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1. Instructions.  Client does not have the right  to control  how Contractor performs the Services covered by the Contract;  Client is interested only in the end result.  Detailed specifications of Services, requirements, standards, procedures, schedules, etc. stated in the Contract or otherwise provided by Client are only descriptions of the end result, not instructions as to how work is to be done.

 

 

2. Training.  Contractor already knows  generally  how to perform the Services without the need for training by Client. However, it may be necessary for Client to provide manuals, documentation, or training relevant to the unique nature of  Client's business,  or Client's existing systems,  or Client's particular problem  to be solved by Contractor.  This is all considered part of the process of describing what Contractor is to do,  not how to do it.

 

 

3. Integration.  Although Client and Contractor both believe that the Services performed by Contractor  will benefit Client,  those Services are not  an integral part of Client's business  and will not  ensure  the  overall success of that  business;   nor  would Contractor's  failure  to perform the Services  in and of  itself cause Client's business to fail.

 

 

 

4. Personnel.  Client does not have the right  to select which of Contractor's Personnel (owners, officers, partners, members, employees, or subcontractors)  will actually perform the Services  on behalf of Contractor; only Contractor has the right to assign its Personnel to specific projects. Any part of Contract or attachments thereto naming specific Personnel are to be considered only as examples to illustrate the qualifications and experience expected by Client.  However,  if Client's security regulations require that all assigned Personnel pass  a security clearance or other screening process,  or Client's normal policies require that all personnel supplied or assigned by vendors doing business similar to Contractor be further qualified or approved by Client, Contractor is free  to cooperate fully with Client in this area  without being deemed to have waived its right to select its own Personnel for use on this Contract.  This Contract is not a Personal Services Contract and it is understood that neither Contractor nor any of its component parts  is either a Personal Services Corporation or a Personal Holding Company.  If Client is or becomes dissatisfied with any of Contractor's Personnel, this in and of itself is not the same as dissatisfaction with Contractor, since Contractor is free to replace or augment Personnel as needed.

 

 

5. Assistants. Client does not provide subordinates to Contractor to enable Contractor to perform Services; Contractor must obtain, control, and pay its own Personnel according to Contractor's own judgment as to what resources are required for Contractor to be able to perform Services. However, Client must provide Contractor with whatever access to Client's facilities and staff (and their cooperation) is needed to avoid impeding Contractor's ability to perform Services.

 

 

6. Duration. Contract is temporary and is intended to address one or more specific needs of Client. Even if Contract is extended or renewed or additional contracts are negotiated, this is not to be construed as indicating  a permanent relationship  between Client and Contractor.

 

 

7. Hours.  Only Contractor, not Client,  has the right to control when Contractor or Contractor's Personnel  work on Contract.  Because Client may have other projects which interface or interact with the Services to be performed by Contractor, any schedules or deadlines  specified under Services  are part of the end result to be delivered,  and are not intended to control  how Contractor manages its time. However,  if availability of or access to Client's facilities is limited to certain hours for security, technical, or other reasons, Contractor is allowed to observe such restrictions or limitations without being deemed to have waived its right to manage its own time.

 

 

8. Time.  Client cannot require either Contractor  nor any of its Personnel to devote full time to this Contract. Contractor may of course schedule its resources considering the convenience of Client, Contractor, and its Personnel without being deemed to have waived its own rights.

 

 

9. Location.  Client cannot require Contractor to perform work at Client's location if the work can be performed at Contractor's or any other location more convenient to Contractor or Personnel. If Client's security regulations  or  technical or other limitations make it infeasible to access Client's personnel, data, systems, or any other needed facilities  from off site,  Contractor may allow such work  to be performed at Client's location without being deemed to have waived its right to perform all feasible work at Contractor's own or other location. If any work is performed on site, Client's presence there is not for the purpose of supervising Contractor's work but is to ensure Client's availability to Contractor and to enforce Client's own security regulations, and Contractor's rights under Contract or law regarding its work product shall not be impaired thereby.

