These Independent Contractor Agreement Terms and Conditions (“Terms” and, collectively, with the applicable Independent Contractor Agreement, this “Agreement”) governs all services (the “Services”) provided by the independent contractor (“Contractor”) to the company as listed on the applicable Independent Contractor Agreement (“Company”).
This Agreement comprises the entire agreement between the Company and Contractor with respect to all Services, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Subject to the terms and conditions of this Agreement, the Company hereby engages Contractor, and Contractor hereby accepts such engagement, to perform the Services during the term specified in the Independent Contractor Agreement (the “Term”).
- Engagement; Services. Subject to Sections 5 and 6, Contractor’s performance of the Services will be non-exclusive. Contractor hereby acknowledges and agrees that Contractor will personally perform the Services and all of Contractor’s obligations pursuant to this Agreement.
Contractor covenants, represents and warrants that: (i) Contractor’s performance under this Agreement does not and will not violate or breach any duty or obligation owed to any other person or entity, and Contractor is not subject to any obligations to others which would be inconsistent with any provision of this Agreement; (ii) Contractor is currently in compliance with and will continue to comply with all applicable federal, state and local statutes, laws, regulations, rules, judgments, orders and decrees (collectively, whether currently in existence or hereafter enacted or promulgated and as amended from time to time, “Laws”); (iii) Contractor, the Services and any Results (as defined below) will not violate any third-party rights, including any copyright, trademark, patent, rights of privacy or publicity, trade secrets, moral rights or other intellectual property rights or any Laws; (iv) Contractor has obtained all proper permits, licenses, consents, registrations or approvals required to perform the Services, including any VISAs, or other permissions or approvals required by applicable Laws, including immigration laws; (v) Contractor and any permitted Contractor personnel will comply with the Company’s security and safety policies; and (vi) Contractor will discharge Contractor’s duties under this Agreement diligently, in good faith, in a timely, professional and workmanlike manner, in accordance with industry standards and best practices, and will otherwise conduct business in a manner that reflects favorably at all times on the good name, goodwill and reputation of the Company. If and to the extent Contractor will interface directly with any of the Company’s clients, Contractor will at all times comply with the Company’s policies, procedures and instructions regarding the same, and will in no event make any representations, warranties, guarantees, indemnities, claims, or other commitments on the Company’s behalf, or concerning or relating to the Company’s services, that are in addition to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, claims, or other commitments made by the Company without the Company’s prior written consent.
- Post Termination Obligations. Upon expiration or termination of the Term for any reason, Contractor will immediately either return all Confidential Information (as defined below) to the Company (including all tangible documents and materials, including copies, containing, reflecting incorporating or based on Confidential Information) or certify the same to the Company in writing as being permanently destroyed. Furthermore, if the Company terminates the Term without cause, then the Company will pay Contractor applicable fees for Services actually provided and received and accepted by the Company within 14 days of the Company’s notice to Contractor of such termination. Sections 1 through 12 (inclusive), as well as any other provision of this Agreement that, by its terms, should reasonably be expected to survive termination, will survive termination of this Agreement.
- Independent Contractor Status.
a. Independent Contractor Relationship. This Agreement is intended to create an independent contractor relationship between Contractor and the Company and will be interpreted to effectuate such intent. Contractor will not under any circumstances be deemed to be an employee or affiliate of the Company for any purposes, including federal tax purposes. Contractor will not represent that Contractor is an employee or affiliate of the Company and will at all times represent Contractor as an independent contractor of the Company. Neither party will have the authority to bind the other by any promise, agreement or representation, oral or written, unless specifically authorized in a writing bearing an authorized signature of such party. Contractor will not represent that Contractor has authority to bind the Company to any contract or obligation.
b. Contractor Determines Means and Methods. Except as expressly set forth in this Agreement, Contractor will be solely responsible for determining the means and methods for performing the Services. Without limiting the generality of the foregoing, Contractor: (i) will determine the time, place and manner in which it will provide the Services within the overall schedule established by the Company; (ii) will not be required to follow or establish a regular or daily work schedule; and (iii) will not rely on the equipment or offices of the Company for completion of tasks and duties under this Agreement, though an office or supplies may be made available for use by Contractor when interaction with the Company’s employees is necessary to complete the Services.
c. Company will not Withhold Taxes; No Benefits. The Company will not withhold any taxes from any payments made to Contractor pursuant to this Agreement. The Company has not, is not, and will not be obligated to make, and it is the sole responsibility of Contractor to make, all periodic filings and payments required to be made in connection with any withholding taxes, FICA taxes, federal unemployment taxes, and any other federal, state or local taxes, payments or filings required to be paid, made or maintained in connection with any payments made to Contractor by the Company. Contractor will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees.
