This independent contractor agreement (the “Agreement”) is made and entered into as of September 1, 2018. (the “Effective Date”) between The Holler, LLC (the “Company”), a Kentucky Limited Liability Company and Courtney Bidwell (the “Contractor”) (collectively, the “Parties”).
The Company requests the Contractor to perform services for it and may request the Contractor to perform other services in the future; and
The Parties therefore agree as follows:
1.0.Term and Termination.
1.1. This Agreement takes effect immediately as of the Effective Date, and remains in full force and effect indefinitely or until the Contractor has completed the Services (the “Term“) agreed upon in this contract, unless earlier terminated under this Section 1.
1.2. Either Party may terminate this Agreement for cause by providing the other Party 30 days written notice if the other Party: (i) is in material breach of this Agreement and has failed to cure such breach within five (5) days after its receipt of written notice of such breach provided by the non-breaching Party; (ii) engages in any unlawful business practice related to that Party’s performance under the Agreement; or (iii) files a petition for bankruptcy, becomes insolvent, acknowledges its insolvency in any manner, or ceases to do business.
1.3. Covenant Not to Compete. Consultant agrees that at no time during the term of your Agreement with the Company will you engage in any business activity which is competitive with the Company nor work for any company which competes with the Company.
For a period of ten (10) years immediately following the termination of the Agreement, the Consultant will not, for yourself or on behalf of any other person or business enterprise, engage in any business activity which competes with the Company within 5 miles of a current client. Individual clients can be counted as an exclusion to this non-compete, if mutually agreed upon by the Parties.
1.4. Non-solicitation. During the term of this Agreement, and for a period of one (1) year immediately thereafter, the Consultant agrees not to solicit any employee or independent contractor of the Company on behalf of any other business enterprise, nor shall you induce any employee or independent contractor associated with the Company to terminate or breach an employment, contractual or other relationship with the Company.
1.5. Soliciting Customers After Termination of Agreement. For a period of two (2) years following the termination of this Agreement and your relationship with the Company, You shall not, directly or indirectly, disclose to any person, firm or corporation the names, contact information, or addresses of any of the customers or clients of the Company or any other information pertaining to them. Neither shall you call on, solicit, take away, or attempt to call on, solicit, or take away any customer of the Company on whom you have called or with whom you became acquainted during the term of your employment, as the direct or indirect result of your employment with the Company.
2.1. During the Term, the Company may engage the Contractor to provide the following services as needed (the “Services“), or other such services as mutually agreed upon in writing by the Parties (email is acceptable): selling to potential clients the agreed upon service offerings of the Company’s products, meeting with potential and current clients, carrying out the agreed upon strategy and implementation per the client’s contract, online advertising, copy writing for social media platforms, and ongoing analysis of the Consultant’s progress and the client’s platform.
2.2. The Contractor shall provide the necessary equipment to perform the Services. If the Contractor desires to have employees or agents (the “Contractor Personnel“), the Company will interview, approve, and assign the Contractor Personnel as needed, taking into consideration the desires of the Contractor.
2.3 As a result of providing the Services, the Contractor or Contractor Personnel may create certain work product (the “Work Product“). This Work Product is only to be completed by an approved Company employee or contractor.
2.4. The Contractor shall notify the Company of any change(s) to the Contractor’s schedule that could adversely affect the availability of the Contractor, whether known or unknown at the time of this Agreement, no later than 1 week prior to such change(s). If the Contractor becomes aware of such change(s) within the 1 week period, the Contractor shall promptly notify the Company of such change(s) within a reasonable amount of time.
2.5. The work performed by the Contractor shall be performed at the following rate: 50% commission of any social media management package sale and fulfillment, each month the client is with the Company and the identified Contractor. The Company will track clientele, the Contractor responsible, monthly rates, and issue payment at the end of each month to the Contractor. Projects outside of social media management will be commissioned at a mutually agreed upon rate.
2.6. The Company shall not be responsible for federal, state and local taxes derived from the Contractor’s net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers’ compensation, disability benefits or other legal requirements applicable to the Contractor.
3.0.Independent Contractor Status.
3.1. The Parties intend that the Contractor and any Contractor Personnel be engaged as independent contractors of Company. Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
3.2. The Contractor may not act as agent for, or on behalf of, themselves or any other organizational entity in any manner while under contract with the Company.
3.3. The Contractor will not be entitled to worker’s compensation, retirement, insurance or other benefits afforded to employees of the Company.
4.1. The Parties intend that, to the extent the Work Product or a portion of the Work Product qualifies as a “work made for hire,” within the definition of Section 101 of the Copyright Act of the United States (17 U.S.C. § 101), it will be so deemed a work made for hire. If the Work Product or any portion of the Work Product does not qualify as work made for hire, and/or as otherwise necessary to ensure the Company’s complete ownership of all rights, titles and interest in the Work Product, the Contractor shall transfer and assign to the Company all rights, titles and interests throughout the world in and to any and all Work Product. This transfer and assignment includes, but is not limited to, the right to publish, distribute, make derivative works of, edit, alter or otherwise use the Work Product in any way the Company sees fit.
4.2. The Contractor does not own any clientele records, assets, online profiles, graphics, video, photography, or any other Work Product associated with the Services. If the Contractor desires to redisplay the Work Product on an outside platform, permission must be given (email permission is permitted).
5.0. Representations. Both Parties represent that they are fully authorized and empowered to enter into this Agreement, and that the performance of the obligations under this Agreement will not violate or infringe upon the rights of any third-party, or violate any agreement between the Parties and any other person, firm or organization or any law or governmental regulation.
6.0. Indemnification. The Contractor shall indemnify and hold harmless the Company, its affiliates, and its respective officers, directors, agents and employees from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of, or relating to, the Contractor’s services under this Agreement.
7.1 Each Party (on its behalf and on behalf of its subcontractors, employees or representatives, or agents of any kind) agrees to hold and treat all confidential information of the other Party, including, but not limited to, trade secrets, sales figures, employee and customer information and any other information that the receiving Party reasonably should know is confidential (“Confidential Information”) as confidential and protect the Confidential Information with the same degree of care as each Party uses to protect its own Confidential Information of like nature.
7.2 Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publically available sources generally known by the public (other than as a result of a disclosure by the receiving Party or its representatives); (ii) is available to the receiving Party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving Party without violating its obligations under this Agreement or under any federal or state law.
8.0. 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 WITHOOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.
9.0. Disclaimer of Warranty. THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. EACH PARTY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY DOES NOT PROVIDE ANY WARRANTY THAT OPERATION OF ANY SERVICES HEREUNDER WILL BE UNINTERRUPTED OR icROR-FREE.
10.0 Miscellaneous Provisions.
10.1. 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.
10.2. This Agreement may be amended only by written agreement duly executed by an authorized representative of each party.
10.3. 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.
10.4. This Agreement shall not be assigned by either party without the express consent of the other party.
10.5. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
10.6. This Agreement is be governed by and construed in accordance with the laws of the Commonwealth of Kentucky without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either party arising out of this Agreement will only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in the Commonwealth of Kentucky. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN THE COMMONWEALTH OF KENTUCKY.
The Parties are signing this Agreement on the date stated in the introductory clause.