Terms for
Designer

Deliverables.  Zypsy shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other intellectual property rights of any sort throughout the world) relating to any and all Deliverables and any other inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by or on behalf of Designer that arise in connection with the Designer Services, Deliverables or any Confidential Information (as defined below) (collectively, “Inventions”), including, but not limited to, source code developed or created by Designer that is not specific to Customer and is generally applicable to design or development projects for other Customers and deliverables (“Community Code”). Designer hereby makes all assignments necessary to accomplish the foregoing ownership. Further, Designer shall promptly disclose and provide all Inventions to Zypsy. Designer shall assist Zypsy, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned to Zypsy.  Designer hereby irrevocably designates and appoints Zypsy as its agents and attorneys-in-fact, coupled with an interest, to act for and on Designer’ behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Designer and all other creators or owners of the applicable Invention.

Background License. Notwithstanding the foregoing, no assignment made hereunder includes any Designer Technology. “Designer Technology” shall mean (a) Designer’s technology, methodologies and intellectual property existing as of the date on which Designer accepts these Terms for Designer or otherwise arising outside of work under these Terms for Designer, and (b) any intellectual property rights therein, in each case ((a) and (b)) that are expressly set forth in writing to Zypsy prior to delivery of the Deliverables to Zypsy. To the extent any Designer Technology is incorporated into or otherwise reasonably necessary to use or otherwise exploit any Deliverables or Inventions, Designer grants to Zypsy a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide license to fully exercise and exploit the Designer Technology and to make derivative works of the same (and any modifications, improvements or derivatives thereof) in support of Zypsy or the Customer’s exercise or exploitation of the Designer Services or any Deliverables.

Moral Rights; Further Assurances. Designer hereby waives all claims to any moral rights or other special rights which Designer may have or accrue in any Inventions. Designer shall further assist Zypsy from time to time at Zypsy’s request and expense, to further evidence, record, perfect, maintain and enforce any and all of the foregoing rights. Designer hereby irrevocably designates and appoints Zypsy as its agents and attorneys-in-fact, coupled with an interest, to act for and on Designer’s behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing assignment and license with the same legal force and effect as if executed by Zypsy and all other creators or owners of any applicable Inventions.

Third Party Materials. Designer shall obtain Zypsy’s prior written consent prior to incorporating in the Inventions or Deliverables information or materials to which third parties have any rights, whether by patent, copyright, trade secret or otherwise ("Third Party Materials"), unless otherwise specified in the applicable specifications. Further, unless otherwise specified in the applicable specifications, Designer shall obtain written permission to include such Third Party Materials (and for Zypsy and Customer to fully exploit such Third Party Materials in connection with their exploitation of the Deliverables), without any additional expense to Zypsy. This written permission must be consistent with all the rights granted to Zypsy under these Terms for Designer. Designer shall provide Zypsy with a copy of the written permission upon completion of the Deliverables or otherwise upon request.

Fees. Zypsy will pay to Designer the fees set forth on the applicable Project Page (“Designer Fees”), in accordance with the terms and conditions set forth in these Terms for Designer. If Designer has agreed to a “Payment Upon Completion” payment schedule, Zypsy shall pay such Designer Designer Fees within thirty (30) days of acceptance of the Deliverable by Zypsy. If Designer has agreed to a “Payment by Milestone” payment schedule, Zypsy shall pay Designer Designer Fees within fifteen (15) days upon confirmed completion of each applicable milestone set forth on the applicable Project Page. As the only consideration due Designer regarding the subject matter of these Terms for Designer, Zypsy will pay Designer in accordance with the Project Page.