- Proprietary Rights.
a. Results. Contractor acknowledges and agrees that all writings, works of authorship, technology, inventions, discoveries, processes, techniques, know-how, methods, templates, ideas, concepts, research, proposals, materials and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived or reduced to practice by Contractor individually or jointly with others during the Term either (y) as a result of Contractor’s engagement by the Company or (z) otherwise related in any way to the business or contemplated business, products, activities, research or development of the Company, in either case, regardless of when or where prepared or whose equipment or other resources are used in preparing the same, all rights and claims related to the foregoing, and all printed, physical and electronic copies, all improvements, and other tangible embodiments thereof (collectively, “Results”), as well as any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), mask works, patents and other intellectual property rights therein arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto, including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, reissues, extensions and renewals thereof (collectively, “Intellectual Property Rights”), are and will be the Company’s sole and exclusive property. The Results and all related Intellectual Property Rights are and will at all times remain the Confidential Information of the Company. During Contractor’s engagement and, if applicable, after Contractor’s engagement, Contractor will promptly make written disclosures to the Company of all Results.
b. All Results Deemed Works-Made-for-Hire; Assignment and Waiver. To the extent permitted by Law, all Results consisting of copyrightable subject matter will be deemed “works for hire” or “works made for hire,” within the meaning of the United States Copyright Act of 1976, for the benefit of the Company. The Company will be deemed the sole owner throughout the universe of any and all such works-made-for-hire, whether or not now or hereafter known, existing, contemplated, recognized or developed, with the right to use the same in perpetuity in any manner the Company, in its sole and absolute discretion, determines, without any further payment or compensation to Contractor whatsoever. If the foregoing does not apply to certain Results, Contractor hereby irrevocably assigns to the Company, and its successors and assigns, for no additional consideration, Contractor’s entire right, title and interest in and to all Results and Intellectual Property Rights therein, whether or not now or hereafter known, existing, contemplated, recognized or developed, and the Company will have the right to use the same in perpetuity throughout the universe in any manner it determines, in its sole discretion, without any further payment or compensation to Contractor whatsoever. To the extent Contractor has any rights in the Results or Intellectual Property Rights that cannot be assigned in the manner described in the preceding sentence, Contractor hereby unconditionally and irrevocably waives the enforcement of such rights. If copyrights are assigned under this Agreement, Contractor hereby irrevocably waives in favor of the Company, to the extent permitted by Law, any and all claims that Contractor may now or hereafter have in any jurisdiction to all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as “moral rights” with respect to all Results and all Intellectual Property Rights therein. Nothing contained in this Agreement will be construed to reduce or limit the Company’s rights, title or interest in any Results or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.
c. Further Assurances; No License. During and after Contractor’s engagement, Contractor will cooperate with the Company to do any and all things which the Company may deem useful, necessary or desirable to establish, maintain, protect and enforce the Company’s exclusive ownership of any and all rights in any Results or works-made-for-hire. Contractor understands that this Agreement does and will not, and will not be construed to, grant Contractor any license, interest or right of any nature with respect to any Results, Intellectual Property Rights therein, or Confidential Information, materials, software or other tools made available to Contractor by the Company.
d. Warranty. Contractor represents and warrants that all Results will not infringe, misappropriate, or otherwise violate any intellectual property rights or other rights of any third party and will comply with all applicable Laws.
