In consideration of my continued employment with my current employer (my “Employer”) who has posted my profile on www.colergo.com (together with Neptis LLC and its officers, agents, employees and affiliates, “Colergo”), and the salary and wages paid to me, I agree to be bound by the terms and conditions of this Employee Consent. My Employer is entering into a business relationship with certain parties discovered through Colergo (any such parties shall be referred to herein as “Clients”); such Clients and my Employer have imposed various conditions upon one another that may impact the terms of my employment with my Employer. I agree to accept the following conditions without limitation:
1. To assign and I hereby assign to each respective Client as its exclusive property my entire right, title and interest in and to all inventions, innovations, works of authorship, or ideas developed or conceived by me solely, or jointly with others, at any time I am providing services to any such Client which inventions, innovations, works of authorship, or ideas relate to the actual or anticipated business activities of such Clients or result from, or are suggested by, work which I do for such Client; provided, however, nothing in this Paragraph 1 shall require me to assign any invention that I developed entirely on my own time without using my Employer’s or any Client’s equipment, supplies, facilities, or trade secret information except for those inventions that either (1) relate at the time of conception or reduction to practice of the invention to my Employer’s or any Client’s business, or actual or demonstrably anticipated research or development of my Employer or any Client; or (2) Result from any work I perform for my Employer or any Client.
2. To execute all papers, and otherwise provide proper assistance, at the request of any Client, during and subsequent to the period during which I am providing services to such Client, to obtain patents, copyrights, and legal protections in any country for inventions or innovations arising out of my services performed on behalf of any such Client.
3. Not to use, or to publish, or to divulge to any other person, firm or corporation, in any manner whatsoever, at any time, any Confidential Information of any Clients and/or any of their respective subsidiaries, related or affiliated companies (collectively, “Affiliates”), without the prior written consent of the relevant Client (which consent may be withheld in such Client’s sole discretion). “Confidential Information” of a Client and/or its Affiliates is any information, knowledge, or data I receive from my Employer, a Client or its Affiliates directly or indirectly, in tangible or intangible form, or develop during my employment while providing services to such Client, which is proprietary to such Client or any of its Affiliates or relates to patents, copyrights or trade secrets, hardware, software, designs, drawings, specifications, techniques, processes, data, research, development, content under development, business plans or opportunities, business strategies, finances, costs, vendors, employees or customers of such Client or any of its Affiliates or to third party proprietary or confidential information that such Client or an Affiliate treats as confidential.
4. My opportunities to obtain direct employment with a Client may be limited due to the fact that each Client agrees to pay a placement fee of 150% of my annual base compensation in the event that I terminate my employment relationship with my Employer and enter into an employment relationship with such Client.
5. Following the completion of an assignment for any Client, the relevant Client will have the opportunity to rate my performance, and such ratings will be publicly available to users of the Colergo website.
6. I am entitled to receive no compensation, benefits, perquisites or privileges whatsoever from any Client for services I provide to such Client.
7. I am not entering into an employment relationship with Colergo; Colergo merely enables my Employer to identify Clients; my Employer is responsible for determining the suitability of any Clients, Colergo does not screen, endorse or otherwise guarantee the suitability of any Client. Therefore, to the fullest extent allowed by law, I HEREBY RELEASE, AGREE NOT TO SUE AND AGREE TO INDEMNIFY AND HOLD HARMLESS COLERGO FOR ANY PHYSICAL INJURY, EMOTIONAL INJURY, LOSS, LIABILITY, DAMAGE, EXPENSE OR COSTS (ACTUAL AND CONSEQUENTIAL, KNOWN AND UNKNOWN) I INCUR WHILE PROVIDING SERVICES TO ANY CLIENT. IF I AM IN A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING WAIVER AND RELEASE OF UNKNOWN CLAIMS, THEN I HEREBY WAIVE ANY STATUTORY OR OTHER RIGHTS WITH RESPECT TO UNKNOWN CLAIMS. FOR EXAMPLE, IF I AM IN CALIFORNIA, CALIFORNIA CIVIL CODE § 1542 (AND/OR ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” To the extent applicable, I hereby waive this section of the California Civil Code and any similar provision in law, regulation or code that has the same effect or intent as the foregoing clause.
