INDEPENDENT CONTRACTOR AGREEMENT

February 6, 2023

[COMPANY NAME]

 

INDEPENDENT CONTRACTOR AGREEMENT

 

This Independent Contractor Agreement (this “Agreement”) is entered into as of [DATE] (“effective date”), by and between [COMPANY NAME], a [STATE] company (“Company”), and [INDEPENDENT CONTRACTOR NAME] (“Contractor”).

 

WHEREAS Company desires to engage Contractor to provide the Services described herein and as may subsequently be agreed to by the parties, and Contractor desires to provide such Services, on the terms and conditions set forth herein; and

 

NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:

 

  1. Agreement. Company hereby engages Contractor to provide the Services set forth herein and as may subsequently be agreed upon by the parties. Company may, from time to time, engage Contractor to provide additional Services or to provide Services to additional customers, whether verbally or in writing. Contractor agrees that the terms and conditions of this Agreement shall apply to all Services performed by Contractor for any Customer, as if those Services or Customers had been named or specifically stated herein. Contractor promises to diligently, faithfully, and timely perform all Services in a professional and competent manner to the satisfaction of the Customer and Company.

 

  1. Independent Contractor.Contractor acknowledges that Contractor operates the Contractor’s own independent business and is providing services for or in connection with Company as an independent contractor. This Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of independent contractor and company and not that of employer and employee. The parties are not employees, agents, joint ventures, or partners of each other for any purpose. Contractor acknowledges that the Contractor is not an employee of Company, and the Services rendered for or in connection with Company do not establish any right to unemployment benefits or any other right arising from an employment relationship. Contractor is responsible for all tax liability associated with payments received from or through Company, and the Company will not withhold any taxes from payments to Contractor. Contractor is

responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the services rendered by the Contractor. Contractor further acknowledges as follows:

 

  1. Contractor is not insured under any Company provided health insurance coverage or workers’ compensation insurance coverage, nor will Contractor be eligible for any unemployment benefit following termination of this Agreement;

 

  1. Subject to Subsection k below, Company does not restrict Contractor’s ability to perform services for or through other parties, and Contractor is authorized to accept work from and perform work for other businesses and individuals besides the Company;

 

  1. Contractor has the right to accept or decline requests for services by or through Company;

 

  1. Subject to Subsection k below, Company expects that Contractor will provide services for other business and individuals besides Company.

 

  1. Contractor is not economically dependent on the Services performed for or in connection with Company;

 

  1. Company will not dictate the performance, methods, or processes Contractor uses to perform the Services. Contractor will determine the method, details, and means of performing the Services.

 

  1. Company has the right to impose quality standards or a deadline for completion of services performed, or both. Contractor is authorized to determine the days worked and the time periods of work at the point at which Contractor begins to provide services to a Customer, which may not be altered without Customer’s or Company’s express authorization thereafter.

 

  1. Contractor will be paid by or through Company based on the work Contractor is contracted to perform, in accordance with the terms sets forth in Section 3 herein.

 

  1. Contractor is responsible for providing and maintaining all tools and equipment required to perform the Services.

 

  1. Contractor is responsible for all expenses incurred by the contractor in performing the services. No fees and/or expenses will be paid to Contractor, unless such fees and/or expenses have been approved in advance by the Company in writing.

 

  1. Contractor shall not set up any business that competes with Company while completing Company’s work under this Agreement. 

 

  1. Payment.

 

  1. Company shall, on a monthly basis, or on another basis as determined by Company, pay Contractor a sum for Services performed. This sum will be a [PAY TYPE] rate of $[RATE].

 

  1. Contractor SHALL be SOLELY responsible for any and all taxes, Social Security contributions or payments, disability insurance, unemployment taxes, and other payroll taxes applicable to such compensation.

 

  1. Non-Solicitation.

 

  1. Contractor’s obligations under this Section 4 shall commence upon the effective date of this Agreement and shall conclude at the end of 18 months following the termination of this Agreement for whatever reason, whether voluntary or involuntary (the “Restrictive Period”); provided, however, that if the Restrictive Period is determined to be unenforceable, the Restrictive period shall conclude at the end of 12 months following the termination of this Agreement for whatever reason, whether voluntary or involuntary.

 

  1. Contractor will not, whether independently or through any employee, principal, agent, or other third party, contact, deal with, or solicit in any way any person or entity that was a customer or active customer prospect of Company and with whom Contractor had contact during the course of Contractor’s performance of Services during the one year preceding the termination of this Agreement, for the purposes of providing or offering to provide in any way services or products similar to any actual or planned services offered by Company.

