Contract finalized 2004-04-25. [pere 2004-04-25] ============================================================================ INDEPENDENT CONTRACTOR AGREEMENT This is an independent contractor software development and services agreement. Stiftelsen SLX Debian Labs (hereafter "SDL"), Gaustadalleen 21, N-0349 Oslo, Norway, and Joey Hess (hereafter "Contractor"), 116 Boardwalk, Bristol TN, 37620, USA enter into this agreement as of the last date following the signatures below. 1. DEFINITIONS. A. "Debian Edu" means a custom built Debian distribution for educational use. B. "Skolelinux" means a project with people, documentation, tools for collaboration, etc. where the objective is to develop and deploy a software infrastructure for educational use. Debian Edu is the key software component in Skolelinux. C. "Contractor Software" means any and all software and documentation developed and provided to SDL by Contractor pursuant to this Agreement. D. "Bugs" means errors in a software program that cause the software to fail to function as intended. E. "Source Code" means software in written form which is the preferred form for making modifications to the software and which is easily understood by a human knowledgeable in the art of computer programming. F. "Binary Code" means software in machine-readable form that is not easily understood by a human knowledgeable in the art of computer programming, but which is understood and used by a computer to run the software. K. "Confidential Information" means any information identified as being Confidential Information by either party, either orally or in writing, at the time it is disclosed, or designated as confidential in writing (either electronically or by other means) within 30 days of the disclosure, provided that the information (a) was not publicly known or generally in the public domain prior to the disclosure, (b) does not become generally known or part of the public domain through any improper action or disclosure by the receiving party, or (c) can be shown to have been in the rightful possession of the receiving party prior to having been identified as Confidential Information 9 by the disclosing party. 2. WORK MADE FOR HIRE. A. Contractor shall perform software development and consulting work as follows: Development and support of the Skolelinux/Debian-Edu distribution, including installation, security, improved integration with Debian, and other tasks as needed B. The Source Code to be written by Contractor pursuant to this Agreement shall be a work made for hire, and SDL shall be the sole owner of the copyright of the Source Code. The Source Code will be distributed under the terms of the GNU General Public License or another license fitting the Debian Free Software Guidelines when needed. 3. INDEPENDENT CONTRACTOR. Contractor shall be an independent contractor with respect to SDL. This Agreement shall not render Contractor an employee, partner, agent of, or joint venturer with SDL for any purpose. SDL shall not be responsible for withholding taxes with respect to Contractor's compensation hereunder. Contractor shall have no claim against SDL for vacation pay, sick leave, retirement benefits, social security, worker's compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. 4. PAYMENT. A. In consideration for the work outlined in this Agreement, SDL shall make monthly payments to Contractor in the amount of NOK 33 300. Both parties may modify at any time the amounts to be paid by SDL to Contractor, but any and all such modifications shall be in writing and shall be signed by both parties in order to be effective. B. Payment shall be made in NOK, 10 days upon receipt of a monthly report of the work performed the previous month. Work performed for less than a full month (160 hours) shall be prorated accordingly. Payment shall be made via bank wire transfer, or other means agreed to by both parties. Contractor shall bear the risk of any fluctuation in currency exchange rates. 5. NON-EXCLUSIVITY. This Agreement is a non-exclusive agreement, and both parties remain free to enter into similar agreements with third parties. In the event that Contractor enters into an agreement with a third party in which Contractor performs software development, consulting, or other services related to Linux, Contractor shall inform SDL of that agreement at or before the time he enters into such agreement. Nothing in this section limits or supersedes the provisions of Section 7. 6. QUALITY AND TESTING. Contractor shall thoroughly test the quality of all Source Code and Binary Code it delivers to SDL in accordance with customary practice within the industry. All such code delivered to SDL by Contractor shall be of commercial production quality. SDL shall have the option to test all such code pursuant to its own quality assurance procedures, and may reject any code it reasonably believes does not meet commercial production quality. In the event that Bugs are discovered in the Contractor Software, Contractor will use his best efforts to correct the Bugs in an expeditious manner. 7. CONFIDENTIALITY. A. Both SDL and Contractor agree that during the term of his Agreement, each party, may disclose to the other party certain Confidential Information. Either party may designate any information it provides to the other party as Confidential Information, and the receiving party shall not disclose that information to third parties without the express permission of the disclosing party. Information designated as Confidential Information shall remain confidential until the disclosing party designates it as non-confidential or until the information becomes public through no fault of the receiving party. B. Both SDL and Contractor agree that in the event either party breaches or threatens to breach the provisions of this section, such breach or threatened breach would cause irreparable harm to the non-breaching party, and the non-breaching party would be entitled to injunctive and other equitable relief to prevent such breach or to remedy an actual breach. 