INDEPENDENT CONTRACTOR AGREEMENT

Transcription

1 INDEPENDENT CONTRACTOR AGREEMENT This Agreement is made between FITBOUND, LLC (the Company ) with a mailing address of 1510 Emerson Avenue, McLean, VA and ( Contractor ) as follows: (full name of independent contractor, and all nicknames) (social security number) (date of birth) (drivers license number) with a principal residence at: and contact information as follows: (address, city, state, zip) ( address) (cell phone) (alternate phone) Section 1. Engagement of Contractor. Subject to the terms of this agreement, the Company engages the Contractor as an independent contractor to perform the services provided under this agreement. The Contractor accepts this engagement. Section 2. Services, Term, Compensation, and Expenses. (a) The Contractor agrees to and will provide the following services to the Company: Accurately identify level of education, designation, expertise and certification (if any) Permit the Company to perform a background check based on the signature and information on this Agreement Perform services as trained by and on behalf of the Company Compensation as agreed upon between Contractor and Company (b) The term of this agreement is beginning October 1, 2010 and will continue until either party gives written notice of its intention not to renew ninety (90) days before expiration. (c) This Agreement and the Contractor s engagement hereunder may be terminated as follows: (i) At any time at the will and sole discretion of the Contractor by the Contractor giving the Company written notice of at least ninety (90) days before the effective date of such termination (ii) At any time at the will and sole discretion of the Company with or without cause by the Company giving the Contractor written notice at least ninety (90) days before the effective date of such termination Page 1 of 5

2 (iii) At any time for cause, by the Company giving the Contractor written notice setting forth in reasonable detail the basis for such termination, which termination shall be effective immediately upon the giving of such notice. For purposes of this Paragraph 2(c)(iii), cause shall mean (i) any act of personal dishonesty taken by the Contractor in connection with its responsibilities under this Agreement, (ii) the Contractor s conviction of a felony or (iii) the Contractor s conviction of an offense that the Company determines disqualifies that person from providing services, required under this Agreement, to children, which the Company reasonably believes have had or will have a material detrimental effect on the Company's reputation or business or that of the Company s affiliates, (iv) gross negligence or a willful act by the Contractor which is deemed by the Company to constitute misconduct and is injurious to the Company or to its affiliates, and (v) continued failure to perform by the Contractor its obligations to the Company after there has been delivered to the Contractor a written demand for performance from the Contractor which describes the basis for the Company's belief that the Contractor has not substantially performed its duties. Section 3. Non-Solicitation and Non-Compete. During the Contractor s engagement under this Agreement and for a period of one (1) year after termination of the Contractor s engagement, the Contractor shall not directly or indirectly do any of the following that the Contractor hereby acknowledges would adversely affect the current business activities of the Company: (i) solicit, direct or take away the business or patronage of, any then existing or identified prospective clients, customers or accounts of the Company or its affiliates; (ii) conduct business with, or interfere in the contracts or relationships of the Company or its affiliates with, any then existing or identified prospective clients, customers or accounts of the Company or its affiliates or without the prior consent of the Company, or (iii) recruit or induce any employee or contractor of the Company to terminate or otherwise cease his or her employment relationship with the Company or any of its affiliates. The foregoing restrictions shall apply to the Contractor when acting directly or indirectly, individually, as an equity owner, partner, or member, as an employee, agent, manager, officer, director or joint venture partner, or in any other capacity whatsoever. The Contractor agrees that it shall be responsible for all costs and expenses, including without limitation attorney fees and legal expenses, actually incurred by the Company in enforcing the restrictions of this Paragraph 3. Section 4. Confidentiality. Each party shall keep confidential any Proprietary Information not otherwise generally available to the public that it may acquire as a result of or in connection with this Agreement regarding the business and affairs of the other or of any third party to whom the disclosing party has an obligation of confidentiality. For purposes of this Agreement, Proprietary Information means financial information, data and analyses, books and records, business and marketing activities and plans, personnel data, computer programs and data bases, client and supplier lists, information and strategies, securities activities or other related information, information supplied by third parties on a confidential basis, third-party research and investment advisory information and internal policies and procedures relating to the applicable party and its clients and any files, copies, records, extracts, reproductions and other materials containing such information. All Proprietary Information is and shall remain (as between the parties) the exclusive property of the disclosing party and shall be used by the other party solely for the benefit of the disclosing party, and in performance pursuant to this Agreement. Neither party shall, either during or after the term of this Agreement, disclose or permit others to disclose any Proprietary Information of the other to third parties or employees except on a need to know basis to perform services pursuant to this Agreement, or use the same for any purposes other than for the benefit of the Company and its affiliates or for any other unauthorized purposes without the prior written approval of the disclosing party, unless and until such Proprietary Information has become public knowledge without fault or disclosure by party obligated to maintain the confidentiality of the Proprietary Information. Page 2 of 5

