INDEPENDENT CONTRACTOR AGREEMENT

Transcription

1 INDEPENDENT CONTRACTOR AGREEMENT This Independent Contractor Agreement ( Agreement ) is entered between Nordstrom, Inc. ( Nordstrom ), with a business address at 1700 Seventh Avenue, Suite 1000, Seattle, WA and Contractor, on the terms set forth below. Schedule means any attachment, exhibit, schedule and/or purchase order or other applicable ordering document currently attached to this Agreement, which is hereby incorporated by reference, or that Nordstrom and Contractor subsequently attach and agree shall become part of the Agreement. 1. Term. This Agreement shall become effective on the date it is signed by both Nordstrom and Contractor. It will remain in place unless terminated sooner pursuant to the termination provisions of the Agreement. 2. Contractor s Services. Contractor shall provide its services to Nordstrom, including any deliverables, which may include, without limitation, delivery, installation, implementation, integration, training and/or consulting services. All Services only shall be performed by Contractor, and Contractor s employees, unless agreed to otherwise by the parties in writing. Contractor will not subcontract its performance of the Services without the advance written approval of Nordstrom. 3. Acceptance. Nordstrom shall determine if Contractor s services were performed in accordance with the specifications, documentation, business criteria or other requirements l provided to Contractor. If Nordstrom is not satisfied with the services, Nordstrom will provide written notice of any deficiencies. Contractor shall have seven (7) days to correct the deficiencies. If the deficiencies are not corrected, Nordstrom may elect, at its option and without further liability, to cancel the services for a full refund of all fees for the deficient services. 4. Expenses. Contractor shall be solely responsible for all expenses incurred, including expenses of its employees, in connection with providing the services covered by this Agreement. Contractor will only seek reimbursement for expenses in accordance with Nordstrom s travel policy. 5. Representations. Contractor represents that: (a) it has no obligations that conflict with or are inconsistent with the obligations stated under this Agreement; (b) it has the skills and/or abilities to perform the services; (c) performance of the services will not violate any contractual rights, trade secrets or other rights of any third party; and (d) all materials produced by Contractor for Nordstrom pursuant to this Agreement are the Contractor s original creation, not a copy, alteration or derivative work of an existing design and Contractor has the sole and exclusive right to grant the rights with respect to such materials. 6. Scope of Control. Nordstrom and Contractor intend for Contractor and its employees to be independent contractors with respect to Nordstrom. Contractor and Nordstrom intend on operating their respective businesses independently of each other at all times. Contractor shall control the manner and means, including the time and location, of providing any and all services, and shall at all times act in a manner consistent with its status as an independent contractor. Nordstrom will not provide Contractor or its employees with any training or instructions with respect to the services. Contractor will provide any resources it determines are needed to provide the services. Nordstrom will not exercise day-to-day supervision or control over Contractor s or Contractor s employees performance of the services. 1

2 7. Hiring Employees. Contractor may select and hire other individuals to assist Contractor in providing the services solely as employees not independent contractors. Contractor shall comply with applicable federal, state, regional and local laws and regulations in performing the services and in any of its dealings with its employees, including laws and regulations regarding workplace safety, immigration, payment of wages, child labor and discrimination and harassment. Contractor acknowledges and agrees Nordstrom shall not be responsible for complying with such laws in any of Nordstrom s dealings with Contractor s employees. 8. Employee Restrictions. Contractor shall not refer to or hold its employees out as employees of Nordstrom. Contractor s employees may not send out communications on Nordstrom letterhead, use a Nordstrom address or otherwise give the appearance they are employed by Nordstrom. Contractor s employees do not have the right or authority to make any representation or to incur any type of liability or any obligation of any kind against, in the name of, or on behalf of Nordstrom, whether directly or indirectly. 9. Company Benefits. None of the benefits, if any, that Nordstrom provides its employees shall be available to Contractor or Contractor s employees. To the extent that Contractor s employees may inadvertently become eligible for any benefit programs maintained by Nordstrom, those employees shall be deemed to have waived any right to participate in such programs. Contractor and Contractor s employees shall not have coverage under Nordstrom s workers compensation insurance. Contractor and its employees will not be eligible for, and agree not to apply for, any government-sponsored benefits that are intended to apply to Nordstrom s employees, including, but not limited to, unemployment benefits. 10. Background Checks. Contractor shall undergo a comprehensive background investigation at Nordstrom s expense before performing services for Nordstrom. Contractor shall conduct a comprehensive background investigation of its employees prior to such employees performing the services if such employees will interact with Nordstrom employees or Nordstrom customer or will have access to personal information about Nordstrom employees or Nordstrom customers. Contractor will pay for the cost of the employee background investigations. Background investigations may not be more than one year old at the time the employee starts performing services. Background investigations must include, but are not limited to, a lawful consumer investigative report covering the previous seven (7) years or, if shorter, the maximum number of years allowed by the applicable federal and state laws. Background investigations must include records of criminal convictions, as long as they are available and it is legally-permissible to obtain those records. Contractor must use a third party consumer reporting agency that specializes in conducting individual background investigations for a fee to prepare the investigative reports. 11. Business and Professional Licenses. Contractor and its employees shall maintain all business and professional licenses required to perform the services. Contractor shall provide Nordstrom with a copy of any business and/or professional license(s) upon request. If Contractor is located outside of Washington, Contractor agrees to register with the Washington State Department of Revenue, if required. 12. Invoices. Contractor will promptly and accurately invoice Nordstrom for the services. Nordstrom will pay invoices within forty-five (45) days of receipt. If Contractor uses hourly billing, invoices must include the name of the individual performing the work, the number of hours worked and a description of the work performed. If Nordstrom in good faith disputes any portion of an invoice, Nordstrom will notify Contractor of the dispute and deduct the disputed amount from payment. 13. Taxes. Contractor and Contractor s employees are independent contractors with respect to Nordstrom for all tax purposes, including but not limited to the Federal Insurance Contributions 2

