BETWEEN: STUDENT MOVERS, INC., a California Corporation. Hereinafter referred to as “COMPANY”
AND: THE INDEPENDENT CONTRACTOR. Hereinafter referred to as “CONTRACTOR”
The COMPANY and CONTRACTOR hereinafter are collectively referred to as the “PARTIES”
WHEREAS, COMPANY desires to engage and contract for the services of the CONTRACTOR to perform certain tasks as set forth below. CONTRACTOR desires to enter into this Agreement and perform as a CONTRACTOR for the COMPANY and is willing to do so on the terms and conditions set forth below.
RELATIONSHIP OF THE PARTIES: STATUS AS INDEPENDENT CONTRACTOR
WHEREAS, this Independent Contractor Agreement does not constitute a hiring by either party, it is their intention that the 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 California State Revenue and Taxation Code relating to income tax withholding at the source of income. Workers’ Compensation Insurance, 401(k) plans and other benefit payments and their liability claims. CONTRACTOR shall retain sole and absolute discretion in the manner and means of carrying out its activities and responsibilities under this Agreement. This Agreement shall not be considered or construed to be a partnership or joint venture, and the COMPANY shall not be liable for any obligations incurred by CONTRACTOR unless specifically authorized in writing. CONTRACTOR shall not act as an agent of the COMPANY, nor bind the COMPANY in any manner, unless specifically authorized to do so in writing.
CONTRACTOR shall provide Independent Contractor Services to COMPANY as described by this Agreement commencing on Commencement Date as listed on Exhibit “A” of this Agreement and by this reference incorporated herein.
This Agreement may be terminated by either party by written notice prior to the expiration of the term only for cause, which shall mean a material breach of the Agreement. Such termination shall not prejudice any other remedy to which either PARTY may be entitled either by law, in equity or under this Agreement.
The PARTIES may mutually agree to submit the termination issue to mediation to determine materiality of breach.
THE PARTIES may mutually agree to terminate this Agreement.
TASKS, DUTIES AND “SCOPE OF WORK”
- CONTRACTOR agrees to devote as much time, attention and energy as necessary to complete or achieve the task, duties and “Scope of Work” as more fully described in Exhibit “A” of this Agreement, which by this reference is incorporated.
- It is expected that the “Scope of Work” will be completed by the date described in Exhibit “A” of this Agreement and by this reference incorporated.
- CONTRACTOR shall additionally perform any and all tasks and duties associated with the “Scope of Work” set forth above, including but not limited to, work being performed already or related change orders. CONTRACTOR shall be entitled to engage in other activities which are not expressly set forth by this Agreement. CONTRACTOR may have several jobs or work for others at the same time when working on the “Scope of Work” for COMPANY.
- The books and records related to the “Scope of Work” set forth in this Agreement shall be maintained by the CONTRACTOR at the CONTRACTOR’S principal place of business and open to inspection by COMPANY during regular working hours. Documents to which COMPANY will be entitled to inspect include, but are not limited to, any and all contract documents, change orders/purchase orders and work authorized by COMPANY on existing or potential projects related to this Agreement.
- CONTRACTOR will not be required to follow or establish a regular or daily work schedule and shall establish own hours and determine the order and sequence in which it will perform its work as well as when and where to do the work.
- CONTRACTOR shall determine what tools or equipment to use and shall supply them.
- CONTRACTOR is hired only to produce the “Scope of Work” and COMPANY will not control the means or methods of accomplishing the “Scope of Work.” COMPANY specifically waives its right to control the details of CONTRACTOR’S performance.
- CONTRACTOR will not rely on the equipment or offices of COMPANY for completion of tasks and duties set forth pursuant to this Agreement.
- Any advice given CONTRACTOR regarding the “Scope of Work” shall be considered a suggestion only, not an instruction. COMPANY, however, retains the right to inspect, stop or alter the work of CONTRACTOR to assure its conformity with the Agreement.
- CONTRACTOR acknowledges that it will establish its own procedures to accomplish the “Scope of Work” and has received no training from COMPANY and that CONTRACTOR may utilize others to perform job tasks and duties to perform “Scope of Work.” CONTRACTOR controls what work is to be performed by what individual and what works to hire, if needed, to assist with the work.