- Confidential Information. Contractor acknowledges and agrees that Contractor may be provided access to and be entrusted and required to work with Confidential Information belonging to the Company or other third parties (including the Company’s clients, referral partners and other third parties), which information the Company is under an obligation to protect and keep confidential.
a. Confidential Information. “Confidential Information” means, collectively, confidential, secret or proprietary documents, materials, data and other information, in tangible and intangible form, and in spoken, printed or electronic or any other form or medium, of or relating to the Company, including its affiliates and subsidiaries, (or to another person or entity that has entrusted such information to the Company in confidence, including the Company’s clients), its or their respective businesses or products, or its or their respective existing and prospective clients, customers, suppliers, vendors, referral partners, broker partners, investors or other associated third parties, whether marked “confidential” or not, and including any Results, trade secrets, intellectual property, technology, software, manuals, internal policies and personal/personnel information, internal communications of member(s) of the Company, information concerning the financial structure of members of the Company, financial data and information, pricing, information concerning revenue sharing, partner agreements, client agreements, marketing data, plans and information, business plans and strategies, product or service offerings, methods of operation and operating procedures, accounting records, potential or pending transactions, sales, mergers or acquisitions (including any term sheet, letter of intent or similar indication of interest setting forth pricing or any other terms), expansion plans, lists of customers, clients, sponsors, exhibitors, advertisers or volunteers, client or customer prospects, sales strategies, budgets, revenues, expenses, contract terms, contract negotiations, compensation information, processes, employee or contractor responsibilities and duties, databases, ISP information and other information that would potentially damage or interfere, in any manner, with the business of the Company (or its affiliates) if disclosed. Additionally, all of the terms and conditions of this Agreement are Confidential Information; provided, however, that Contractor may discuss these items as required with its legal, accounting, and other advisors.
i. Contractor understands that the above list is not exhaustive, and that Confidential Information also includes confidential or proprietary information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Confidential Information, and all copies and manifestations of the Confidential Information in any medium, are, and will remain at all times, the exclusive property of the Company.
ii. Except as required by applicable law or regulation, the term “Confidential Information” will not include information that, as evidenced by written documentation: (A) is or becomes generally known to the public without breach of any obligation owed to the Company, or any third party; (B) was known to the recipient prior to its disclosure by the Company without any obligation of confidentiality owed to the Company or any third party; or (C) is received by the recipient from a third party without any obligation of confidentiality owed to the Company or any third party.
b. Restrictions. Contractor agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow it to be disclosed, published, communicated or made available, in whole or part, to any person whatsoever, including employees of the Company not having a need and authority to know and use the Confidential Information in connection with the business of the Company and not to anyone outside of the direct employ of the Company except with the prior consent of an officer of the Company, in each case, provided that such other employee or third party is bound by confidentiality obligations at least as restrictive as those contained in this Agreement, and such disclosure shall be made only within the limits and to the extent of such need, authority or consent, as applicable; and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media or other resources containing any Confidential Information, or remove any such documents, records, files, media or other resources from the premises or control of the Company, except as required in the performance of Contractor’s authorized duties to the Company or with the prior consent of an officer of the Company, in each instance provided that such disclosure shall be made only within the limits and to the extent of such duties or consent.
c. Term of Confidentiality Obligations. Contractor understands and acknowledges that Contractor’s obligations under this Agreement with regard to any particular Confidential Information will be deemed to have commenced immediately upon Contractor first having access to such Confidential Information (whether before or after the Effective Date) and will continue during and after the term of this Agreement until such time as such Confidential Information ceases to be Confidential Information under Section 5(a)(ii).
d. No Conflict with Legal Rights or Obligations. Nothing in this Agreement will be construed to prevent disclosure of Confidential Information as may be required by applicable Law, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such Law, regulation or order, and that Contractor will provide prompt written notice of any such order to an officer of the Company and cooperate with the Company in its efforts to maintain the confidentiality of such Confidential Information.
e. Contractor’s Third-Party Confidential Information and Obligations. Contractor has not and will not, at any time, improperly use or disclose any proprietary information of any former or current employer or other person or entity with which Contractor has any agreement or duty to keep in confidence information acquired by Contractor, if any. Contractor covenants that Contractor is not subject to any restrictive covenant or similar restriction or obligation that would in any way inhibit, restrict or prevent Contractor from the full performance of his/her/its duties under this Agreement, and that Contractor will not become subject to any such restrictive covenant or similar restriction or obligation at any time during the Term.