3 Section 5. Intellectual Property. The parties agree that any software, source code, procedures, and other intellectual property or technology (and any applications for registration of such technology with the U.S. Patent and Trademark Office or the U.S. Copyright Office) developed by either party under its direction or supervision and in which it has had a direct contribution during the term of this Agreement shall be the sole and exclusive intellectual property of the Company. Section 6. Independent Contractor Status. The parties are independent contractors, and this agreement does not make the Contractor an employee, partner, agent of, or joint venturer with, the Company for any purpose. The Contractor is, and will remain, an independent contractor in the Contractor s relationships to the Company. The Company is not responsible for withholding taxes from compensation paid to the Contractor under this agreement. The Contractor shall have no claim against the Company under this agreement or otherwise for vacation pay, sick leave, retirement benefits, social security, workers compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Contractor and the Company agree to the following rights consistent with an independent contractor relationship: Contractor has the right to perform services for others during the term of this Agreement. Contractor has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed. Contractor shall perform the services required by this Agreement. Company shall not require Contractor to devote full time to performing the services required by this Agreement. This Agreement does not create a partnership relationship. Contractor does not have the authority to enter into contracts on the Company s behalf. Section 7. Insurance. The Contractor will carry liability insurance related to services performed for the Company under this agreement which insurance shall protect Contractor. Contractor will carry workers compensation insurance, where available, related to services performed for the Company under this agreement which insurance shall protect Contractor and Contractor s employees. Section 8. Indemnification by Contractor. The Contractor hereby indemnifies and agrees to defend and hold harmless the Company, and its affiliates, and each officer, director, manager, member and agent of the Company or any affiliate and clients of the Company, including parents and children of said clients, from and against any and all claims, actions, suits, proceedings, losses, damages, liabilities, costs fees or expenses, joint or several (including without limitation attorneys fees and the costs of any investigation actually incurred) arising or resulting from or in connection with infringement by the Contractor of any intellectual property owned by persons not party to this Agreement, and the acts and omissions of the Contractor, and negligence or willful misconduct of the Contractor, other than in accordance with this Agreement. Section 9. Indemnification by Company. The Company hereby indemnifies and agrees to defend and hold harmless the Contractor from and against any and all claims, actions, suits, proceedings, losses, damages, liabilities, costs, fees or expenses (including without limitation reasonable attorneys fees and the costs of any investigation) arising or resulting from or in connection with any breach, default or violation under or with respect to the acts and omissions of the Company other than in accordance with this Agreement. Notwithstanding anything herein to the contrary, the Company shall not indemnify the Contractor from and against any and all claims, actions, suits, proceedings, losses, damages, liabilities, costs, fees or expenses (including without limitation reasonable attorneys fees and the costs of any investigation) arising or resulting from the acts or omissions, negligence or willful misconduct of the Contractor or the Company s failure to supervise the Contractor. Section 10. Assignment. The Contractor may not assign any of the Contractor s services under this agreement, or delegate performance of those services, without the prior written consent of the Company. Section 11. Defense. Upon notice from the party entitled to indemnification under this Sections 7 and 8 (the Indemnified Party ), the other party (the Indemnifying Party ) shall defend the Indemnified Party in Page 3 of 5