8. Dispute Resolution and Binding Arbitration.
a. I agree that any dispute that arises out of or relates to this Employee Consent (including, without limitation, any dispute with or claim against my Employer or any Client for which I provide services), or the validity, enforceability, or breach of this Employee Consent (including this section) shall be submitted to binding arbitration in accordance with the Federal Arbitration Act, and not the arbitration act of any state or other jurisdiction, using, in the case of any arbitration between myself and my Employer or any Client, the procedural rules for the resolution of employment disputes of the American Arbitration Association then in effect (regardless of whether any employment relationship then exists or has ever existed between myself and any such Client), or in the case of any arbitration between myself and any other party, the procedural rules for the resolution of consumer disputes of the American Arbitration Associates then in effect. (The rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) Nothing in this Paragraph 8 shall prevent me from filing or maintaining a claim for workers’ compensation, state disability insurance, or unemployment insurance benefits, and nothing in this section shall be construed to prevent or excuse me or my Employer from using existing internal procedures for the resolution of complaints. I may bring claims before administrative agencies when the law permits the agency to adjudicate those claims, even when there is an agreement to arbitrate; examples include claims or charges with the United States Equal Employment Opportunity Commission (or comparable state agency), the National Labor Relations Board, the U.S. Department of Labor, or the Office of Federal Contract Compliance Programs. Nothing in this Paragraph 8 shall require arbitration of disputes that are excluded from coverage by this section or by law.
b. I agree that any dispute in arbitration will be brought on an individual basis only, and not on a class, collective, or representative basis on behalf of others (this agreement to be referred to hereafter as the Class Action Waiver). The Class Action Waiver does not apply to any claim that I bring on behalf of both myself and others regarding wages, hours, working conditions or any other claims constituting protected concerted activity under the National Labor Relations Act.
c. I will not be subject to any retaliation or discrimination if I seek to challenge this arbitration provision or participate in a class, collective, or representative action in any forum, but my Employer, Colergo or any Client to whom I provide services may lawfully seek enforcement of this Employee Consent under the Federal Arbitration Act and seek dismissal of any class, collective, or representative actions or claims to the fullest extent allowed by law.
d. I agree to submit to the jurisdiction of the arbitrator selected in accordance with the American Arbitration Association rules and procedures. If the selection of an arbitrator cannot occur through those procedures, either I or any opposing party may apply to a court of competent jurisdiction in the location where the arbitration is to be conducted to appoint a neutral arbitrator. Unless the applicable rules and procedures of arbitration require otherwise, the parties to the dispute otherwise agree, or the arbitrator determines a hearing is necessary, the arbitration will be conducted solely on the basis of documents submitted to the arbitrator and there shall be no in-person hearing.
e. I expressly waive the right to a jury trial and agree that the arbitrator’s award shall be final and binding, provided that any award shall be reviewable by a court of law to the fullest extent allowed by law, including for any error of law by the arbitrator. The arbitrator shall have discretion to award monetary and other damages, or to award no damages, and to fashion any other relief that the arbitrator considers appropriate, but only to the extent consistent with law. I expressly agree that the arbitrator shall have discretion to award the prevailing party reasonable costs and attorney fees incurred in bringing or defending an action under this Paragraph 8, to the fullest extent allowed by law at the time the arbitration commences. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
f. I shall follow the rules and procedures referred to in subsection d. with respect to initial filing fees, but in the case of any arbitration between me and my Employer or any Client, I will not be responsible for any portion of those fees in excess of the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. In such case, my Employer or Client will pay all costs and expenses unique to arbitration, including the arbitrator’s fees.
9. I am not entering into an employment relationship with any Client, but while working on an assignment for any Client I will follow the instructions, policies and procedures of such Client.
10. If any term or provision of this Employee Consent, or the application thereof to any person or circumstance shall to any extent be held invalid or unenforceable by a court of competent jurisdiction, such result shall not affect the other terms and provisions of this Employee Consent or application thereof which can be given effect without the relevant term, provision or application, and to this end I agree that the provisions of this Employee Consent are and shall be severable.
11. I have read and I understand this Agreement. Colergo and each of the Clients to whom I have provided or will provide services shall be express third party beneficiaries of this Agreement and therefore the commitments made hereunder may not be amended or terminated and may not be waived without the express written consent of Colergo and such Clients.