 

  1. Contractor will not, whether independently or through any employee, principal, agent, or other third party, solicit or assist in the solicitation of any Company employee or independent contractor away from Contractor or to interfere with any individual’s performance of duties or obligations to Company.

 

  1. Contractor acknowledges and agrees that the provisions contained in Sections 4(b) and 4(c) herein are reasonably necessary to protect Company’s business relationships and goodwill and are material terms of this Agreement. Any violation of Sections 4(b) or 4(c) shall entitle Company, in addition to all other rights and remedies, to injunctive and equitable relief to secure the enforcement of this Agreement, in addition to recovery of attorneys’ fees and costs.

 

  1. In the event Contractor violates any one or more of the covenants contained in Sections 4(b) or 4(c) herein, Contractor agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation and the pendency of any litigation arising out of any such violation.

 

  1. Confidentiality.Contractor understands and agrees that Contractor’s provision of the Services creates a relationship of confidence and trust between Contractor and Company, and that in connection with the provision of the Services, Contractor may learn or be provided with information concerning Company or its Customers, the improper use or disclose of which would cause severe and irreparable harm. Accordingly, Contractor agrees that Contractor will not, during or at any time after termination of this Agreement, without written authorization of Company, disclose to, or make use of, for Contractor or for any other person, corporation, entity, or other third party, any information obtained by Contractor with respect to any Customer, or any information concerning Company’s business, including, but not limited to, the nature of the Services, the terms of this Agreement, Company’s customer lists, files and identities, processes, plans, relationships, pricing structure data, know-how, trade secrets or other confidential information concerning the business, customers, methods, operations, financing or services of Company (“Proprietary Information”). Contractor hereby acknowledges that all files, lists, books, records, reports, literature, products and any other materials furnished to Contractor by Company or provided or generated by Contractor or others in connection with the provision of the Contracted Services shall at all times be and remain the property of Company and that upon termination of this Agreement, irrespective of the time, manner or cause of said termination, or as otherwise requested by Company from time to time, Contractor will surrender to Company all such lists, books, records, reports, literature, products and other materials and all copies thereof.

 

  1. Licenses. Contractor is responsible for maintaining any required registration, licenses, or other authorization necessary to perform the services rendered.

 

  1. Limited Liability; Indemnity. Contractor shall indemnify, defend and hold harmless Company and Company’s employees, members, managers, and agents free and harmless from any obligations, costs, claims, judgments, attorneys’ fees and all other damages and expenses (excluding special, indirect, incidental, punitive, or consequential damages, and excluding loss of business, goodwill, or profits) arising from: (a) the Services performed pursuant to this Agreement or in any way connected with said Services performed by Contractor, or the actions of any of Contractor’s employees or personnel; (b) Contractor’s failure to comply with all federal, state and local laws, regulations, and ordinances applicable to Contractor as an employer or Contractor’s business operations; or (c) Contractor’s breach of any provision of this Agreement. This limited liability and indemnity provision shall survive termination of this Agreement.

 

  1. Termination.This Agreement shall commence as of the Effective Date and shall continue until terminated as follows:

 

  1. By either party, upon 30 days’ written notice to the other party of its intent to terminate the Agreement;

 

  1. By Company, at any time and without notice, if: (i.) Contractor fails to adequately and satisfactorily perform the Services or defaults on any term or condition in this Agreement or (ii.) Company believes such measure is necessary to maintain a satisfactory relationship with the Customer.

 

  1. Upon any termination of this Agreement, Company payment obligations shall terminate immediately. Upon request, Contractor shall deliver to Company any documents received from the Customer or Company.

 

  1. Notice.Any notices to be given hereunder shall be made either by personal delivery or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the Company at the following address:

 

Company:

 

[COMPANY NAME]

 

[COMPANY ADDRESS]

 

The Company may change the above address by written notice in accordance with this paragraph, or at such other address, and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this subsection. Notices delivered personally shall be deemed communicated as of the date of actual receipt. Mailed notices shall be deemed received as of 3 days after the date of mailing.