- Covenants.
a. Non-Solicitation. Contractor covenants and agrees that, while engaged by the Company and for a period of two years after the termination of this Agreement for any reason and no matter which party is the terminating party, neither Contractor nor any company or other entity or individual controlled by Contractor (whether currently existing or hereafter acquired or formed) will, directly or indirectly, in any capacity: (i) contact, solicit, attempt to contact or solicit, solicit for hire or engagement, hire or engage any employee, contractor or volunteer then or within the prior twelve (12) months employed or engaged by the Company, or any of the Company’s affiliates, for any reason whatsoever; (ii) solicit or induce, provide services to, or accept business from, or attempt to solicit, induce, provide services to or accept business from, (A) any customer, client, sponsor, exhibitor, advertiser, volunteer, or vendor of the Company or any of the Company’s affiliates (including any prior customer, client, sponsor, exhibitor, advertiser, volunteer, or vendor of the Company or any of the Company’s affiliates), or (B) any prospective or potential customer, client, sponsor, exhibitor, advertiser, volunteer, or vendor of the Company or the Company’s affiliates that Contractor communicated with at any time within the 12-months prior to the termination of this Agreement with respect to services or products that are the same as, or substantially similar to, or competitive with, the services or products offered by the Company (or its affiliates) and whether or not contact or other communication is or was initiated by Contractor or the Company’s client(s), vendor(s) or any other third party; or (iii) otherwise tortuously or otherwise unlawfully impede or interfere in any way with any customer, client or other business relationship of the Company or any of the Company’s affiliates.
b. Non-Disparagement. Contractor covenants and agrees that Contractor will not during the term of this Agreement and thereafter make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning the Company or its businesses or affiliates, or any of its or their respective employees, volunteers, sponsors, advertisers, consultants, sales agents, officers, directors, members, principals, owners, representatives, investors, investment bankers, accountants, lawyers, influencers, and existing and prospective customers, clients, vendors, suppliers, and other associated third parties. The previous sentence does not, in any way, restrict or impede Contractor from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any Law, provided that such compliance does not exceed that required by the Law. Contractor will promptly provide written notice of any such order to an authorized officer of the Company.
c. Other Business Activities. Contractor covenants and agrees that during the term of this Agreement Contractor will not be engaged or employed in any business, trade, profession, or other activity that would create a conflict of interest with the Company. If any such actual or potential conflict arises during the term of this Agreement, Contractor will immediately notify the Company in writing. If the Company determines, in its sole discretion, that the conflict is material, the Company may terminate this Agreement upon written notice to Contractor.
- Enforceability of Restrictive Covenants.
a. Independent Covenant. Contractor acknowledges and agrees that each of the provisions in Section 5 and Section 6 (each, a “Restrictive Covenant,” and collectively, “Restrictive Covenants”), is independent of any other agreement between the Company and Contractor and of any other provision of this Agreement. The existence of any claim or cause of action that Contractor may have against the Company, whether predicated upon this Agreement or otherwise, will not constitute a defense to the enforcement of any Restrictive Covenant.
b. Consideration. Contractor acknowledges and agrees that each Restrictive Covenant is given and made by Contractor to induce the Company to engage Contractor and to enter into this Agreement, and Contractor further acknowledges and agrees: (i) to the sufficiency of the consideration for the Restrictive Covenant provisions; (ii) the Company has fully performed all obligations entitling it to the Restrictive Covenants provisions, and the Restrictive Covenants provisions, therefore, are not executory or otherwise subject to rejection under the United States Bankruptcy Code; (iii) each Restrictive Covenant provision is a reasonable and necessary restraint of trade; (iv) each Restrictive Covenant provision is supported by valid business interests, including the Company’s (and its affiliates’) need to protect its and their goodwill, Confidential Information and relationships with its and their employees, clients, customers, vendors and suppliers; and (v) the period and geographic restriction for each Restrictive Covenant provision is reasonable and necessary to protect the Company’s (and its affiliates’) valid business interests.
c. Toll Period. If Contractor violates any provision of this Agreement for which there is a specific time period during which Contractor is prohibited from taking certain actions or from engaging in certain activities, then such violation will automatically toll the running of such time period from the date of such violation until such violation will cease.
d. No Prior Restrictions. Contractor represents and warrants to the Company that Contractor’s engagement by the Company will not violate, or cause Contractor to be in breach of, any obligation or covenant made to any former employer or other third party, and that during the course of Contractor’s engagement by the Company, Contractor will not take any action that would violate or breach any legal obligation which Contractor may have to any former employer or other third party.
e. Equitable Remedies. In the event of a breach or threatened breach of any Restrictive Covenant provision, Contractor hereby consents and agrees that the Company will be entitled to, in addition to (and not in lieu of) other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security.