 

 

10. Sequence. Client does not have the right to control the order or sequence in which Contractor performs  detailed tasks relating to Services;  Contractor using its professional judgment controls how it performs its work.  However,  the nature of the end result desired by Client may require a schedule of major deliverables or other milestones to be included in the specification of Services, especially if portions of the work will be needed early to interface with Client's other projects; this is part of the end result itself and is not telling Contractor how to do its own job.

 

 

11. Reports. Client generally does not require Contractor to give reports on its detailed progress. However, Deliverables may include reports documenting the work performed and showing the completion of major milestones; these reports are part of the end result. It may also be necessary for Contractor to inform Client of problems encountered from time to time during the work,  especially  given the nature of software development in general. Also, Contractor may find it more convenient to interact with Client's personnel at specific times, depending on availability. None of these are to be construed as Client controlling Contractor by requiring any frequent or regular detailed progress reports.

 

 

12. Payment.  Payments to Contractor by Client  are determined by Contract, with schedules negotiated by both Client and Contractor to protect the interests  of both parties.  Even if payments are made in fixed amounts or by the hour or at regular intervals,  or if Contractor receives or has received advances or retainers from Client,  this is not indicative of  control or support by Client, because both Contractor and Client are obligated to each other by the terms of Contract.

 

 

13. Expenses.  Even if Client pays (or reimburses Contractor for) any or all expenses relating to Contract, e.g. travel expenses or unusual or large expenses, this may be due to Client's regulations or due to the nature of  Client's business or  the end result desired by Client, and/or may be customary in the software contracting industry. This is not to be construed as  the exercise of control by Client over Contractor.  Sometimes,  this is the only fair way to handle certain expenses, especially those which cannot easily be anticipated.

 

 

14. Materials. Contractor provides any software or other tools or materials required to perform the usual work of its business, but it is not expected that Contractor would provide extremely costly items (such as mainframe computers) or items applicable only to a few clients or contracts. Such unique or expensive items normally are provided by Client in the software contracting industry, and this is not indicative of control by Client over Contractor. Such items as manuals describing the specifics of software at Client's location, or special terminals, communications software, or other access requirements unique to Client,  are typically provided  by the client in these situations.

 

 

15. Investment.  Contractor has made a significant investment  in Contractor's business and equipment and training of its Personnel. Even if Client provides any facilities or equipment to be used by Contractor, this is because of Client's security requirements and/or the unique nature of the problem to be solved by Contractor for Client, or is for Client’s own convenience.

 

 

16. Risk.  Contractor is at risk of suffering a loss on Contract, rather than making a profit, depending on Contractor's ability to properly estimate resources required to perform Services,  on how well Client understands and communicates its requirements, and on unforeseen factors beyond the control of Contractor.  Of course, Contractor has the right to do everything it can to minimize its risk of loss.

 

 

17. Multiple clients.  Contractor has the right to continue doing business and/or attempting to do business  with multiple clients.  The existence of this Contract does not prevent Contractor or its Personnel from working on other contracts or placements for Client or others (subject to any reasonable non-compete agreements which apply).

 

 

18. Presence.  Contractor has always  made its services available to the general public and has invested significant time and money in marketing, establishing a business presence, incorporating, paying taxes, seeking qualified Personnel,  and complying with  all known requirements  for doing business in this field.

 

 

19. Termination by Client.  Client does not have the right to end Contract without fulfilling  all its obligations  under Contract, except in the event of default by Contractor as provided by terms of Contract. Any exceptions in Contract must be reciprocal or otherwise offset by other provisions or penalties. For example, Contract may specify that any personnel of either party (Contractor or Client) may be immediately removed for gross misconduct (e.g. deliberate damage to the other party's personnel or facilities), to be replaced as soon as feasible; this does not imply termination of Contract. Similarly, Contract may specify that either party may cancel Contract at certain milestones, or by giving the same amount of notice or early cancellation fee. Such provisions are not evidence of Client control over Contractor.

 

 

20. Termination by Contractor. Contractor does not have the right to avoid fulfilling its obligations under Contract except in case of default by Client as provided by Contract.  Any exceptions should be symmetrical as noted above under Termination by Client.