4 any claim, action, suit or proceeding described in Sections 7 and 8, as the case may be, or any threat thereof, and shall promptly assume and hereafter diligently prosecute the defense thereof at the Indemnifying Party s cost and expense, using counsel who shall be subject to the Indemnified Party s reasonable approval. The Indemnified Party shall be entitled to engage separate counsel and participate in such defense; provided, that the fees, costs and expenses of such separate counsel shall be paid by the Indemnified Party unless the interests of the Indemnifying Party and the interests of the Indemnified Party are in conflict so that they cannot be adequately represented by the same counsel, in which event the fees, costs and expenses of one separate counsel shall be paid by the Indemnifying Party. The Indemnifying Party shall not settle any such claim, action, suit or proceeding or threat thereof without the prior written consent of the Indemnified Party, which consent may be withheld in the Indemnified Party s sole discretion if such settlement would require the expenditure of funds by the Indemnified Party or admit on behalf of or otherwise attribute to the Indemnified Party any fault or misconduct. Section 12. Covenants and Representations. The parties agree that (i) the restrictions in Paragraphs 3, 4, 5, 7 and 8 hereof are reasonable and necessary to preserve the value of the business and good will of the parties and (ii) any violation thereof will cause substantial and irrevocable damage and, therefore, in the event of any such violation, the damaged party shall be entitled to seek and obtain specific performance and injunctive relief in addition to any other available remedies. The Contractor represents that it is not bound by or subject to any non-compete, confidentiality or other restrictions by others that would be violated by his performance hereunder. The Company shall be permitted to notify the Contractor s subsequent employers of the existence of the restrictions in this Agreement and may furnish copies thereof to such employers. The provisions of Paragraphs 3, 4, 5, 7 and 8 hereof and this Paragraph 11 (and any provisions of this Agreement affecting the interpretation thereof) shall survive, notwithstanding any termination of this Agreement. Section 13. Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof. Except as otherwise expressly provided herein, this Agreement may be amended only in writing signed by the parties. Neither party may assign or delegate this Agreement or any rights or duties hereunder without the prior written consent of the other party. This Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the successors and permitted assigns of each of the parties. (a) All notices, requests, approvals, consents or other communications required or permitted to be delivered hereunder shall be in writing and shall be sufficient if delivered personally or forwarded by certified mail, postage prepaid (which shall be presumed to be delivered three days after mailing), to the party to which directed it its address following its signature to this Agreement. Either party may from time to time designate in writing any other address to which such communications shall be sent. (b) The delay or failure in the exercise of any right or power shall not operate as a waiver thereof, nor shall any single or partial exercise or waiver thereof preclude or limit any other or future exercise thereof. If any court of competent jurisdiction or any regulatory authority declares invalid or unenforceable any provision of this Agreement, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect; and the parties intend that, in lieu of any such invalid or unenforceable provision, the court shall construe this Agreement in a manner so as to give the maximum valid, binding and enforceable effect permitted by applicable law to the intent of the parties as evidenced by any such invalid or unenforceable provision. Except as otherwise expressly provided herein, remedies provided herein are cumulative in addition to any other remedies available herein or at law, in equity or by statute. (c) The relationship between the Company and the Contractor is that of independent contractor and not employer and employee. Neither the Association nor the Contractor shall hold itself out as an agent, joint venture or partner of the other or of any of the subsidiaries or entities controlled directly or indirectly by or affiliated with the other. Page 4 of 5

5 (d) Except as otherwise expressly provided herein, any consent or approval required to be obtained from a party shall not be unreasonably withheld or delayed by such party. (e) This Agreement shall inure to the benefit of the parties and their respective successors and assigns; provided, however, that the Contractor may not assign any of its rights or obligations under this Agreement without the prior written consent of the Association and which consent shall not unreasonably be withheld. (f) In the event any dispute arises between the parties in connection with the performance or interpretation of the provisions of this Agreement, the parties shall use their best efforts to settle the matter through mutual agreement. If the parties are unable to reach an amicable resolution of such dispute, the matter shall be finally settled by arbitration in Virginia pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in English and the arbitrators shall apply the laws of the Commonwealth of Virginia in interpreting this Agreement and the rights of the parties. The award rendered shall be final and binding upon the parties hereto and fully enforceable in a court of law. The losing party shall reimburse reasonable expenses and attorneys fees incurred to the prevailing party. Notwithstanding the foregoing, the parties shall have the right to institute a legal action in a court of proper jurisdiction for injunctive relief and/or a decree for specific performance pending final settlement by arbitration. (g) If any provision of this Agreement is declared invalid or unenforceable by any lawful tribunal, then it shall be adjusted to conform to legal requirements of that tribunal and that modification shall automatically become a part of this Agreement. If no adjustment can be made, the provision shall be deleted as though never included in this Agreement and the remaining provisions of this Agreement shall remain in full force and effect unless such invalidity or unenforceability causes substantial deviation from the underlying intent of the parties expressed in this Agreement, in which case the parties shall replace the invalid or unenforceable provision with a valid or enforceable provision which corresponds as far as possible to the spirit and purpose of the invalid or unenforceable provision. (h) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its principles of conflicts of laws. (i) The Section numbers and headings preceding text have been inserted for convenient reference only and shall not affect the meaning, construction or effect of this Agreement. Words in the singular include the plural and words in the plural include the singular. Unless otherwise provided herein, references herein to Sections, Schedules (if any), Exhibits (if any) and Addenda (if any) are references to Sections of this Agreement and Schedules (if any), Exhibits (if any) and Addenda (if any) attached or to be attached to this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered by their respective duly authorized signature individual signatures or duly authorized representatives as of the date first written FITBOUND, LLC Contractor Signature E-signature by its Chief Financial Officer, Roger S. Ney, or by its Member, Matthew R. Ney Printed Contractor Name Date Date Page 5 of 5