SCHEDULE 1
SERVICES TO BE PROVIDED BY INDEPENDENT CONTRACTOR
1) Contractor will assist the Company with:
• Copy conceptualization and copywriting services for promotional e-mails and ecommerce assets, social media, print, and other marketing assets
• Ad hoc projects to be developed in partnership with the Marketing Operations
Manager, Copy Lead (Copy Manager), and Marketing Director,
This letter agreement (this “Agreement”) sets forth the terms and conditions whereby you agree
to provide certain services (as described on Schedule 1) to Surterra Holdings, Inc., DBA Parallel
Brands (the “Company”).
1. SERVICES.
1.1 The Company hereby engages you, and you hereby accept such engagement,
as an independent contractor to provide certain services to the Company on the terms and
conditions set forth in this Agreement.
1.2 You shall provide to the Company the services set forth on Schedule 1 (the
“Services”).
1.3 The Company shall not control the manner or means by which you perform the
Services, including but not limited to the time and place you perform the Services.
1.4 Unless otherwise set forth in Schedule 1, you shall furnish, at your own
expense, the equipment, supplies, and other materials used to perform the Services. The
Company shall provide you with access to its premises and equipment to the extent
necessary for the performance of the Services.
1.5 While on the Company’s premises or using the Company’s equipment, you
shall comply with all applicable policies of the Company relating to business and office
conduct, health and safety, and use of the Company’s facilities, supplies, information
technology, equipment, networks, and other resources.
2. TERM. The term of this Agreement shall commence on May 1, 2023 and shall
continue until June 30, 2023, unless earlier terminated in accordance with Section 10 (the
“Term”). Any extension of the Term will be subject to mutual written agreement between you
and the Company (referred to collectively as the “Parties”).
3. FEES AND EXPENSES.
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3.1 As full compensation for the Services and the rights granted to the Company in
this Agreement, the Company shall pay you $50 per hour (the “Fees”). You acknowledge
that you will receive an IRS Form 1099-MISC from the Company, and that you shall be
solely responsible for all federal, state, and local taxes, as set out in Section 4.2.
3.2 You are solely responsible for any travel or other costs or expenses incurred by
you in connection with the performance of the Services, and in no event shall the Company
reimburse you for any such costs or expenses.
4. RELATIONSHIP OF THE PARTIES.
4.1 You are an independent contractor of the Company, and this Agreement shall
not be construed to create any association, partnership, joint venture, employee, or agency
relationship between you and the Company for any purpose. You have no authority (and
shall not hold yourself out as having authority) to bind the Company and you shall not make
any agreements or representations on the Company’s behalf without the Company’s prior
written consent.
4.2 Without limiting Section 4.1, you will not be eligible to participate in any
vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or
any other fringe benefits or benefit plans offered by the Company to its employees, and the
Company will not be responsible for withholding or paying any income, payroll, Social
Security, or other federal, state, or local taxes, making any insurance contributions,
including for unemployment or disability, or obtaining workers’ compensation insurance on
your behalf. You shall be responsible for, and shall indemnify the Company against, all such
taxes or contributions, including penalties and interest. Any persons employed or engaged
by you in connection with the performance of the Services shall be your employees or
contractors and you shall be fully responsible for them and indemnify the Company against
any claims made by or on behalf of any such employee or contractor.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 The Company is and will be, the sole and exclusive owner of all right, title,
and interest throughout the world in and to all the results and proceeds of the Services
performed under this Agreement, including but not limited to the deliverables set out on
Schedule 1 (collectively, the “Deliverables”) and all other writings, technology, inventions,
discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and
materials, and all other work product of any nature whatsoever, that are created, prepared,
produced, authored, edited, modified, conceived, or reduced to practice in the course of
performing the Services or other work performed in connection with the Services or this
Agreement (collectively, and including the Deliverables, “Work Product”) including all
patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade
secrets, know-how, and other confidential or proprietary information, and other intellectual
property rights (collectively “Intellectual Property Rights”) therein. You agree that the
Work Product is hereby deemed “work made for hire” as defined in 17 U.S.C. § 101 for the
Company and all copyrights therein automatically and immediately vest in the Company. If,
for any reason, any Work Product does not constitute “work made for hire,” you hereby
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irrevocably assign to the Company, for no additional consideration, your entire right, title,
and interest throughout the world in and to such Work Product, including all Intellectual
Property Rights therein including the right to sue for past, present, and future infringement,
misappropriation, or dilution thereof.