Payment Disputes. If Designer disputes any payments, Designer must notify Zypsy within thirty (30) days after the date of payment or such dispute is waived. If a Customer notifies Zypsy that it is unsatisfied with a Deliverable and Zypsy determines in its sole reasonable discretion that the Deliverable has failed to reasonably meet the applicable specifications therefor, Designer agrees to provide a replacement Deliverable in accordance with the applicable specifications free of charge upon Zypsy’s request. In the event of refunds or other adjustments due to insufficient or unsatisfied performance of the Designer Services to a Customer, resulting in full or partial credit to a Customer, Zypsy, at its option, may require that Designer repay the fees originally paid to it on account of the sale of such Designer Services within fifteen (15) days after notice thereof from Zypsy.

Taxes. Designer will be solely responsible for payment of any taxes based on the income of Designer.

Term; Termination. Subject to earlier termination as set forth herein, these Terms for Designer shall take effect from the date on which Designer accepts these Terms for Designer and the Terms of Services, and remain in effect until terminated as provided herein. Zypsy may terminate these Terms for Developer or any Project at any time without cause upon twenty-four (24) hours’ notice to Zypsy. Designer may terminate this Agreement if there are no outstanding Projects by providing written notice to Zypsy. In addition, either Zypsy or Designer may terminate these Terms for Designer immediately if the other party breaches any material provision of these Terms for Designer and does not cure such breach within fifteen (15) days after receiving written notice thereof.

Survival. Upon termination of these Terms for Designer, all obligations in this Agreement will terminate, provided that Articles II, IV.a., V, VI, VII, VIII, IX, X, XI, XII and XIII will survive.

(a) such Designer has the required power and authority to accept into these Terms for Designer and to perform its obligations hereunder, (b) the acceptance of these Terms for Designer and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) these Terms for Designer constitute a legal, valid and binding obligation when accepted by such Designer.

(a) Designer will perform the Designer Services in a professional and workmanlike manner by itself or employees of Designer having a level of skill commensurate with the requirements of these Terms for Designer; (b) that the Deliverables will conform to the applicable specifications therefor and that none of the Designer Services, Deliverables or Inventions nor any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity; (c) Designer has the full right to allow it to provide Zypsy with the assignments and rights provided for herein (and has written enforceable agreements with all employees, contractors and other persons necessary to give it the rights to do the foregoing and otherwise fully perform these Terms for Designer); (d) Designer shall comply with all applicable laws, the applicable Statement(s) of Work, and other policies as set forth by Zypsy or Customers, in the course of performing the Designer Services; (e) if Designer’s work requires a license, Designer has obtained that license and the license is in full force and effect, (f) Designer is over 18 years of age, and (g) that all software included within any Deliverable is (i) free of all viruses, worms, trojan horses and other infections or harmful routines, (ii) does not contain any third-party software, including without limitation, “open source,” “copy left,” “public” or other similar code or anything derived from or based on any of the foregoing (unless approved by Zypsy in writing), and (iii) is free from (and if distributed would still be free from) any requirement imposed by a licensor that recipients be entitled to source code or to modify or distribute any such software.