3 Contractor may add sales or other taxes required to be included as part of the services to its prices. Nordstrom will not be responsible for taxes based on net income or gross income, franchise taxes, business and occupation taxes and any other taxes imposed on Contractor s business. If Nordstrom pays taxes to Contractor and a government agency later determines that Contractor did not owe the tax, Contractor shall refund the amount to Nordstrom along with interest. Nordstrom s refund is not contingent upon the Contractor collecting the refund monies from the government agency. Any refund must be paid regardless of when Contractor paid the taxes. 14. Indemnity. Contractor shall defend, indemnify and hold Nordstrom harmless from and against any and all liabilities, losses, damages, claims or demands, including all reasonable attorneys fees and costs, asserted against or incurred by Nordstrom as a direct or indirect result of any damage, destruction or theft of property, breach of the Contractor s obligations under this Agreement, death of or injury to any person, resulting directly or indirectly from the acts or omissions of Contractor or any officer, director, employee, agent or subcontractor of Contractor or from any negligent or willful act or omission of any of Contractor s employees, including errors and omissions, arising out of the services covered by this Agreement. Nordstrom, at its expense, may engage counsel to participate in any legal proceedings. Contractor shall: (a) cooperate fully with Nordstrom; (b) keep Nordstrom informed about the status of the legal proceeding; and (c) respond promptly to requests for information regarding the status. Contractor shall not settle any legal proceedings without Nordstrom s express written authorization if the legal proceeding could impose liabilities or obligations on Nordstrom that will not be satisfied in full by the payment of money and/or performance by Contractor. 15. Termination. Nordstrom may terminate this Agreement with seven (7) days written notice. Nordstrom will pay Contractor for any undisputed outstanding invoices and compensation due for the services covered by this Agreement up to the effective date of termination. 16. Arbitration. Provision. ( Arbitration Provision shall refer collectively to paragraph 17 and all subparagraphs.) a. Scope of Arbitration Provision. The Arbitration Provision in this Agreement is governed by the Federal Arbitration Act, 9 U.S.C. 1 et seq. and evidences a transaction involving commerce. This Arbitration Provision applies to any disputes arising out of or related to the services covered by this Agreement, this Agreement or the breach or termination of this Agreement. The Arbitration Provision applies to any such disputes even if they are brought by others on behalf of Contractor. This Arbitration Provision is intended to apply to the resolution of past, present and future disputes that otherwise would be resolved in a court of law and requires that all such disputes be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial except as otherwise stated in this Arbitration Provision. Such disputes also include without limitation disputes arising out of or relating to the interpretation or application of this Arbitration Provision. However, this Arbitration Provision does not apply to disputes regarding the enforceability, revocability or validity 3

