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WHEREAS Perfect 10 provides promotional and marketing services for its Clients (“Clients”) which requires staffing;
WHEREAS Perfect 10 desires to engage Independent Contractor to staff positions for the Clients of the Perfect 10 as an independent contractor;
WHEREAS Independent Contractor represents that s/he has complied with all Federal, State, and local laws and legal requirements of any kind that may be required to carry out said business and the scope of work which is to be performed as an Independent Contractor pursuant to this Agreement.
In consideration of the above recitals and the mutual promises and conditions contained in this Agreement, the Parties agree as follows:
1. Status of Independent Contractor. This Agreement does not constitute a hiring by either party. It is the parties’ intention that Independent Contractor shall have an Independent Contractor status and not be an employee for any purposes, including, but not limited to, the application of the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Revenue and Taxation Code relating to income tax withholding at the source of income, the Workers' Compensation Insurance Code 401(k) and other benefit payments and third party liability claims. Independent Contractor shall retain sole and absolute discretion in the manner and means of carrying out their activities and responsibilities under this Agreement. This Agreement shall not be considered or construed to be a partnership or joint venture, and Perfect 10 shall not be liable for any obligations incurred by Independent Contractor unless specifically authorized in writing. Independent Contractor shall not act as an agent of Perfect 10, ostensibly or otherwise, nor bind Perfect 10 in any manner, unless specifically authorized to do so in writing. Independent Contractor also understands that they are not an employee of the Clients.
2. Tasks, Duties, and Scope of Work.
a. If selected for a staffing position with a Client of the Perfect 10, Independent Contractor will be given guidelines from the Client specific to the Client’s particular promotion or marketing service to which the Independent Contractor is assigned. Independent Contractor agrees to devote as much time, attention, and energy as necessary to complete or achieve the staffing duties for the Clients of Perfect 10 as set forth in these Client’s guidelines. Independent Contractor understands that s/he is to use her/his best judgment as to the best method of providing the staffing services needed by the Client of Perfect 10, as outlined by the guidelines provided by the Client.
b. Independent Contractor shall be responsible to the owners of Perfect 10, but Independent Contractor will not be required to follow or establish a regular or daily work schedule. Independent Contractor is free to accept or reject any staffing assignment offered by Perfect 10; however, Independent Contractor understands that if s/he accepts a staffing assignment but fails to appear and/or give at least 24 hours’ notice, s/he will be taken off the program and placed on a “do not call” list for all other programs.
c. Independent Contractor shall supply all necessary equipment, materials and supplies, unless specifically provided by the Client pursuant to the Client’s guidelines. Independent Contractor will not rely on the equipment or offices of Perfect 10 for completion of tasks and duties set forth pursuant to this Agreement, unless agreed to by the parties.
d. Perfect 10 retains the right to inspect, stop, or alter the work of Independent Contractor to assure its conformity with this Agreement and the guidelines set forth by the Client.
3. Compensation. Independent Contractor shall be compensated in accordance with the Client Contract to which Independent Contractor is assigned and within 15 days of Perfect 10 receiving payment from the Client.
4. Notice Concerning Withholding of Taxes. Independent Contractor recognizes and understands that it will receive an IRS 1099 statement and related tax statements, and will be required to file corporate and/or individual tax returns and to pay taxes in accordance with all provisions of applicable Federal and State law. Independent Contractor hereby promises and agrees to indemnify Perfect 10 for any damages or expenses, including attorney's fees, and legal expenses, incurred by Perfect 10 as a result of independent contractor's failure to make such required payments.
5. Acknowledgement Regarding Benefits. Independent Contractor hereby waives and foregoes the right to receive any benefits from Perfect 10, including, but not limited to, health benefits, vacation and sick leave benefits, profit sharing plans, such as 401(k) plans. This waiver is applicable to all non-salary benefits which might otherwise be found to accrue to the Independent Contractor by virtue of their services to Perfect 10, and is effective for the entire duration of Independent Contractor’s agreement with Perfect 10. This waiver is effective independently of Independent Contractor’s employment status as adjudged for taxation purposes or for any other purpose.
6. Duration of Agreement. This agreement shall begin on the date indicated on the signature page and shall remain in effect for a period of one (1) year from the date, but may be terminated pursuant to paragraph 7 below, or if either Party breaches this Agreement. In the event this Agreement automatically terminates pursuant to this provision and Independent Contractor elects to continue providing service to Perfect 10 without first signing a new Agreement but with the full knowledge and written authorization of Perfect 10, then the terms and conditions of this Agreement shall continue on a monthtomonth basis unless and until terminated by either party upon thirty days written notice.
7. Termination. This Agreement may be terminated by either party giving thirty (30) days written notice. Such termination shall not prejudice any other remedy to which the terminating party may be entitled, either by law, in equity, or under this Agreement.