Arbitration. IN CONSIDERATION OF DESIGNER’S INDEPENDENT CONTRACTOR RELATIONSHIP WITH ZYPSY, ITS PROMISE TO ARBITRATE ALL DISPUTES RELATED TO DESIGNER’S RELATIONSHIP WITH ZYPSY, AND DESIGNER’S RECEIPT OF THE COMPENSATION, AND OTHER BENEFITS PAID TO DESIGNER BY ZYPSY, AT PRESENT AND IN THE FUTURE, DESIGNER AGREES THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING ZYPSY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF ZYPSY, IN THEIR CAPACITY AS SUCH OR OTHERWISE), ARISING OUT OF, RELATING TO, OR RESULTING FROM DESIGNER’S INDEPENDENT CONTRACTOR RELATIONSHIP WITH ZYPSY OR THE TERMINATION OF DESIGNER’S INDEPENDENT CONTRACTOR RELATIONSHIP WITH ZYPSY, INCLUDING ANY BREACH OF THESE TERMS FOR DESIGNER, SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN CALIFORNIA CODE OF CIVIL PROCEDURE AND PURSUANT TO CALIFORNIA LAW. DISPUTES THAT DESIGNER AGREES TO ARBITRATE, AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, FEDERAL OR FOREIGN LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE CLAIMS OF HARASSMENT, DISCRIMINATION, APPLICABLE STATE LAW EMPLOYMENT CLAIMS AND WRONGFUL TERMINATION, AND ANY STATUTORY OR COMMON LAW CLAIMS. DESIGNER FURTHER UNDERSTANDS THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY DISPUTES THAT ZYPSY MAY HAVE WITH DESIGNER. DESIGNER FURTHER AGREES THAT DESIGNER WILL NOT ASSERT CLASS ACTION OR REPRESENTATIVE ACTION CLAIMS AGAINST ZYPSY IN ARBITRATION OR OTHERWISE, NOR WILL DESIGNER JOIN OR SERVE AS A MEMBER OF A CLASS ACTION OR REPRESENTATIVE ACTION, AND THAT DESIGNER WILL ONLY SUBMIT DESIGNER’S OWN, INDIVIDUAL CLAIMS IN ARBITRATION AND WILL NOT SEEK TO REPRESENT THE INTERESTS OF ANY OTHER PERSON. 

Procedure. DESIGNER AGREES THAT ANY ARBITRATION WILL BE ADMINISTERED BY JAMS, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (THE “JAMS RULES”). DESIGNER AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO ANY ARBITRATION HEARING. DESIGNER ALSO AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. DESIGNER UNDERSTANDS THAT ZYPSY WILL PAY FOR ANY ADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT DESIGNER SHALL PAY ANY FILING FEES ASSOCIATED WITH ANY ARBITRATION THAT DESIGNER INITIATES, BUT ONLY SO MUCH OF THE FILING FEES AS DESIGNER WOULD HAVE INSTEAD PAID HAD DESIGNER FILED A COMPLAINT IN A COURT OF LAW. DESIGNER AGREES THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH CALIFORNIA LAW, INCLUDING CALIFORNIA CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO RULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH CALIFORNIA LAW, CALIFORNIA LAW SHALL TAKE PRECEDENCE. DESIGNER AGREES THAT THE DECISION OF THE ARBITRATOR SHALL BE IN WRITING. DESIGNER AGREES THAT ANY ARBITRATION HEREUNDER SHALL BE CONDUCTED IN SAN FRANCISCO COUNTY, CALIFORNIA.

Remedy. EXCEPT AS PROVIDED BY THE ACT AND THESE TERMS FOR DESIGNER, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN DESIGNER AND ZYPSY. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER DESIGNER NOR ZYPSY WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.

Administrative Relief. DESIGNER UNDERSTANDS THAT THESE TERMS FOR DESIGNER DO NOT PROHIBIT DESIGNER FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT AGENCY, INCLUDING, BUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION BOARD. THESE TERMS FOR DESIGNER, HOWEVER, PRECLUDE DESIGNER FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM, EXCEPT AS PERMITTED BY LAW.

Voluntary Nature of Agreement. DESIGNER ACKNOWLEDGES AND AGREES THAT DESIGNER IS ACCEPTING THESE TERMS FOR DESIGNER VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY ZYPSY OR ANYONE ELSE. DESIGNER FURTHER ACKNOWLEDGES AND AGREES THAT DESIGNER HAS CAREFULLY READ THESE TERMS FOR DESIGNER AND THAT DESIGNER HAS ASKED ANY QUESTIONS NEEDED FOR DESIGNER TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT OF THESE TERMS FOR DESIGNER AND FULLY UNDERSTAND THEM, INCLUDING THAT DESIGNER IS WAIVING DESIGNER’S RIGHT TO A JURY TRIAL. FINALLY, DESIGNER AGREES THAT DESIGNER HAS BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF DESIGNER’S CHOICE BEFORE ACCEPTING THESE TERMS FOR DESIGNER.