THIS INDEPENDENT CONTRACTOR AGREEMENT (this “Agreement”), is made and entered as of today, but is effective as of January 1st, 2016, (the “Effective Date”), by and between (the “Contractor”) and Victory Marketing Agency, LLC (the “Company”). The Contractor and the Company are referred to individually at times herein as a “party” and collectively at times as the “parties.”
WHEREAS, the Company desires to engage, on the terms and conditions set forth herein,
the Contractor as an independent contractor of the Company; and
WHEREAS, the Contractor desires to be engaged, on the terms and conditions set forth herein, as an independent contractor of the Company.
NOW, THEREFORE, for and in consideration of the terms, conditions and covenants hereinafter set forth, the parties hereby agree as follows:
1. Appointment as Independent Contractor. The Company hereby appoints the Contractor as an independent contractor of the Company, and the Contractor hereby accepts such appointment, all on the terms and conditions set forth herein.
2. Independent Status.
(a) The Company retains the Contractor as an independent contractor to perform those services as agreed upon by the Company and Contractor (“Services”) at the event as specified by the Company or its client(s) (“Event”). The Contractor will not be deemed to be a servant, employee, joint venturer or partner of the Company for any purpose. The Contractor shall not be treated as an employee for federal tax purposes with respect to any services performed for the Company under this Agreement. The Contractor is solely responsible for paying his, her or its own estimated tax payments, self-employment taxes, occupational taxes and other taxes, if any, to the appropriate governmental entities. The Company will not withhold any taxes from payments due the Contractor, nor will the Company provide workers’ compensation insurance coverage for the Contractor. The Contractor further agrees to defend, indemnify and hold the Company, its principals and agents harmless from and against any claims by the Internal Revenue Service or other federal, state or local taxing authority for taxes owed on any of the payments made by the Company to the Contractor or that the Company did not properly withhold on amounts payable to the Contractor, which hold harmless and indemnification will include any penalties assessed against the Company, its principals and agents, any interest and the reasonable attorneys’ fees and costs related thereto.
(b) This Agreement does not constitute a general agency. The Contractor is an independent contractor in respect of the Services contemplated in this Agreement. The Contractor shall not have the right or authority to assume or create any obligation or responsibility, or represent to any third party that the Contractor has the authority to create
such an obligation or responsibility, including, without limitation, legal or financial obligations, on behalf of or in the name of the Company.
3. Term. This Agreement shall commence on the Effective Date and terminate upon completion of the Event, unless earlier terminated by the mutual agreement of the parties or terminated by the Company in accordance with this Section; provided, however, that this Agreement will be reinstated if the Company and the Contractor subsequently agree that the Contractor shall perform Services at subsequent events, in which case the terms of this Agreement shall govern such additional Services. Notwithstanding the foregoing, the Company may terminate this Agreement at any time by providing five (5) business days’ written notice to the Contractor, and the Company may sooner terminate this Agreement without prior written notice in the event that the Contractor: (i) is charged with any crime in connection with the Contractor’s duties or Services under this Agreement; (ii) is convicted of any crime; (iii) takes actions that are contrary to the best interests of the Company; (iv) breaches this Agreement; (v) fails or refuses to attend to the Contractor’s duties and obligations under this Agreement and/or to comply with the written policies or other directives of the Company (all of the aforesaid as determined by the Company in its sole discretion) or (vi) has committed any act of gross negligence or willful misconduct in connection with the Services. The period of time between the Effective Date and the date of termination of the Contractor’s association with the Company shall be referred to herein as the “Term of Service.”
4. Non-Exclusivity. The Contractor agrees to devote the time and effort necessary to the successful performance of this Agreement and the Services as reasonably required. The Contractor may provide services to other persons, companies or organizations so long as those activities do not materially interfere with the performance of the Contractor’s obligations under this Agreement.
5. Compensation. In consideration for the full, prompt and satisfactory performance of all Services to be rendered hereunder (as determined by the Company), the Contractor shall receive compensation and any other payments as agreed to by the parties. All payments to Independent Contractor shall be issued within 90 days after the completion of work performed by Independent Contractor as long as Independent Contractor has completed all necessary documentation and returned said documentation to Victory Marketing Agency. If Client cancels 72-48 hours prior to starttime,VictoryAgencywillcompensatetheContractorupto50%ofscheduledhours. IfClient cancels less than 48 hours prior to event start time, we will compensate up to 100% of the scheduled hours. This will be on a case by case basis at the discretion of Victory Agency.