- CONTRACTOR further acknowledges it will not be supervised by a foreman or representative of the COMPANY.
COMPENSATION OF CONTRACTOR
CONTRACTOR shall be entitled to compensation for performing those tasks and duties related to the “Scope of Work” as described in Exhibit “A” and by this reference incorporated.
- Nothing herein as to payment shall be construed to create an employer-employee relationship between the PARTIES.
- The compensation in Exhibit “A” shall be the sole payment due for “Scope of Work.”
- It is understood that the COMPANY will not withhold any amounts for payment of taxes from the compensation of CONTRACTOR and that CONTRACTOR will be solely responsible to pay all applicable taxes from said compensation.
NOTICE: 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. CONTRACTOR hereby promises and agrees to indemnify the COMPANY for any damages or expenses, including attorney’s fees and legal expenses, incurred by the COMPANY as a result of CONTRACTOR’S failure to make such required payments.
CONTRACTOR’S AGREEMENT TO WAIVE RIGHTS TO COMPANY’S BENEFITS
CONTRACTOR hereby expressly waives and foregoes the right to receive any benefits given by COMPANY to its regular employees, including, but not limited to, health benefits, vacation and sick leave benefits, and 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 CONTRACTOR by virtue of CONTRACTOR services to COMPANY, and is effective for the entire duration of CONTRACTOR’S agreement with COMPANY. This waiver is effective independently of CONTRACTOR’S employment status as adjudged for taxation purposes or for any other purpose.
NON-DISCLOSURE OF TRADE SECRETS CUSTOMER LISTS PROPRIETORY INFORMATION
CONTRACTOR agrees not to disclose or communicate, in any manner, either during the term of the Agreement and for a period of one year immediately after the expiration of the Agreement or following termination of the Agreement whether voluntary or involuntary or after CONTRACTOR’S Agreement with COMPANY information about COMPANY, its operations, clientele, or any other information, that relates to the business of COMPANY including, but not limited to, the names of its customers, its 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 COMPANY. CONTRACTOR acknowledges that the above information is material and confidential and that it affects the profitability of COMPANY. CONTRACTOR understands that any breach of this provision, or that of any other Confidentiality and Non-Disclosure Agreement, is a material breach of this Agreement. To the extent CONTRACTOR feels they need to disclose confidential information, they may do so only after obtaining prior written authorization from an officer of the COMPANY.
CONTRACTOR shall not during this Agreement and for a period one year immediately following termination of this Agreement, either directly or indirectly, call on, solicit, or take away, or attempt to call on, solicit, or take away, any of the customers or clients of the COMPANY on whom CONTRACTOR called or became acquainted with during the terms of this Agreement, either for their own benefit, or for the benefit of any other person, firm, corporation or organization.
CONTRACTOR acknowledges that as a condition to entering into this Agreement, it agrees that it will not engage in any business that competes with COMPANY, disrupt, impair or interfere with the business of COMPANY by way of or interfering with or raiding COMPANY’S employees or other contractors or disrupt COMPANY’S relationships with its clients, potential clients, agents, vendors, representatives or otherwise.
For a period during the term of the Agreement and for a period of one year immediately after the expiration of the Agreement or following termination of the Agreement whether voluntary or involuntary or after CONTRACTOR’S Agreement is completed with COMPANY, INDEPENDENT CONTRACTOR shall not:
- Directly or indirectly, either as an employee, independent contractor, consultant, partner, shareholder, officer, director, engage or participate in a business competitive with that of COMPANY within a 200 mile radius of Huntington Beach, California, so long as the COMPANY carries on a like business.
- CONTRACTOR acknowledges that this non-compete clause is material and confidential and that it affects the profitability of COMPANY. CONTRACTOR understands that any breach of this provision, is a material breach of this Agreement.