4 b. Excluded Claims. This Arbitration Provision does not cover disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law ). This Arbitration Provision also does not cover other disputes that may not be subject to a pre-dispute arbitration agreement in accordance with governing federal law. Private attorney general actions are not subject to this Arbitration Provision and therefore must be litigated in a civil court of competent jurisdiction. c. Arbitrator Selection. The arbitrator shall be either a retired judge who presided in the jurisdiction where the arbitration is convened or an attorney who is experienced in the area of the dispute and licensed to practice law in that jurisdiction. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, the arbitrator shall be selected pursuant to the Judicial Arbitration & Mediation Services (JAMS) Comprehensive Arbitration Rules & Procedures, which are currently available at Contractor may also obtain a copy of the JAMS rules from Nordstrom s Strategic Sourcing Department. Aside from the rules governing selection of an arbitrator, the JAMS rules shall not otherwise apply, and this Arbitration Provision shall govern all arbitration proceedings in lieu of the JAMS rules. d. Arbitration Location. The location of the arbitration proceeding shall be no more than 45 miles from the place where Contractor s principal place of business was at the time Contractor last performed services covered by this Agreement, unless Contractor and Nordstrom agree in writing otherwise. If Contractor no longer has its principal place of business in the general geographical vicinity where Contractor s principal place of business was at the time Contractor last performed services covered by this Agreement and Contractor and Nordstrom cannot agree to a location for the arbitration, the arbitrator will decide the location of the arbitration. e. Starting Arbitration. A demand for arbitration must be in writing and delivered by hand or first class mail to the other party within the applicable statute of limitations period. Any demand for arbitration made to Nordstrom shall be provided to the address set forth in this Agreement for notices. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. The demand shall identify the legal and factual basis for the claims and the parties to the dispute. f. Arbitration Process And Procedures. In arbitration, Contractor and Nordstrom will have the right to conduct adequate civil discovery and to bring motions, including motions for full and/or partial summary judgment and other motions that could resolve all or part of the disputes. Contractor and Nordstrom will also have the right to present witnesses and evidence. Any disputes regarding discovery, motions, witnesses and evidence shall be resolved by the arbitrator. The arbitration will only be recorded by a stenographer (or other means) if Contractor or Nordstrom ask to have the arbitration recorded. If both Contractor and Nordstrom request a recording, the cost will be shared equally. Otherwise, the person requesting the recording will pay the costs. If Contractor or Nordstrom fail to attend a scheduled hearing held as part of the arbitration, the arbitrator may decide the arbitration or any claim or defense without Contractor or Nordstrom. 4

5 g. Class and Collective Action Waivers. Contractor and Nordstrom agree to bring any dispute in arbitration only on their own behalf, and not on a class or collective action basis. Accordingly: i. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action ( Class Action Waiver ). The Class Action Waiver shall not be severable from this Arbitration Provision in any case in which: (a) the dispute is filed as a class action and (b) a civil court of competent jurisdiction finds the Class Action Waiver is unenforceable. In such instances, the class action must be litigated in a civil court of competent jurisdiction. ii. There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action ( Collective Action Waiver ). The Collective Action Waiver shall not be severable from this Arbitration Provision in any case in which (a) the dispute is filed as a collective action and (b) a civil court of competent jurisdiction finds the Collective Action Waiver is unenforceable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction. iii. Disputes regarding the validity and enforceability of the Class Action Waiver and/or the Collective Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. iv. The Class Action Waiver and Collective Action Waiver, and any other provision of this Arbitration Provision, shall be severable in any case in which the dispute is filed as an individual (non-class and non-collective) action and severance is necessary to ensure that the action proceeds in arbitration. h. Cost of Arbitration. The fees and expenses of the arbitrator shall be divided equally between Nordstrom and Contractor unless otherwise ordered by the assigned arbitrator or required by law. Any disputes regarding payment of attorneys fees, administrative expenses and costs will be resolved by the arbitrator. i. Post-Arbitration. Within 30 days of the close of the arbitration hearing, Contractor and Nordstrom will have the right to prepare, serve on the other party, and file with the arbitrator a brief. The arbitrator may award Contractor or Nordstrom any remedy to which Contractor or Nordstrom are entitled under applicable law, including attorneys fees, but such remedies shall be limited to those that would be available to Contractor or Nordstrom in its individual capacity in a court of law for the claims presented to and decided by the arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the arbitrator, neither Contractor, Nordstrom nor an arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of all parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the arbitrator s award. 17. Compliance with Laws. Contractor shall comply with applicable federal, state, regional and local laws and regulations in performing the services covered by this Agreement. 18. Insurance. Contractor agrees to procure and maintain at its own expense the following minimum insurance coverage: 5