6. Company and Client Policies. The Contractor agrees that unless otherwise agreed upon by the Company, the Contractor must provide no less than 48-hours’ notice to the Company via telephone at 239-332-7392 if the Contractor is unable to perform or complete any of the Services. The Contractor also agrees that if the Contractor fails to provide such notice or fails to perform or complete any of the Services, the Company will be entitled, at its option, to put Contractor on a probationary period for up to 30 days. The parties also agree that a second infraction of such nature could result in permanent removal of Contractor’s profile from Company’s talent database. The Contractor agrees to comply with the Company’s policies and procedures with respect to independent contractors, including, but not limited to, Company policies regarding documentation required for entitlement to payment. The Contractor agrees to comply with all Company protocols communicated to the Contractor either verbally and/or in writing, as may be amended from time to
time by the Company. The Contractor agrees to abide by such policies and procedures of the Company’s clients that are communicated to the Contractor. The Contractor further agrees to conduct himself, herself or itself with propriety and dignity and not to take actions while performing the Services that could injure the reputation and goodwill of the Company or its clients.
7. Restrictive Covenants and Intellectual Property.
(a) Confidentiality of Company Information. As used in this Agreement, the term “Confidential Information” shall mean any and all information (whether in print, on computer disks or tapes or in any other media, and whether internally generated or used by the Company under contract with any third party) that the Contractor obtains or develops or to which the Contractor has access during his, her or its relationship with the Company, and which has not been publicly disclosed and is not a matter of common knowledge in the areas of business in which the Company or its customers are engaged, including but not limited to customer lists and customer records and technical data (e.g., financial and personnel data), employee and contractor data, information regarding sales, costs, pricing, marketing, contracts with third parties, plans for product or market or service developments or improvements, research records, computer programs, computer interfaces or interface mechanisms, processes, business and strategic plans, financial forecasts or any other information that derives economic value, either directly or indirectly, from being confidential to or trade secrets of the Company or its actual or potential customers.
(b) Contractor Responsibilities. The Contractor agrees that such Confidential Information is and shall remain the property of the Company, and, both during and after the Term of Service, without the prior written consent of the Company: (i) the Contractor will not use or disclose or cause to be disclosed any Confidential Information to any third person, partnership, joint venture, company, corporation, other organization or other third party; (ii) the Contractor will not take from any of the Company’s offices for his, her or its own use or the use of any third party any document, paper, computer-generated media or other property of the Company containing Confidential Information (unless necessary during the Contractor’s relationship with the Company to conduct business in accordance with this Agreement); and (iii) without request upon termination of the Contractor’s relationship with the Company, or at any time that the Company may so request, the Contractor will immediately deliver to the Company at 9961 Interstate Commerce Dr., Suite 160, Fort Myers, Florida 33705 any document, paper, computer-generated media or other property of the Company (and all copies of same) in the Contractor’s possession that contains Confidential Information.
(c) Non-disparagement. The Contractor agrees not to make negative comments or otherwise disparage the Company or its customers, officers, employees, managers, products or services, in any manner likely to be harmful to them or their business, business reputation or personal reputation, unless otherwise authorized by law.
(d) Work Product. The Contractor acknowledges and agrees that all writings, works of authorship, technology, inventions, discoveries, ideas and other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived or reduced to practice by the Contractor individually or jointly with others during
the period of the Contractor’s engagement by the Company and relating in any way to the business or contemplated business, research or development of the Company (regardless of when or where the Work Product is prepared or whose equipment or other resources is used in preparing the same) and all printed, physical and electronic copies, all improvements, rights and claims related to the foregoing, and other tangible embodiments thereof (collectively, “Work Product”), 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”), shall be the sole and exclusive property of the Company.
For purposes of this Agreement, Work Product includes, but is not limited to, Company information, including plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, computer programs, computer and mobile applications, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, client information, customer lists, client lists, manufacturing information, marketing information, advertising information, and sales information.
(e) Work Made for Hire; Assignment. The Contractor acknowledges that, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, the Contractor hereby irrevocably assigns to the Company, for no additional consideration, his, her or its entire right, title and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title or interest in any Work Product 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.
