has read, understood and accepted the following version of the INDEPENDENT CONTRACTOR AGREEMENT:
This Agreement is entered by and between DeQuatrro Enterprise, Inc., a Florida corporation d/b/a Call Center Gateway, hereinafter referred to as "Company", and applicant, hereinafter referred to as "Contractor".
P R E A M B L E :
Company is in the business of operating a third party call center that specializes in providing sales verification and live transfers of prospective leads to client companies (“Clients”).
Company desires to retain the services of Contractor for the purpose of providing services to the business of the Company.
Contractor desires to work for the business of the Company pursuant to the terms and conditions set forth in this Agreement.
Now, therefore, in consideration of the premises and of the mutual covenants herein contained, the parties hereto agree as follows:
Term. Company hereby agrees to retain Contractor and Contractor agrees to perform services for the Company on the terms and conditions hereinafter set forth. The term of service under this Agreement shall commence upon Contractor verification, and shall continue until this Agreement is terminated in the manner hereinafter provided.
Duties of Contractor.
Scope of Responsibilities. In connection therewith, Contractor shall only use scripts that are provided by Company and/or its clients, never deviate there from, and abide by all guidelines set forth on Exhibit “A”, attached hereto and incorporated herein by this reference. Contractor acknowledges, understands, and consents to the fact that all of his/her telephone calls made or received through Company’s dialer system are being recorded and subject to monitoring to assure compliance with this agreement and applicable laws. Contractor shall be solely required to obtain all required licensing for her/him to provide the services required of her/him to be provided herein and shall supply evidence of such licensing at any time upon request from Company. Contractor shall provide services at such times and in such manner, subject to the provisions of this Agreement, as Contractor determines in his/her own discretion. Contractor shall adhere to all state and Federal laws during the course of contacting and speaking with consumers regarding any product or service Contractor is promoting and/or verifying. Contractor shall be provided a personal access code and password to enable her/him to use Company’s dialer, Contractor is not to provide such access code and/or password to anyone.
Engaging in Other Services. During the term of this Agreement, the Contractor may perform services of a business, commercial, or professional nature to any other person or organization, whether for compensation or otherwise.
Compensation. Upon commencement of Contractor's services hereunder, Contractor shall receive during the term of this Agreement, compensation for services rendered hereunder determined as follows:
Fees. Contractor will receive the amount defined in the Contractor relationship document and may change from time to time.
No payroll or employment taxes of any kind shall be withheld or paid with respect to payments to Contractor. The payroll or employment taxes that are the subject of this paragraph include but are not limited to FICA, FUTA, federal personal income tax, state personal income tax, state disability insurance tax, and state unemployment insurance tax.
No worker’s compensation insurance has been or will be obtained by Company on account of Contractor or Contractor’s employees. Contractor shall comply with the worker’s compensation laws with respect to it and its employees.
No Benefits. Contractor shall be responsible for satisfying all compensation and benefits to Contractor’s employees and shall satisfy any and all taxes as may from time to time be required by law with respect to its operations and fees received. Contractor shall and does hereby indemnify and hold Company harmless from any liabilities, claims, taxes and other costs related to the fees it receives and the compensation paid to it and any other claims with respects to payments made by Company to Contractor. Contractor shall not by virtue of this Agreement be entitled to any benefits from Company to which employees of Company receive, directly or indirectly from Company.
Non-Compete Covenant.
During the term of this Agreement, the Contractor shall not, directly or indirectly, either as a contractor, employee, consultant, agent, principal, partner, stockholder, corporate officer, director or in any other individual or representative capacity, engage, assist or participate in any business that is in competition in any manner whatsoever with the business of the Company.
In consideration of the Company retaining the Contractor in a position wherein he will gain specialized knowledge and experience and will establish personal relationships with the Company's customers, suppliers and employees, the Contractor covenants and agrees as follows:
Following the termination of the Agreement, whether by termination of this Agreement, by wrongful discharge, or otherwise, the Contractor agrees that for a period of two (2) years following the termination of his/her services hereunder, he/she will not solicit, hire or otherwise retain the services of any employee or agent of Company and Contractor will not encourage or induce any such persons to terminate their relationships with Company. Contractor further agrees that for a period of two (2) years following the termination of his/her services hereunder, he/she will not directly or indirectly solicit or perform services for any client serviced by the Company prior to the date of termination of his/her employment.