6 a. Commercial General Liability Insurance. With limits of at least $1,000,000 per occurrence and $2,000,000 general aggregate, covering all operations for injury to or death of persons and damage to property, including completed operations coverage. b. Workers Compensation. Statutory limits with employers liability limits of at least $500,000 each occurrence. c. Automobile Liability lnsurance. With limits of at least $1,000,000 each accident. Such insurance shall include coverage for all owned, hired and non-owned automobiles. If Contractor is to provide valet services, coverage shall include garagekeepers liability with at least $500,000 direct damage limits. 19. Permissible Insurance Policies and Certificates. Nordstrom, its officers, directors and employees shall be named as additional insureds on the general liability policy and the coverage afforded under Contractor's insurance policies shall be primary to any insurance carried by Nordstrom, whose insurance(s) shall be excess and non-contributory for claims and losses arising out of Contractor's performance under this Agreement. Contractor must provide certificates of insurance before Contractor performs any services covered by this Agreement. 20. Publicity. Contractor may not publicize Contractor's business relationship with Nordstrom. Contractor shall not use any trade name, trademark, service mark, logo or any other information that identifies Nordstrom in Contractor's sales, marketing and publicity activities and/or materials, including, but not limited to, interviews with representatives of any written publication, television station or network, or radio station or network, and publications in any Internet Web site, digital media, print, video or audio media. 21. Ownership and Work Made For Hire. All materials produced for Nordstrom by Contractor or Contractor s employees performing services covered by this Agreement shall be deemed work made for hire within the meaning of the U.S. Copyright Act, as amended. If any portion of such work is determined not to be a work made for hire, Contractor hereby sells, assigns and transfers to Nordstrom all present and future right, title and interest in and to such work, including all copyrights and trademarks, so that all copyrights for the work and all other intellectual property rights related to the work will immediately and automatically be the sole and absolute property of Nordstrom. Contractor will, at Nordstrom s expense, execute any instruments and do all other things reasonably requested by Nordstrom (both during and after the term of this Agreement) in order to vest more fully in Nordstrom any and all ownership rights in the transferred work. 22. Confidential Information. Contractor agrees not to disclose Confidential Information about Nordstrom to third parties. Confidential Information includes but is not limited to any nonpublic information about Nordstrom, trade secrets, marketing or buying methods or plans, sales techniques, personal information with respect to employees, customers or others (including Personal Information as that term is defined in Section of the California Civil Code and Consumer Information as defined in 16 CFR 682), business affairs, and the amounts paid to Supplier. For purposes of this Agreement, Confidential Information means all information, whether proprietary to each party or otherwise commercially valuable, in all forms and formats. Each party shall assume that Confidential Information can be contained in any medium, including verbal form, graphic form, machine readable or electronic form, or written or other tangible form, whether or not marked as confidential. Additionally, Contractor will have in place policies, which provide for the secure disposal of documents and information that contain Confidential Information of Nordstrom, including, but not limited to, shredding documents and establishing internal controls over the authorized access to such information. In the event of any unauthorized access to, unauthorized disclosure of, loss of, damage to or inability to account for any of Nordstrom s Confidential Information, or any other apparent or 6

7 23. Notices. All notices and demands shall be in writing and shall be served by personal delivery, or by certified mail return receipt requested, or by courier service that provides verification of receipt at the address of the receiving party set forth below (or at such different address as may be designated by such party by written notice to the other party). 24. Complete Agreement. This Agreement is intended to be the entire agreement with respect to the matters covered and supersedes all prior oral and written understandings, negotiations, commitments and proposals concerning the matters covered. No previous agreement, statement or promise made by Nordstrom or Contractor that is not contained in the terms of this Agreement shall be binding or valid, unless specifically incorporated by reference. This Agreement may be amended only in writing and signed by an authorized representative of Nordstrom and Contractor. 25. Governing Law. This Agreement, all issues related to or arising from this Agreement, and the rights and obligations of the parties, shall be governed by, and interpreted, construed, and determined in accordance with the laws of the State of Washington. 26. Assignment. Contractor may not assign its obligations under this Agreement. Nordstrom may assign the Agreement and all of its rights and obligations in the event of a merger, consolidation, sale of assets, or otherwise to the acquiring or surviving entity, provided the entity assumes all of the obligations of this Agreement. Legal Notice Address: Nordstrom, Inc., th Ave, Suite 1000 Seattle, WA Attn.: Corporate Secretary 7