(f) Further Assurances; Power of Attorney. During and after the Contractor’s engagement, the Contractor agrees to reasonably cooperate with the Company to (i) apply for, obtain, perfect and transfer to the Company the Work Product as well as any Intellectual Property Right in the Work Product in any jurisdiction in the world; and (ii) maintain, protect and enforce the same, including, without limitation, executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments and other documents and instruments as shall be requested by the Company. The Contractor hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on the Contractor’s behalf in the Contractor’s name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer,
issuance, prosecution and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if the Contractor does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by the Contractor’s subsequent incapacity.
(g) No License. The Contractor understands that this Agreement does not, and shall not be construed to, grant the Contractor any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software or other tools made available to the Contractor by the Company.
(h) Survival of Provisions. The obligations contained in this Section 7 shall survive the termination or expiration of the Term of Service and Contractor’s association with the Company and shall be fully enforceable thereafter. Any claim the Contractor may have against the Company, whether arising out of this Agreement or otherwise, is independent of and shall not constitute a defense to the enforcement of the obligations in this Section 7.
(a) Indemnification. The Contractor hereby agrees to defend, indemnify and hold harmless each of the Company and its managers, officers, members, employees and agents (collectively, the “Indemnitees”) from and against any and all loss, liability, damage, actions, judgments, awards, penalties, fines, cost or expense (including reasonable attorneys’ fees and costs) related to or arising from (i) bodily injury, death of any person, or damage to real or tangible personal property resulting from Contractor’s acts or omissions or performance of the Services; or (ii) Contractor’s breach of any representation, warranty or obligations under this Agreement (collectively, “Losses”).
(b) Indemnification Procedures. Upon receipt by the Company of notice of a claim, action or proceeding in respect of which indemnity may be sought hereunder, the Company shall promptly notify the Contractor with respect thereto. If in the Company’s judgment there is no conflict of interest between the Contractor and the Company (or any Indemnitee), the Contractor may assume and control the defense of any litigation or proceeding in respect of which indemnity is sought hereunder with counsel reasonably acceptable to Company. If in the Company’s reasonable judgment there is a conflict of interest between Contractor and the Company (or any Indemnitee), the Company shall assume and control the defense of any litigation or proceeding (as it relates to the Company or any such Indemnitee) in respect of which indemnity is sought hereunder with counsel reasonably acceptable to the Company. The Company shall not be liable hereunder or otherwise for any settlement of any claim, action or proceeding effected without its written consent. Nothing contained herein shall prevent the Company from retaining, at its own expense, legal counsel of its choice.
(c) Restriction on Settlement. The Contractor agrees that it will not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification may be sought hereunder (whether
or not the Company or any Indemnitee is an actual or potential party to such claim, action or proceeding) unless the Contractor has given the Company reasonable prior written notice thereof and obtained an unconditional release of the Company and each Indemnitee from all liability arising therefrom.
9. Contractor’s Release of Claims. The Contractor hereby represents that he, she or it intends to irrevocably and unconditionally fully and forever release and discharge any and all claims he, she or it may have, have ever had or may in the future have against the Company that may lawfully be released arising out of or in any way related to the Services provided by the Contractor, including claims for negligence.
10. Cooperation. Upon the receipt of reasonable notice from the Company (including outside counsel), the Contractor agrees that during the Term of Service and thereafter, the Contractor will respond and provide information with regard to matters in which the Contractor has knowledge as a result of the Contractor providing Services to the Company, and will provide reasonable assistance to the Company and its respective representatives, at no expense to the Company, in defense of any claims that may be made against the Company, and will assist the Company in the prosecution of any claims that may be made by the Company, to the extent that such claims may relate to the period of the Contractor’s relationship with the Company. The Contractor agrees to inform the Company promptly if the Contractor becomes aware of any lawsuits involving such claims that may be filed or threatened against the Company. The Contractor also agrees to inform the Company promptly (to the extent that the Contractor is legally permitted to do so) if the Contractor is asked to assist in any investigation of the Company (or its actions), regardless of whether a lawsuit or other proceeding has then been filed against the Company with respect to such investigation, and will not do so unless legally required.