- Indemnification. Contractor will indemnify, defend and hold the Company, its affiliates, and its and their respective members, managers, officers, directors, employees, contractors, agents and other representatives harmless from and against any and all liabilities, losses, damages, claims, demands, actions and rights of action, costs and expenses (including attorneys’ and paralegals’ fees and costs, whether suit is instituted or not, and the costs of enforcing any right to indemnification hereunder) arising, directly or indirectly, out of: (a) a breach of any obligation, representation or warranty in this Agreement by Contractor; (b) fraud, misrepresentation, willful misconduct or negligence by Contractor; or (c) the Services performed or Results developed or provided pursuant to this Agreement.
- Notices. All notices, demands, requests or other communications which may be or are required to be given, served, or sent by any party to any other party pursuant to this Agreement will be in writing and will be hand delivered, sent by certified mail, return receipt requested, sent by widely-recognized national or international delivery courier service or sent via email, addressed as set forth on the signature page of the applicable independent contractor agreement or at such other address indicated by a party, in writing. Documents delivered by hand will be deemed to have been received upon delivery; documents sent by email will be deemed to have been received upon confirmation of transmission; documents sent by certified mail, or courier service will be deemed to have been received upon their receipt, or at such time as delivery is refused by the addressee upon presentation. Either party may change the address for notice by notifying the other parties of such change in accordance with this Section.
- Dispute Resolution. This Agreement will be governed in all respects by the laws of the State of Florida without regard to conflicts-of-law principles. Any civil action or legal proceeding arising out of or relating to this Agreement will be brought exclusively in the courts of record of the State of Florida located in Palm Beach County, Florida, or the United States District Court, Southern District of Florida, West Palm Beach Division. Each party consents to the exclusive jurisdiction of such Florida courts in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such courts. If any legal action or other proceeding is brought by the Company for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation by Contractor in connection with any provision of this Agreement, the Company, if successful in such legal action or other proceeding, will be entitled to recover reasonable attorneys’ fees, court costs and all expenses even if not taxable as court costs (including all such fees, taxes, costs and expenses incident to appellate, bankruptcy and post-judgment proceedings), incurred in that action or proceeding, in addition to any other relief to which the Company may be entitled. IN ANY CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR RELATES TO THIS AGREEMENT, THE PERFORMANCE OF THIS AGREEMENT, OR THE RELATIONSHIP CREATED BY THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, TRIAL WILL BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY.
- Assignment. Contractor may not assign this Agreement or any of Contractor’s obligations set forth in this Agreement without the Company’s prior written consent. Any purported assignment by Contractor in violation of this Section will be automatically null and void.
- Miscellaneous. These Terms may be amended or changed by the Company upon notice to Contractor. Except as set forth in this Agreement (including the immediately preceding sentence), this Agreement may be amended only by a writing that expressly identifies itself as an amendment and that is executed by the Company and Contractor. No delay or omission by the Company to exercise any right or power under this Agreement will impair any such right or power or be construed as a waiver thereof. A waiver by the Company in any one instance of any of the covenants, conditions or agreements to be performed by Contractor will not be construed as a waiver with respect to any succeeding instance in which the same provision may apply. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement and will not limit or otherwise affect in any way its meaning or interpretation. Except as expressly set forth herein, this Agreement is for the sole benefit of the parties and their respective permitted successors and permitted assigns and nothing herein, is intended to or will confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this Agreement, which will remain in full force and effect. This Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and supersedes all other negotiations, understandings and representations (if any) made by and between such parties, whether orally or in writing. This Agreement may be executed in counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. Confirmation of execution by an electronic transmission signature page or other electronic execution means will be binding, and each party irrevocably waives any objection that it has or may have in the future as to the validity of any such electronic execution. For purposes of this Agreement, (i) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; and (ii) the word “or” is not exclusive.