5.2 To the extent any copyrights are assigned under Section 5.1, you hereby
irrevocably waive in favor of the Company, to the extent permitted by applicable law, any
and all claims you may now or hereafter have in any jurisdiction to all rights of paternity or
attribution, integrity, disclosure, and withdrawal and any other rights that may be known as
“moral rights” in relation to all Work Product to which the assigned copyrights apply.
5.3 Upon the reasonable request of the Company, during and after the Term, you
shall promptly take such further actions, including execution and delivery of all appropriate
instruments of conveyance, and provide such further cooperation, as may be reasonably
necessary to assist the Company to apply for, prosecute, register, maintain, perfect, record,
or enforce its rights in any Work Product and all Intellectual Property Rights therein. In the
event the Company is unable, after reasonable effort, to obtain your signature on any such
documents, you hereby irrevocably designate and appoint the Company as your agent and
attorney-in-fact, to act for and on your behalf solely to execute and file any such application
or other document and do all other lawfully permitted acts to further the prosecution and
issuance of patents, copyrights, or other intellectual property protection related to the Work
Product with the same legal force and effect as if you had executed them. You agree that this
power of attorney is coupled with an interest.
5.4 As between you and the Company, the Company is, and will remain, the sole
and exclusive owner of all right, title, and interest in and to any documents, specifications,
data, know-how, methodologies, software, and other materials provided to you by the
Company (“Company Materials”), including all Intellectual Property Rights therein. You
have no right or license to use, publish, reproduce, prepare derivative works based upon,
distribute, perform, or display any Company Materials except solely during the Term to the
extent necessary to perform your obligations under this Agreement. All other rights in and to
the Company Materials are expressly reserved by the Company. You have no right or
license to use the Company’s trademarks, service marks, trade names, logos, symbols, or
brand names.
5.5 You shall require each of your employees and contractors to execute written
agreements containing obligations of confidentiality and non-use and assignment of
inventions and other work product consistent with the provisions of this Section 5 prior to
such employee or contractor providing any Services under this Agreement.
6. CONFIDENTIALITY.
6.1 You acknowledge that you will have access to information that is treated as
confidential and proprietary by the Company including without limitation the existence and
terms of this Agreement, trade secrets, technology, and information pertaining to business
operations and strategies, customers, pricing, marketing, finances, sourcing, personnel, and
operations of the Company, its affiliates, or their suppliers or customers, in each case
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whether spoken, written, printed, electronic, or in any other form or medium (collectively,
the “Confidential Information”). Any Confidential Information that you develop in
connection with the Services, including but not limited to any Work Product, shall be
subject to the terms and conditions of this clause. You agree to treat all Confidential
Information as strictly confidential, not to disclose Confidential Information or permit it to
be disclosed, in whole or part, to any third party without the prior written consent of the
Company in each instance, and not to use any Confidential Information for any purpose
except as required in the performance of the Services. You shall notify the Company
immediately in the event you become aware of any loss or disclosure of any Confidential
Information.
6.2 Confidential Information shall not include information that:
(a) is or becomes generally available to the public other than through your
breach of this Agreement; or
(b) is communicated to you by a third party that had no confidentiality
obligations with respect to such information.
6.3 Nothing herein shall be construed to prevent disclosure of Confidential
Information as may be required by applicable law or regulation, or pursuant to the valid
order of a court of competent jurisdiction or an authorized government agency, provided that
the disclosure does not exceed the extent of disclosure required by such law, regulation, or
order. You agree to provide written notice of any such order to an authorized officer of the
Company within three business days of receiving such order, but in any event sufficiently in
advance of making any disclosure to permit the Company to contest the order or seek
confidentiality protections, as determined in the Company's sole discretion.