RETURN OF PROPERTY
On termination of this Agreement, or whenever requested by the PARTIES, each PARTY shall immediately deliver to the other party all property in its possession, or under its care and control, belonging to the other party to them, including but not limited to, proprietary information, customer lists, trade secrets, intellectual property, computers, equipment, tools, documents, plans, recordings, software, and all related records or accounting ledgers.
CONTRACTOR and the COMPANY agree to maintain separate accounts in regards to all expenses related to performing the “Scope of Work.” CONTRACTOR is solely responsible for payment of expenses incurred pursuant to this Agreement unless provided otherwise in writing by an officer of the COMPANY. CONTRACTOR agrees to execute and deliver any agreements and documents prepared by COMPANY and to do all other lawful acts required to establish document and protect such rights.
WORKS FOR HIRE
CONTRACTOR agrees that the “Scope of Work”, all tasks, duties, results, inventions and intellectual property developed or performed pursuant to this Agreement are considered “works for hire” and that the results of said work is by virtue of this Agreement assigned by the COMPANY and shall be the sole property of COMPANY for all purposes, including, but not limited to, copyright, trademark, service mark, patent, and trade secret laws.
CONTRACTOR is encouraged to treat all company employees, customers, clients, business partners and other affiliates with respect and responsibility. CONTRACTOR is required to comply with all laws, ethical codes and company policies, procedures, rules or regulations, including those forbidding sex harassment, discrimination, and unfair business practices.
LICENSING, WORKERS’ COMPENSATION
AND GENERAL LIABILITY INSURANCE
- CONTRACTOR agrees to immediately supply the COMPANY with proof of any licensing status required to perform the “Scope of Work” pursuant to this Agreement, Workers’ Compensation Coverage where required by law and General Liability Insurance, upon request of the COMPANY.
- Further, CONTRACTOR warrants and represents that it has complied with all federal, state and local laws regarding business permits, sales permits, licenses, reporting requirements, tax withholding requirements and other legal requirements of any kind that may be required to carry out its business and the “Scope of Work” which is to be performed as a CONTRACTOR pursuant to this Agreement.
- Unless otherwise agreed to in advance, in writing, CONTRACTOR shall be solely responsible for furnishing and paying for materials, supplies and expenses necessary or appropriate for the CONTRACTOR’S performance of the “Scope of Work” subject of this Agreement.
Any notice to be given hereunder by any party to the other may be affected either by personal delivery in writing, or by mail, registered or certified, postage pre-paid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing at the end of this Agreement, but each party may change their address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of five (5) days after mailing. CONTRACTOR agrees to keep COMPANY current as their business and mailing addresses, as well as telephone, fax, e-mail and cell phone numbers.
ATTORNEY’S FEES AND COSTS
If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements incurred both before or after judgment in addition to any other relief to which such party may be entitled.
REMEDY OF BREACH
The PARTIES hereto agree that, in the event of breach or threatened breach of any covenants of CONTRACTOR, the damage or imminent damage to the value and the goodwill of the COMPANY’S business shall be inestimable, and that therefore any remedy at law or in damages shall be inadequate. Accordingly, the PARTIES hereto agree that the COMPANY shall be entitled to injunctive relief against CONTRACTOR in the event of any breach or threatened breach of any of such provisions by CONTRACTOR, in addition to any other relief (including damages) available to the COMPANY under this Agreement or under law.
CONTRACTOR shall defend, indemnify, hold harmless, and insure COMPANY from any and all damages expenses or liability resulting from or arising out of, any negligence or misconduct on CONTRACTOR’S part, or from any breach or default of this Agreement which is caused or occasioned by the acts of CONTRACTOR. CONTRACTOR shall insure that its employees and affiliates take all actions necessary to comply with the terms and conditions set forth in this Agreement. CONTRACTOR shall name COMPANY as an additional insured on all related insurance policies including workers’ compensation and general liability.
CONSTRUCTION OF AGREEMENT
- The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning and not strictly for or against either party.
- 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 it is in writing, signed and dated by all parties hereto.
- If any provision of this Agreement is held by a Court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.
- This Agreement shall be governed by, and construed under, the laws of the State of California. Jurisdiction and venue for all purposes shall be in the County of Orange.