These covenants on the part of the Contractor shall survive the termination of this Agreement and shall be construed as agreements independent of any other provision of this Agreement; and the existence of any claim or cause of action of the Contractor against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants of this Section. In the event of a breach or threatened breach by the Contractor of his/her obligations under this restrictive covenant, the Contractor acknowledges that the Company will not have an adequate remedy at law and shall be entitled to such equitable and injunctive relief as may be available to restrain the Contractor from the violation of the provisions hereof. In the event that a court of competent jurisdiction determines that either the geographical restriction or the terms set forth herein are unreasonable, then either of the above shall be adjusted by the parties hereto to a less restrictive geographical area and/or term. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies available for such breach or threatened breach, including the recovery of damages from the Contractor.
In any action or proceeding by Contractor or by Company relating to or involving the enforcement of the covenants set forth in this section, CONTRACTOR HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO THE ACTION, PROCEEDING OR OTHER LITIGATION RESULTING FROM, OR INVOLVING THE ENFORCEMENT OF, THE COVENANTS OF THIS SECTION, INCLUDING, BUT NOT LIMITED TO ANY COUNTERCLAIMS OR OTHER ACTIONS RELATED OR UNRELATED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. Contractor and Company hereby agree that the venue of any action, proceeding, counterclaim, cross claim or any other litigation relating to, involving or resulting from the enforcement of the covenants of this section shall be in Seminole County, Florida. In addition, in any action or proceeding by Company to obtain a temporary restraining order and/or preliminary injunction to enforce these covenants, Contractor hereby agrees that the posting of a bond, if required by the Court, by Company in the amount of One Thousand Dollars ($1,000) shall be deemed reasonable in order to obtain the temporary restraining order and/or motion for preliminary injunction. Should the action of Company for a motion for a temporary injunction be granted in whole or in part and Company is ultimately unsuccessful in obtaining a permanent injunction to enforce the covenants of this section, Contractor hereby waives any and all right Contractor may have against Company for any injuries or damages, including consequential damages, sustained by Contractor and arising directly or indirectly from the issuance of the temporary restraining order and/or preliminary injunction.
Confidentiality. Contractor recognizes the interest of Company in maintaining the confidential nature of Company's, its clients’, and their respective customers’ proprietary matter and agrees that he/she will not, directly or indirectly, disclose or use, except as required in the course of performing his/her duties to Company, any proprietary matter of Company, its clients, or their respective customers, including, without limitation: records, files, data, software, methods, formulae, products, apparats, customer lists, trade secrets, sales lists, agent lists, plans, specifications, price lists, and other similar information which is proprietary in nature. All such proprietary matter which is in tangible form shall not be removed from Company's premises or from the premises of Company's affiliates without Company’s prior express written consent, except as required in the course of Contractor's services. Upon termination of Contractor's services, all such proprietary matters shall be promptly delivered to Company.
Return of Materials. Contractor agrees that the expiration of this Agreement any materials or documents, including copies thereof, which contain confidential information of Company, or an of its clients or their respective customers, shall be promptly returned to Company except that copies may be retained, if required, for legal or financial compliance purposes only.
Remedies. Both parties recognize that the services to be rendered by Contractor for Company are special, unique, and of an extraordinary character, and that in the event of a breach by the Contractor of any of the terms or conditions of this Agreement, then Company shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction: (i) to enforce the specific performance of this Agreement by Contractor, or (ii) to enjoin Contractor from breaching any term, condition, or covenant of this Agreement or from performing services in an individual capacity or for any person, firm, or corporation if those services are performed in a competing line of business with Company. Nothing contained herein shall be construed to prevent such remedy in the courts as Company may elect to invoke in case of any breach of this Agreement by Contractor.
Agreement by Contractor. Contractor agrees, warrants and represents to Company that Contractor has the right and power to execute this Agreement and perform his/her duties as indicated herein without violation of any other agreements, whether written or oral, which would prohibit him/her from providing services for the Company. Contractor agrees to indemnify Company and hold it harmless from any such loss, cost, damage or other expense incurred as a result of a breach of this representation and warranty by Contractor.
Termination.