6.4 Notice of Immunity Under the Defend Trade Secrets Act of 2016 (“DTSA”).
Notwithstanding any other provision of this Agreement:
(a) You will not be held criminally or civilly liable under any federal or
state trade secret law for any disclosure of a trade secret that:
(i) is made: (A) in confidence to a federal, state, or local
government official, either directly or indirectly, or to an attorney; and (B)
solely for the purpose of reporting or investigating a suspected violation of
law; or
(ii) is made in a complaint or other document that is filed under seal
in a lawsuit or other proceeding.
(b) If you file a lawsuit for retaliation by the Company for reporting a
suspected violation of law, you may disclose the Company’s trade secrets to your
attorney and use the trade secret information in the court proceeding if you:
(i) file any document containing the trade secret under seal; and
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(ii) do not disclose the trade secret, except pursuant to court order.
7. REPRESENTATIONS AND WARRANTIES.
7.1 You represent and warrant to the Company that:
(a) you have the right to enter into this Agreement, to grant the rights
granted herein and to perform fully all of your obligations in this Agreement;
(b) your entering into this Agreement with the Company and your
performance of the Services do not and will not conflict with or result in any breach or
default under any other agreement to which you are subject;
(c) you have the required skill, experience, and qualifications to perform
the Services, you shall perform the Services in a professional and workmanlike
manner in accordance with generally recognized industry standards for similar
services, and you shall devote sufficient resources to ensure that the Services are
performed in a timely and reliable manner;
(d) you shall perform the Services in compliance with all applicable
federal, state, and local laws and regulations;
(e) the Company will receive good and valid title to all Work Product, free
and clear of all encumbrances and liens of any kind;
(f) all Work Product is and shall be your original work (except for material
in the public domain or provided by the Company) and, to the best of your knowledge,
do not and will not violate or infringe upon the intellectual property right or any other
right whatsoever of any person, firm, corporation, or other entity.
7.2 The Company hereby represents and warrants to you that:
(a) it has the full right, power, and authority to enter into this Agreement
and to perform its obligations hereunder; and
(b) the execution of this Agreement by its representative whose signature is
set forth at the end hereof has been duly authorized by all necessary corporate action.
8. INDEMNIFICATION.
8.1 You shall defend, indemnify, and hold harmless the Company and its affiliates
and their officers, directors, employees, agents, successors, and assigns from and against all
losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties,
fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out
of or resulting from:
(a) bodily injury, death of any person, or damage to real or tangible,
personal property resulting from your acts or omissions; and
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(b) your breach of any representation, warranty, or obligation under this
Agreement.
8.2 The Company may satisfy such indemnity (in whole or in part) by way of
deduction from any payment due to you.
9. INSURANCE. During the Term, the Company may ask you maintain in force
adequate workers’ compensation, commercial general liability, errors and omissions, and other
forms of insurance, in each case with insurers reasonably acceptable to the Company, with policy
limits sufficient to protect and indemnify the Company and its affiliates, and each of their
officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and
successors and assigns, from any losses resulting from your conduct, acts, or omissions or the
conduct, acts, or omissions of your agents, contractors, servants, or employees. The Company
shall be listed as additional insured under such policy, and you shall forward a certificate of
insurance verifying such insurance upon the Company's written request, which certificate will
indicate that such insurance policies may not be canceled before the expiration of a 30 calendar
day notification period and that the Company will be immediately notified in writing of any such
notice of termination.
10. TERMINATION.
10.1 You or the Company may terminate this Agreement without cause upon three
business days’ written notice to the other party to this Agreement. In the event of
termination pursuant to this clause, the Company shall pay you any Fees then due and
payable for any Services completed up to and including the date of such termination.
10.2 You or the Company may terminate this Agreement, effective immediately
upon written notice to the other party to this Agreement, if the other party materially
breaches this Agreement, and such breach is incapable of cure, or with respect to a material
breach capable of cure, the other party does not cure such breach within 10 calendar days
after receipt of written notice of such breach.