 

  1. Arbitration Agreement.

 

  1. ARBITRATION. EACH PARTY AGREES THAT ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANY OTHER PARTY (INCLUDING ANY PARTY’S EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, OR SHAREHOLDERS IN THEIR CAPACITY AS SUCH OR OTHERWISE), ARISING OUT OF, RELATING TO, OR RESULTING FROM THIS AGREEMENT, INCLUDING ANY ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION IN THE STATE OF [COMPANY STATE].EXAMPLES OF SUCH DISPUTES THAT THE PARTIES AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE BUT ARE   NOT LIMITED TO: CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE [COMPANY STATE] EMPLOYMENT PROTECTION ACT, THE CIVIL RIGHTS ACT OF 1991, THE EQUAL PAY ACT, THE FAIR LABOR STANDARDS ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, ANY AND ALL CLAIMS OF HARASSMENT, DISCRIMINATION AND WRONGFUL TERMINATION, ALL CLAIMS FOR BREACH OF CONTRACT, WRONGFUL DISCHARGE OR LAYOFF, CONSTRUCTIVE DISCHARGE, RETALIATORY DISCHARGE, IMPAIRMENT OF ECONOMIC OPPORTUNITY, INTENTIONAL OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, OR ANY OTHER TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, DEFAMATION, INVASION OF PRIVACY, INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ADVANTAGE, AND ANY AND ALL CLAIMS ARISING FROM ANY OTHER ALLEGED VIOLATIONS UNDER ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAW, RULE, REGULATION, ORDINANCE, PUBLIC POLICY OR COMMON LAW. CONTRACTOR UNDERSTANDS THAT THIS AGREEMENT TO ARBITRATE APPLIES TO ANY AND ALL DISPUTES THAT THE COMPANY MAY HAVE WITH CONTRACTOR.

 

  1. Procedure. The parties agree that any arbitration will be conducted in [COMPANY CITY],[COMPANY STATE] by an arbitrator who will be selected by the mutual agreement of the parties. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”), unless otherwise agreed by the parties. The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss, or any other motion, prior to any arbitration hearing. The arbitrator shall have the power to award any remedies available under applicable law and consistent with this Agreement, and that the arbitrator shall award attorneys’ fees and costs to the prevailing party except as prohibited by law. Company will pay for any administrative or hearing fees charged by the arbitrator, except that Contractor shall be responsible to pay an amount equal to the maximum fee established by applicable rule or the amount equal to my local court civil filing fee, whichever is less. The decision of the arbitrator shall be in writing and shall be binding on both parties.

 

  1. Remedy. Except as provided by the applicable AAA rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between Contractor and Company. Accordingly, except as provided for by the rules and this Agreement, neither Contractor nor Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy, and the arbitrator shall not order or require Company to adopt a policy not otherwise required by law. Nothing in this Agreement or in this provision is intended to waive the provisional relief remedies available under the rules.

 

  1. Administrative Relief. Contractor understands that this Agreement does not prohibit Contractor from pursuing an administrative claim with a local, state or federal administrative body. This Agreement does, however, preclude Contractor from pursuing court action regarding any such claim.

 

  1. Class and Collective Action Waiver.Contractor and Company agree to bring any dispute in arbitration, in accordance with Section 10, above, and on an individual basis only, and not on a class or collective action basis. Accordingly:

 

  1. Class Action Waiver. There shall 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 Agreement in any case in which: (i) the dispute is filed as a class action; and (ii) there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction.

 

  1. Collective Action Waiver. There shall 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 Agreement in any case in which: (i) the dispute is filed as a collective action; and (ii) there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction.

 

  1. Contractor shall not be retaliated against, penalized or threatened with possible penalty as a result of any attempt by Contractor to exercise rights protected under Section 7 of the National Labor Relations Act, including the filing of or participation in a class or collective action. However, Company may lawfully seek enforcement of this Arbitration Agreement and the Class Action Waiver and Collective Action waiver and seek dismissal of such class or collective action claims. Notwithstanding any other clause contained in this Arbitration Agreement, any claim that all or part of the Class Action Waiver or Collective Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an Arbitrator. The Class Action Waiver and Collective Action Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.

 

  1. Entire Agreement.This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.

 

  1. No Waiver. The waiver by the Company of a breach of any provision of this Agreement by Contractor shall not operate or be construed as a waiver of any subsequent breach by Contractor.

 

  1. Liability. EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.

 

  1. Governing Law.This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of [STATE]. Any action to enforce all or any party of this Agreement shall be brought within the State of [STATE].

 

  1. Amendment.This Agreement may be amended only by written agreement duly executed by an authorized representative of each party.

 

  1. Severability. If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.

 

  1. Assignment. This Agreement shall not be assigned by either party without the express consent of the other party.

 

  1. Counterparts.This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

 

CONTRACTOR HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS AND ACCEPTS THE OBLIGATIONS WHICH IT IMPOSES UPON CONTRACTOR WITHOUT RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO CONTRACTOR TO INDUCE CONTRACTOR TO SIGN THIS AGREEMENT. CONTRACTOR SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY.

 

ACCEPTED AND AGREED:

 

__________________________________ ______________________ ___________________

         Customer ’s   Name                                                Signature                         Date

 

__________________________________ ______________________ ___________________

           Company’s Official’s Name                                Signature                         Date

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