Termination by Either Party Without Cause. This Agreement may be terminated by either party for any reason by giving written notice to the other at least fourteen (14) days prior to the effective date of termination.
Termination by Company for Cause. This Agreement may be immediately terminated by the Company upon the occurrence of any of the following events:
The death of the Contractor;
Upon discovery that Contractor has committed an act of fraud or dishonesty, willfully damaged or injured the Company's property, business or goodwill; or breached any material term or provision of this Agreement, including, but not limited to strictly adhering to scripts and/or disclosing access code and/or password to anyone other than an officer of Company for any reason; or
Upon the failure of Contractor to possess current and valid licenses required by any city, county or governmental agency of the State of Florida to perform his/her services.
Termination by Contractor for Cause. This Agreement may be immediately terminated by the Contractor upon Company’s breach of any material term or provision of this Agreement which is not cured by Company within ten (10) days of having received written notice thereof.
Effect of Termination Upon Compensation. In the event of the termination of this Agreement prior to the completion of any term of services specified herein, the Contractor shall be entitled to the compensation earned by him prior to the date of termination as provided for in this Agreement computed pro-rata up to and including that date; the Contractor shall be entitled to no further compensation as of the date of termination.
Dispute Resolution. All determinations and calculations of compensation, Net Profits, and adjustments to any of the foregoing, shall be made by the certified public accountant regularly retained by the Company, whose determinations and calculations shall be final and not subject to dispute. [not sure if you need this as not sure how you are patying]
Prior Agreements. This Agreement supersedes in its entirety any and all prior agreements between Company and Contractor.
Invalid or Unenforceable Provisions. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted or modified by a court of competent jurisdiction in such a way as to make it valid and enforceable.
Benefit and Burden. This Agreement shall inure to the benefit of, and be binding upon, the parties and their heirs, successors and assigns. The provisions of Section 5 of this Agreement are specifically enforceable by any person who acquires all or substantially all of the assets of Company, and such person shall be considered a third party beneficiary hereof.
Waiver and Modification. No change or modification of this Agreement shall be valid unless it is in writing and is signed by the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the person against whom it is sought to be enforced. Failure of any party at any time to insist upon strict performance of a condition, promise, agreement, or understanding set forth herein, shall not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same condition, promise, agreement or understanding at a future time.
Headings. Headings and other captions in this Agreement are for convenience of reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
Gender. Whenever this Agreement refers to a party in any gender, it is understood that such person may be a male, female or legal entity.
Notice. All notices given under any provisions of this Agreement shall be deemed to have been duly given if mailed by registered or certified mail, return receipt requested; if delivered personally; or if sent by a commercial overnight courier, i.e., FedEx or UPS.
Notices shall be deemed effective when delivered in person or sent as required herein. An address referred to in this section may be changed from time to time by the party to whom that address refers by sending written notice to the other party in accordance with the terms of this paragraph.
Law Governing Agreement. This Agreement shall be governed, enforced and construed in accordance with the laws of the State of Florida.
Arbitration. Notwithstanding anything set forth in this Agreement to the contrary, other than items subject to specific performance, if a dispute arises out of or relates in any manner to the terms of this Agreement or the breach or interpretation thereof, the parties hereto covenant and agree that the same shall be resolved by arbitration, pursuant to the commercial arbitration rules of the American Arbitration Association. Said arbitration shall be held at a Regional Office of the American Arbitration Association closest to Company before a panel of three (3) neutral arbitrators, with said arbitration taking place within ninety (90) days following the filing of the Demand for Arbitration. Each party shall choose one arbitrator and the two so chosen shall promptly select a third arbitrator. If either Party refuses or neglects to appoint an arbitrator within thirty (30) days after the receipt of written notice from the other Party requesting arbitration and naming its arbitrator, the Requesting Party may name an arbitrator for the other Party. Unless otherwise provided for in this Agreement, each Party shall be responsible for their own costs and attorneys’ fees associated with any dispute. [I put this in at request of Robby, but not ure it will work for this type of agreement-in any event, may want to change to locate closer to contractor and then may be more likely to be enforceable] [in event you decide to delete, then would just add a jury trial waiver]
Interpretation. The parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
In witness whereof, the Company has by its appropriate officer signed this Agreement and affixed its seal and the Contractor has signed this Agreement, on the date first appearing above.
