MSA Attachment 16 - IPAWE~2.docx

MSA ATTACHMENT 16 - IPAWE

Intellectual Property and Work Effort Agreement for Vendor’s Employees, Consultants, and Agents Confidentiality, Assignment of Inventions and Representation of Non-Infringement Agreement; Other Representations

The undersigned hereby acknowledges that he or she is an employee or consultant to/of the following vendor of the Commonwealth Health Insurance Connector Authority (the “Health Connector”)

Name of Vendor (“Vendor”):

and desires to be assigned by the Vendor to perform services for the Health Connector, and that the Vendor desires to assign you to perform services on one or more projects for the Health Connector, but only under the condition that you sign this Agreement and agree to be bound by all of its terms and conditions.

NOW THEREFORE, in consideration of your assignment to work for the Health Connector, the access you have to the confidential information of the Health Connector, and for other good and valuable consideration, the parties agree as follows:

1. Confidentiality of the Health Connector’s Materials. You agree that both during your assignment at the Health Connector and thereafter you will not use for your own benefit, or divulge or disclose to anyone except to persons within the Health Connector whose positions require them to know it, any information not already lawfully available to the public concerning the Health Connector (“Confidential Information”), including but not limited to information regarding any website of the Health Connector, any e-commerce products or services, any web development strategy, any financial information or any information regarding users of or vendors to the Health Connector’s websites. Confidential Information also includes, without limitation, any technical data, design, pattern, formula, computer program, source code, object code, algorithm, subroutine, manual, product specification, or plan for a new, revised or existing product or web site; any business, marketing, financial or sales information; and the present or future plans of the Health Connector with respect to the development of its web sites and web services.

2. All Developments the Property of the Health Connector. All confidential, proprietary or other trade secret information and all other works of authorship, trademarks, trade names, discoveries, inventions, processes, methods and improvements, conceived, developed, or otherwise made by you, alone or with others, and in any way relating to the Health Connector or any of its web development projects, whether or not patentable or subject to copyright protection and whether or not reduced to tangible form or reduced to practice during the period of your assignment with the Health Connector (“Developments”) shall be the sole property of the Vendor’s customer, the Health Connector. All copyrightable material contained within a Development during the period of your assignment with the Health Connector are works made for hire. You bear the burden to prove that a work was not made during the period of your assignment with the Health Connector. If a work is determined to not be made for hire or that designation is not sufficient to secure rights, to the fullest extent allowable and for the full term of protection otherwise accorded to you under such law, you shall and hereby irrevocably do, assign and transfer to the Health Connector free from all liens and other encumbrances or restrictions, all right, title and interest you may have or come to have in and to such Development. YOU HEREBY WAIVE IN FAVOR OF THE HEALTH CONNECTOR ANY AND ALL ARTIST’S OR MORAL RIGHTS (INCLUDING, WITHOUT LIMITATION, ALL RIGHTS OF INTEGRITY AND ATTRIBUTION) YOU MAY HAVE PURSUANT TO ANY STATE OR FEDERAL LAWS OF THE UNITED STATES IN RESPECT TO ANY DELIVERABLE AND ALL SIMILAR RIGHTS UNDER THE LAWS OF ALL OTHER APPLICABLE JURISDICTIONS. You agree to disclose all Developments promptly, fully and in writing to the Health Connector promptly after development of the same, and at any time upon request. You agree to, and hereby do assign to the Health Connector all your right, title and interest throughout the world in and to all Developments without any obligation on the part of the Health Connector to pay royalties or any other consideration to you in respect of such Developments. You agree to assist the Vendor’s customer the Health Connector, (without charge, but at no cost to you) to obtain and maintain for itself such rights.

3. Return of the Health Connector’s Materials. At the time of the termination of your assignment with the Health Connector, you agree to return to the Health Connector all Health Connector materials, documents and property, in your possession or control, including without limitation, all materials relating to work done while assigned by the Vendor to projects for Health Connector or relating to the processes and materials of the Health Connector. You also agree to return to the Health Connector all materials concerning past, present and future or potential products and/or services of the Health Connector. You also agree to return to the Health Connector all materials provided by persons doing business with the Health Connector and all teaching materials provided by the Health Connector.

4. Representation of Non-Infringement. You hereby represent and warrant that, to your best knowledge, no software, no web content and no other intellectual property that you develop during your assignment to and deliver to the Health Connector, and no Developments made by you and assigned to the Health Connector pursuant to Section 2 above, shall infringe a patent, copyright, trade secret or other proprietary or intellectual property right of any third party.

5. No Conflicting Agreements. You represent and warrant that you are not a party to any agreement or arrangement which would constitute a conflict of interest with the obligations undertaken hereunder or would prevent you from carrying out your obligations hereunder.

6. Tax Payments. You hereby represent and warrant that you have paid all due state and federal taxes, or, if your tax status is in dispute or in the process of settlement, that you have responded as directed and within the required timeframes to all communications received from the state or federal government.

7. You acknowledge that you are not an employee of any Massachusetts state or municipal government agency, and are not entitled to any benefits, guarantees or other rights granted to state or municipal government agencies, including but not limited to group insurance, disability insurance, paid vacations, sick leave or other leave, retirements plans, health plans, or premium overtime pay. Should you be deemed to be entitled to receive any such benefits by operation of law or otherwise, you expressly waive any claim or entitlement to receiving such benefits from Massachusetts state or municipal government agencies.

8. Miscellaneous:

a. The Health Connector is a third party beneficiary of this Agreement with full rights to enforce its terms directly

b. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, superseding any previous oral or written agreements.

c. Your obligations under this Agreement shall survive the termination of your assignment with the Health Connector regardless of the manner of or reasons for such termination. Your obligations under this Agreement shall be binding upon and shall inure to the benefits of the heirs, assigns, executors, administrators and representatives of the parties.

d. You agree that the terms of this Agreement are reasonable and properly required for the adequate protection of our customer the Health Connector’s legitimate business interests. You agree that in the event that any of the provisions of this Agreement are determined by a court of competent jurisdiction to be contrary to any applicable statute, law, rule, or policy or for any reason unenforceable as written, then such court may modify any of such provisions so as to permit enforcement thereof to the maximum extent permissible as thus modified. Further, you agree that any finding by a court of competent jurisdiction that any provision of this Agreement is contrary to any applicable statute, law, or policy or for any reason unenforceable as written shall have no effect upon any other provisions and all other provisions shall remain in full force and effect.

e. You agree that any breach of this Agreement will cause immediate and irreparable harm to the Vendor’s customer the Health Connector not compensable by monetary damages and that the Health Connector will be entitled to obtain injunctive relief, in addition to all other relief, in any court of competent jurisdiction, to enforce the terms of this Agreement, without having to prove or show any actual damage to the Health Connector.

f. No failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof, and no delay or omission in exercising any right under this Agreement, will operate as a waiver of such terms, covenants, conditions or rights. A waiver or consent given on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.

g. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the doctrine of conflicts of law. This Agreement is executed under seal.

The undersigned believes that this Agreement imposes reasonable standards of conduct for all of the employees, consultants, and agents of the vendor on assignment at the Commonwealth, and that this Agreement will serve to best protect the interests of all involved parties. If you agree with the terms set forth herein, please sign and return this Agreement.

Agreed and Accepted:

Name of Employee, Consultant, or Agent:

Signature:

Date:

Name of Vendor:

Vendor Signature:

Vendor Signatory Name:

Vendor Signatory Title:

Vendor Signature Date: