the sale of all or substantially all of the assets of Coyuchi.

1. Notices.  All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered or if sent by facsimile, or by e-mail transmission with pdf attachment, or by recognized overnight courier (such as Federal Express of DHL), or mailed by certified or registered mail, postage prepaid, to the addresses set forth on the first page hereof or to such other persons and/or addresses as either party shall give upon their notice to the other.  All notices shall be deemed to have been given and received on the earlier of actual delivery (except that faxes and e-mails sent on a non-business day will be deemed received on the next business day, according to the recipient’s business calendar) or three (3) days from the date of postmark.

1. Binding Effect.  This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their successors and assigns.

1. Construction of Agreement.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. No waiver by any party or breach of any term hereunder shall be construed as a waiver of any subsequent breach of that term or of any other term of the same or different nature.

1. Saving Provision.  In the event that any covenant, condition, or other paragraph or provision of this Agreement is held to be inoperative, invalid, void or illegal by any court, administrative body, or arbitrator of competent jurisdiction, such term or condition shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair or invalidate any other covenant, condition, or other provision(s) of this Agreement.  If such condition, covenant or other provision shall be deemed invalid due to its/their scope or breadth, such covenant, condition, or other provision(s) shall be deemed valid to the extent of the scope or breadth permitted by law.

1. Entire and Final Agreement.  This Agreement is intended to be and is final and binding, regardless of any claims of misrepresentation, concealment of fact, or mistake of law or fact.  This Agreement constitutes the entire agreement between Contractor, on the one hand, and Coyuchi on the other hand, and it supersedes any previous negotiations, agreements and understandings concerning this subject matter.

1. No Waiver or Modification.  This Agreement may not be modified, altered or amended except by a writing signed by each of the parties.  No waiver of any provision of this agreement will be valid unless in writing and signed by the party against whom such waiver is charged.

1. Parties’ Understanding.  All parties to this Agreement represent that they have read this Agreement and fully understand all of its terms; that they have executed this Agreement without coercion or duress of any kind; that they understand any right they may have; and that they sign this Agreement with full knowledge of such rights.

1. Counterparts.  This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  An originally executed version of this Agreement or any Exhibit, that is delivered by one party to the other party, as evidence of signature, by facsimile, or by electronic mail after having been scanned as an image file (including, Adobe PDF, TIF, etc.) shall, for all purposes hereof, be deemed an original signature and neither party shall have the right to object to the manner in which the Agreement was executed as a defense to the enforcement of the Agreement.