8. Non-Disclosure of Confidential Information, Trade Secrets, Perfect 10 Lists and Other Proprietary Information. Independent Contractor agrees not to disclose or communicate, in any manner, either during or after Independent Contractor’s agreement with Perfect 10, proprietary information about Perfect 10, its operations, clientele, or any other proprietary information, that relate to the business of Perfect 10 including, but not limited to, the names of its customers, Client contact or contract information, Perfect 10’s marketing strategies, operations, or any other information of any kind which would be deemed confidential, a trade secret, a customer list, or other form of proprietary information of Perfect 10. Independent Contractor also agrees not to disclose or communicate, in any manner, either during or after Independent Contractor’s agreement with the Perfect 10, any Client proprietary information learned as a result of any staffing assignment. Independent Contractor acknowledges that the above information is material and confidential and that it affects the profitability of Perfect 10. Independent Contractor understands that any breach of this provision is a material breach of this Agreement. To the extent Independent Contractor feels s/he needs to disclose confidential information, s/he may do so only after obtaining written authorization from the Perfect 10.
9. Non-Solicitation. Independent Contractor agrees that in order to protect Perfect 10’s Confidential Information and Trade Secrets that Independent Contractor will receive in connection with Independent Contractor’s relationship with Perfect 10, and to protect the Perfect 10’s business goodwill, Independent Contractor agrees: during the relationship with Perfect 10, and for a period of six (6) consecutive calendar months following the termination of Independent Contractor's relationship with Perfect 10, Independent Contractor shall not directly or indirectly, except as required to perform his/her duties in furtherance of this Agreement, hire or otherwise induce, influence or advise any of the Perfect 10’s employees, contractors, officers, agents or Clients of Perfect 10 to terminate their employment and/or relationship with Perfect 10.
10. Injunctive Relief and Reasonable Restrictions. Independent Contractor agrees that Independent Contractor’s breach or violation of this Agreement would result in irreparable harm to Perfect 10. Therefore, Independent Contractor agrees that upon Independent Contractor’s breach of violation of this Agreement, Perfect 10 is entitled, as a matter of right, to an injunction issued by a court of competent jurisdiction, restraining any further or continued breach of violation of this Agreement. Such right to an injunction shall be cumulative and in addition to, and not in lieu of, any other remedies to which Perfect 10 may show itself justly entitled. Further, during any period in which Independent Contractor is in breach of this Agreement, the time period of this Agreement shall be extended for the amount of time that Independent Contractor is in breach thereof. The parties to this Agreement agree that the limitations contained in this Agreement are reasonable. However, if any court shall determine that the limitations contained in this Agreement are unenforceable, it is the intention of the parties that such Agreement shall not be thereby be terminated but shall be deemed amended to the extent required to render it valid and enforceable.
11. Return of Property. On termination of this Agreement, or whenever requested by the Perfect 10, Independent Contractor shall immediately deliver to Perfect 10 all property in her/his possession, or under her/his care and control, belonging to Perfect 10 or Perfect 10’s Clients, including but not limited to proprietary information, client contact or contract information, customer lists, trade secrets, intellectual property, computers, equipment, tools, documents, plans, recordings, software, and all related records or accounting ledgers.
12. Images or Photographs. Independent Contractor authorizes Perfect 10 to use, copy or reproduce Independent Contractor’s images or photographs taken by Perfect 10 and its Clients for distribution and marketing purposes including brochures, postcards, websites and any other marketing tool necessary.
13. Legal Compliance. Independent Contractor is encouraged to treat all company employees, customers, clients, business partners and other affiliates with respect and responsibility. Independent Contractor is required to comply with all laws, ethical codes and company policies, procedures, rules or regulations.
14. Indemnification. Independent Contractor shall defend, indemnify, hold harmless, and insure Perfect 10 from any and all damages expenses or liability resulting from or arising out of, any negligence or misconduct on Independent Contractor's part, or from any breach or default of this Agreement which is caused or occasioned by the acts of Independent Contractor.
15. Not an employee. Nothing contained in this Agreement shall be construed to as an employment agreement, joint venture, or partnership agreement, and Independent Contractor shall not be deemed to be an employee of Perfect 10. Neither Party has any authority to bind the other in any respect unless specifically specified herein. It is intended, understood, and agreed that Independent Contractor is an independent contractor responsible for Independent Contractor’s own actions; schedule and hours; costs associated with services, and the method and manner in which Independent Contractor performs his services, except as specifically stated herein.
16. Choice of Law/Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas excluding any choice of law rule(s) which would cause the law of another jurisdiction to apply. The Parties agree that any legal proceeding arising under or related to this Agreement will be filed and resolved solely and exclusively in the courts of Dallas County. The Parties agree they will not contest and hereby waive any challenge to the exclusive venue provision in this paragraph to any dispute or claim arising under or related to this Agreement.
17. Entire Agreement. This Agreement is an independent document and supersedes any and all other Agreements, either oral or in writing, between the parties hereto.
18. Representation. Each party of this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party hereto, or anyone acting on behalf of any party hereto, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement shall be effective only if it is in writing, signed and dated by all parties hereto. The parties represent and affirm that they intend to be legally bound by this Agreement.
19. Severability. If any portion of this Agreement or its appendices is deemed invalid for any reason whatsoever, the Agreement shall become void only as to such provision, and this Agreement shall remain otherwise binding between the parties. Any provision voided by operation of the foregoing shall be replaced with provisions, which shall be as close as the parties' original intent as permitted under applicable law.
20. Modification and Amendments. This Agreement shall not be altered or amended, except by a writing signed by all parties hereto or such parties' authorized agent.
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