10.3 Upon expiration or termination of this Agreement for any reason, or at any
other time upon the Company’s written request, you shall promptly after such expiration or
termination:
(a) deliver to the Company all Deliverables (whether complete or
incomplete) and all hardware, software, tools, equipment, or other materials provided
for your use by the Company;
(b) deliver to the Company all tangible documents and materials (and any
copies) containing, reflecting, incorporating, or based on the Confidential Information;
(c) permanently erase all of the Confidential Information from your
computer systems; and
(d) certify in writing to the Company that you have complied with the
requirements of this clause.
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10.4 The terms and conditions of this clause and Section 4, Section 5, Section 6,
Section 7, Section 8, Section 13, Section 14, and Section 15 shall survive the expiration or
termination of this Agreement.
11. OTHER BUSINESS ACTIVITIES. You may be engaged or employed in any other
business, trade, profession, or other activity which does not place you in a conflict of interest
with the Company; provided, that, during the Term, you shall not be engaged in any business
activities that do or may compete with the business of the Company without the Company’s prior
written consent to be given or withheld in its sole discretion.
12. NON-SOLICITATION. You agree that during the Term of this Agreement, you shall
not make any solicitation to employ the Company’s personnel without written consent of the
Company.
13. ASSIGNMENT. You shall not assign any rights, or delegate or subcontract any
obligations, under this Agreement without the Company’s prior written consent. Any assignment
in violation of the foregoing shall be deemed null and void. The Company may freely assign its
rights and obligations under this Agreement at any time. Subject to the limits on assignment
stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable
against each of the Parties hereto and their respective successors and assigns.
14. GOVERNING LAW, JURISDICTION, AND VENUE. This Agreement and all
related documents, including all schedules attached hereto, and all matters arising out of or
relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and
construed in accordance with, the laws of the State of Georgia, without giving effect to the
conflict of laws provisions thereof to the extent such principles or rules would require or permit
the application of the laws of any jurisdiction other than those of the State of Georgia. Any
action or proceeding by either of the Parties to enforce this Agreement shall be brought only in
any state or federal court located in the State of Georgia, County of Fulton. The Parties hereby
irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of
inconvenient forum to the maintenance of any action or proceeding in such venue.
15. MISCELLANEOUS.
15.1 You shall not export, directly or indirectly, any technical data acquired from
the Company, or any products utilizing any such data, to any country in violation of any
applicable export laws or regulations.
15.2 All notices, requests, consents, claims, demands, waivers, and other
communications hereunder (each, a “Notice”) shall be in writing and addressed to the
Parties at the addresses set forth on the first page of this Agreement (or to such other address
that may be designated by the receiving party from time to time in accordance with this
Section). All Notices shall be delivered by personal delivery, nationally recognized
overnight courier (with all fees prepaid), email (with confirmation of transmission), or
certified or registered mail (in each case, return receipt requested, postage prepaid). Except
as otherwise provided in this Agreement, a Notice is effective only if (a) the receiving party
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has received the Notice and (b) the party giving the Notice has complied with the
requirements of this Section.
15.3 This Agreement, together with any other documents incorporated herein by
reference and related exhibits and schedules, constitutes the sole and entire agreement of the
Parties to this Agreement with respect to the subject matter contained herein, and supersedes
all prior and contemporaneous understandings, agreements, representations, and warranties,
both written and oral, with respect to such subject matter.
15.4 This Agreement may only be amended, modified, or supplemented by an
agreement in writing signed by each party hereto, and any of the terms thereof may be
waived, only by a written document signed by each party to this Agreement or, in the case of
waiver, by the party or parties waiving compliance.
15.5 If any term or provision of this Agreement is invalid, illegal, or unenforceable
in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other
term or provision of this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction.
15.6 This Agreement may be executed in multiple counterparts and by facsimile
signature, each of which shall be deemed an original and all of which together shall
constitute one instrument.
If this letter accurately sets forth our understanding, kindly execute the enclosed copy of this
letter and return it to the undersigned.