11. Equitable Relief and Other Remedies. The parties acknowledge and agree that the Company’s remedies at law for a breach or threatened breach of any of the covenants in Section 7, 8, 9 or 10, (individually, a “Covenant,” and collectively, the “Covenants”) hereof would be inadequate and cause irreparable injury to the Company and, in recognition of this fact, the parties agree that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, will be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. The Contractor will pay to the Company all of the costs and expenses incurred by the Company in its successful enforcement of any of the provisions of Section 7, 8, 9 or 10 including court costs and reasonable fees and disbursements of counsel and paralegals (before trial, at trial and in appellate proceedings).
12. Additional Representations, Warranties, Covenants and Acknowledgments. (a) Representations and Warranties. The Contractor hereby represents and
warrants as follows:
(i) The Contractor has executed and delivered this Agreement as the Contractor’s free and voluntary act, after having determined that the provisions contained herein are of a material benefit to the Contractor, and that the duties and obligations imposed on the Contractor hereunder are fair and reasonable.
(ii) The Contractor has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement and has had the opportunity to review the terms hereof with an attorney or other representative, if the Contractor so chooses.
(iii) The execution and delivery of this Agreement by the Contractor does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Contractor is a party or by which the Contractor may be bound.
(iv) The Contractor has the required skill, experience, and qualifications to perform the Services, and shall perform the Services in a professional and workmanlike manner in accordance with industry standards for similar services and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner.
(v) The Contractor shall perform the Services in compliance with all applicable federal, state, and local laws and regulations.
(b) Covenants. The Contractor hereby covenants and/or acknowledges as follows:
(i) The Contractor agrees that the Contractor shall generally be responsible for providing all materials used in relation to the Services. However, to the extent that Contractor utilizes any of Company’s or its clients’ materials, Contracts is responsible for any damages to such materials due to negligence, misconduct or misuse and Contractor agrees to repair or replace such materials within a reasonable time frame as determined by the Company. Should the Contractor damage or fail to return any of Company’s or its clients’ materials, the Contractor shall be responsible for all costs and expenses of the Company and/or its clients in connection with such damage or failure.
(ii) The Contractor acknowledges and agrees that the Company may deduct, withhold or setoff from any payments owed to the Contractor under this Agreement any amounts owed by the Contractor to the Company, including, but not limited to such amounts described in Sections 9 and 12(b)(i).
13. Severability. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law. If any court or tribunal determines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such provision, the duration or scope of such provision, as the case may be, will be reduced so that such provision becomes enforceable and, in its reduced form, such provision will then be enforceable and will be enforced. The waiver by the Company of any breach of any provision of this
Agreement will not operate or be construed as a waiver of any other provision of this Agreement or of any subsequent breach of the same or other provision by the Contractor.
14. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed to have been duly given when delivered in person or five (5) business days after having been sent by certified mail or one (1) business day after having been dispatched by a nationally recognized overnight courier service to the appropriate party at the address specified below:
If to the Company:
If to the Contractor:
Victory Marketing Agency, LLC
9961 Interstate Commerce Dr., Suite 160 Fort Myers, Florida 33705
_________________________ _________________________ _________________________ _________________________
or to such other address as a party may have specified in writing to the other party using the procedures specified above in this Section 14.
15. Survival of Certain Obligations. The obligations of the Company and the Contractor set forth in this Agreement that by their terms extend beyond or survive the termination of this Agreement will not be affected or diminished in any way by the termination of this Agreement and will be fully enforceable thereafter.
16. Assignment and Binding Effect. The Contractor may not assign this Agreement without the prior written consent of the Company. The Company may, without the Contractor’s consent, assign this Agreement and/or any obligations hereunder without the prior written consent of the Contractor. The rights, duties and obligations of the Company hereunder will inure to the benefit of, and will be binding upon, the successors and assigns of the Company, including by merger or purchase of all or substantially all of the assets or equity securities of the Company. The Contractor expressly recognizes that this Agreement and the Covenants shall be enforceable by any such assignee or successor, as well as by any third-party beneficiary or entity affiliated with the Company through common ownership or otherwise.
17. Governing Law. This Agreement will be construed pursuant to and governed by the laws of the State of Florida except that the Arbitration Provision will be construed pursuant to the Federal Arbitration Act and the federal substantive law of arbitrability.