8. LIMITED WARRANTY. A. SDL warrants that it has the right and authority to enter into this Agreement, and that it will use its reasonable best efforts to distribute and market Skolelinux and/or Debian Edu. B. Contractor warrants that he has the, right and authority to enter into this Agreement, and that, to the best of his knowledge, Debian Edu does not and will not infringe upon any patent, copyright, trade secret, or other intellectual property interest of any third party. Contractor warrants that he will take all due and reasonable care to avoid infringing any patent, copyright, trade secret, or other intellectual property interest of any third party. 9. ADDITIONAL OBLIGATIONS. Contractor shall establish and maintain sufficient office space, computer hardware, Internet access, and other equipment and services necessary to enable it to perform its obligations under this Agreement in a professional and timely fashion. Any expenses necessary in order to complete the work must be approved in advance by SDL. Upon the termination of this Agreement for any reason, Contractor shall return to SDL all goods paid by SDL. 10. TERM AND TERMINATION This agreement shall begin on the date it is signed by both parties. Either party may terminate this Agreement by written (electronic or other means) notice of termination, which shall be effective upon receipt, at least 15 days in advance of termination. Unless terminated or otherwise amended, the term of this Agreement is one year. 11. INDEMNITY A. Contractor shall defend, indemnify, and hold SDL harmless from and against any liability, suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable attorney's fees) and damages arising from a claim that Contractor Software infringes any third party's patent, copyright, trademark or other intellectual property interest, except as provided in Section ll.B. below. The provisions of this Section shall survive the termination of this Agreement. B. SDL shall defend, indemnify, and hold harmless Contractor from and against any liability, suits, claims, losses, damages and judgments against Contractor made in Norway related to this Agreement, provided that Contractor promptly notifies SDL of any and all such claims and provided that SDL is given control over the defense of any and all such claims. The provisions of this Section shall survive the termination of this Agreement. 12. LIMITATION ON LIABILITY To the extent allowed by applicable law, (A) IN NO EVENT SHALL SDL, ITS BUSINESS PARTNERS, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SDL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. (B) EXCEPT AS PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL SDL, ITS BUSINESS PARTNERS, BE LIABLE FOR ANY CLAIM AGAINST CONTRACTOR BY ANY THIRD PARTY. (C) IN NO EVENT SHALL SDL, ITS BUSINESS PARTNERS, BE LIABLE FOR (i) ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY CONTRACTOR, ITS DISTRIBUTOR, OR ITS AGENTS; (ii) FAILURE OF THE SOFTWARE OR THE PRODUCT TO PERFORM; (iii) FAILURE OF THE SOFTWARE OR THE PRODUCT TO PROVIDE SECURITY; OR (iv) THE RESULTS OR INFORMATION OBTAINED OR DECISIONS MADE BY END USERS OF THE SOFTWARE OR THE PRODUCTS OR THE DOCUMENTATION. THIS LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THE BARGAIN UNDER THIS AGREEMENT. 13. MISCELLANEOUS. A. This Agreement shall be governed by and shall be construed in accordance with the laws of Norway, regardless of its choice of law provisions. Any dispute, controversy or other claim arising out of this Agreement shall be resolved in an appropriate court in Oslo. The parties each agree that they are subject to the Norwegian jurisdiction, and each waives the right to challenge the personal jurisdiction over it. The United Nations Convention on Contracts for the Sale of Goods shall not apply to this Agreement. B. Any notice under this Agreement shall be in English, in writing, and shall be deemed to be given upon receipt. Notices to SDL shall be delivered to SLX Debian Labs, Gaustadalleen 21, N-0349 Oslo, Norway. Notices to Contractor shall be delivered to Joey Hess, 116 Boardwalk, Bristol TN, 37620, USA. C. This Agreement, including all Schedules, constitutes the entire understanding of the parties. This Agreement supersedes and terminates all prior representations, warranties and agreements, written or oral, regarding the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both parties. D. All covenants and obligations of this Agreement shall survive the termination of this Agreement. E. If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions. F. Failure or delay on the part of any party to exercise any right, remedy, power or privilege hereunder will not operate as a waiver. Any waiver must be in writing and signed by the party granting such waiver in order to be effective. G. In the event that SDL is merged with or consolidated into any other entity, or in the event that substantially all of the assets of SDL are sold or otherwise transferred to any other entity, the provisions of this Agreement will be binding upon, and inure to the benefit of, such other entity. Contractor shall not subcontract or assign this Agreement to any third party without the express written consent of SDL. H. Nothing in this Agreement shall be construed to make the parties partners, joint venturers, representatives, or agents of each other, nor shall either party so hold itself out. To show their assent to this Agreement, the duly authorized officers of the parties have signed below. SLX Debian Labs ("SDL") Joey Hess ("Contractor") ------------------------------ ------------------------------ Signature Signature Date: Date: ------------------------ ------------------------