18. Dispute Resolution.
(a) Arbitration. The Company and the Contractor agree that any dispute, controversy or claim arising out of or related in any way to the Contractor’s relationship with the Company, the termination of that relationship, this Agreement, and/or any breach of this Agreement, shall be submitted to and decided by binding arbitration in Lee County in the
State of Florida. By beginning or continuing his or her relationship with the Company, the Contractor accepts and consents to be bound by this agreement to arbitrate (the “Arbitration Provision”).
This Arbitration Provision covers all grievances, disputes, claims or causes of action that otherwise could be brought in a federal, state or local court under applicable federal, state or local laws, arising out of or relating to the Contractor’s relationship with the Company and the termination thereof, including claims the Contractor may have against the Company or against its officers, directors, supervisors, managers, employees or agents in their capacity as such or otherwise. The claims covered by this Arbitration Provision include claims or disputes concerning the validity, enforceability, arbitrability or scope of this Arbitration Provision.
The Company and the Contractor expressly intend and agree that: (i) class, collective and/or representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Arbitration Provision; (ii) the Contractor will not assert class, collective and/or representative action claims against the Company or its officers, directors, supervisors, managers, employees or agents in arbitration or otherwise; and (ii) the Contractor shall only submit his/her own, individual claims in arbitration and will not seek to represent the interests of any other person. Further, the Company and the Contractor expressly intend and agree that any claims by the Contractor will not be joined, consolidated or heard together with claims of any other contractor of the Company.
The Arbitrator shall apply the substantive law of the State of Florida or federal law (and the law of remedies, if applicable) as applicable to the claims asserted and shall apply the same rules of evidence as a federal court. Arbitration shall be administered in accordance with the American Arbitration Association (“AAA”) rules in effect at the time the arbitration is commenced. To the extent not provided for in the AAA rules, the Arbitrator has the power to order discovery upon a showing that discovery is necessary for a party to have a fair opportunity to present a claim or defense, and the Arbitrator shall decide all discovery disputes. The Contractor’s agreements to arbitrate and participate only in his/her individual capacity are contracts under the Federal Arbitration Act and any other laws validating such agreements. No failure to strictly enforce these agreements will constitute a waiver or create any future waivers. If any part of this Arbitration Provision is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable portion shall be severed and such adjudication shall not affect the validity of the remainder of this Arbitration Provision and/or this Agreement.
Any arbitral award determination shall be final and binding upon the parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(b) Injunctive Relief. Nothing in the Arbitration Provision and/or this Agreement shall prevent the Company from applying to and obtaining from a court of competent jurisdiction a writ of attachment, a temporary restraining order, a permanent restraining order, a temporary injunction, a permanent injunction, or other injunctive relief available to safeguard and protect the Company’s interests, including but not limited to the Company’s interests in the covenants contained in Section 7 herein. Any action, suit or other proceeding
initiated for these purposes shall be brought in the State of Florida in the Twentieth Judicial Circuit in and for Lee County, Florida or in the United States District Court for the Middle District of Florida and the Contractor agrees to submit himself/herself to the exclusive personal jurisdiction and venue of those courts for such purposes.
19. Captions. Allcaptionsandheadingsusedhereinareforconvenientreferenceonly and do not form part of this Agreement, nor shall they affect the meaning or construction of any of the terms or provisions herein.
20. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same Agreement.
21. Entire Agreement. This Agreement constitutes the entire agreement between parties and it may not be modified or supplemented except by an instrument in writing executed by the Company and the Contractor.
22. Costs. In any legal proceeding between the parties arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs of legal assistants and costs from the other party, which shall include any fees or costs incurred at trial or in any appellate proceeding, and expenses and other costs, including any accounting expenses incurred, unless otherwise prohibited by law.
23. Electronic Signatures. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or e-mail electronic signatures.
24. WAIVER OF JURY TRIAL. COMPANY AND CONTRACTOR UNDERSTAND AND AGREE THAT THEY ARE WAIVING ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED IN ANY WAY TO THE CONTRACTOR’S RELATIONSHIP WITH THE COMPANY, THE TERMINATION OF THAT RELATIONSHIP, THIS AGREEMENT, AND/OR ANY BREACH OF THIS AGREEMENT. COMPANY AND CONTRACTOR EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE WAIVING ANY RIGHT THEY MAY HAVE TO A JURY TRIAL BY SIGNING THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of this day.