I. Parties
This Independent Consultant Application and Agreement (hereinafter referred to as “IC Agreement”) shall be binding between PEAS Corps, LLC dba PEAS Corps with its corporate address at 555 Third Avenue, 5th Floor – New York, NY 10022 (hereinafter referred to as “The Company”) and the undersigned and contracted independent consultant (hereinafter referred to as “Independent Consultant or IC”).
NOW THEREFORE, in consideration of the mutual covenants contained herein, the Independent Consultant and The Company hereby agree as follows:
II. Intention to Enter Agreement
Independent Consultant desires to enter into such a business utilizing the products and/or services provided by The Company and agrees to the covenants of the agreement contained in this document.
III. Mutual Confidentiality, Disclosure, Nondisclosure & Non-circumvention
WHEREAS, The Company has certain property intellectual, and otherwise, related to a business venture, including any and all concepts, systems, programs, files, computer information, written material, art, film, graphics, forms, data, client or prospect lists, knowledge, copyrights and/or trademarks applicable thereto (collectively known as the “Concept”), which it deems confidential, and specifically relating to the sale and/or marketing of such concepts and information; and whereas the Independent Consultant has certain client and/or prospect lists and documents pertaining to such clients/prospects which Independent Consultant deems confidential;
WHEREAS, The Company is willing to disclose information concerning the Concept to Independent Consultant; and,
WHEREAS, The Company is willing to provide information, contact with, or may disclose existing, pending, or possible business relationships between The Company and other parties; and,
WHEREAS, Independent Consultant hereby agrees not to circumvent The Company by using or attempting to use either the Concept or existing, pending, or possible business relationships, for its or their own gain to the detriment of The Company.
NOW THEREFORE, in consideration of the foregoing promises and the mutual covenants hereinafter set forth as other valuable considerations, the parties agree as follows:
DISCLOSURE:
(a) The Company shall disclose such information as it may have, or subsequently develop or obtain, as requested by Independent Consultant with regard to the Concept.
(b) The Independent Consultant shall disclose at the time of executing this IC Agreement and in the future, should any arise, all potential conflicts of interest that may exist or arise by virtue of the Independent Consultant selling and/or marketing any other product or service whatsoever. The Independent Consultant shall make such disclosure in the space provided directly above the signature section of this IC Agreement. Subsequent disclosures shall be made to The Company in writing within thirty (30) days prior to consummating an agreement to represent such potentially conflicting product or service.
(c) The Company may decline to execute this IC Agreement, if any of the disclosed potential conflicts of interest, in the sole discretion of The Company, represent a significant risk to The Company and its present or contemplated business relationships with other companies.
(d) If any future disclosure by the Independent Consultant constitutes, in the sole discretion of The Company, a significant risk to The Company’s business relationships with other companies of which products and/or services are sold or marketed through The Company, The Company may notify Independent Consultant that it or they must cease and desist from representing such other product and/or service, or risk termination of this IC Agreement as a material breach.
PURPOSE: Independent Consultant agrees that this disclosure is for the purpose of its or their engaging in the Concept and in the interest or the potential interest of its or their client(s) or potential client(s) in the Concept.
LIMITATIONS ON USE: Independent Consultant agrees not to manufacture, use, sell, deal in, duplicate or otherwise use or appropriate the disclosed information about the Concept in any way whatsoever, except for the purpose stated herein. Independent Consultant is specifically prohibited from adapting, imitating, redesigning, altering, or modifying in any way the Concept or information provided about the products and/or services covered by the Concept. Nothing contained in this IC Agreement shall be deemed to give Independent Consultant any rights whatsoever to the Concept.
CONFIDENTIALITY: As consideration and in return for the disclosure of information concerning the Concept, Independent Consultant acknowledges that the information is the sole proprietary property of The Company and shall treat the information as if it were its or their own proprietary property. Independent Consultant further agrees not to discuss or disclose the information concerning the individuals directly and/or indirectly associated with, employed by, or sharing ownership of The Company, except as authorized by the The Company.
CIRCUMVENTION: Independent Consultant understands that the information may disclose existing, pending, or possible business relationships between The Company and/or other parties. Independent Consultant agrees with respect to the Concept, not to deal with or attempt to deal directly and/or indirectly with such other parties as may be disclosed in the information, except as authorized by The Company, and acknowledges that such direct and/or indirect contact could irreparably damage The Company.
WAIVER OF BREACH: All parties hereto reserve the right to waive any breach by the other party of any covenant of this IC Agreement without prejudice to enforcement of any future breach, at the discretion of the party who previously waives any breach hereto.
IV. Definitions
Independent Consultant – A person or entity that has, on record, signed contracts and is authorized by The Company, through the issuance of an Independent Consultant number to sell and/or market approved products and/or services offered by The Company. Any reference to Independent Consultant in this IC Agreement shall include, without limitation, any Affiliates of Independent Consultant. If Independent Consultant is a corporation, those same restrictions shall apply to each officer, director, shareholder of Independent Consultant and each employee or agent thereof who carries out the duties of Independent Consultant under the agreement between The Company and Independent Consultant.
Affiliates of Independent Consultant – The Independent Consultant and its or their affiliates shall include, without limitation, any business enterprise, joint venture, corporation, partnership, proprietorship, agent, agency, representative, subcontractor or employee with whom Independent Consultant is now or may hereafter become affiliated, directly or indirectly, in connection with the securing and filling of orders for products and/or services on behalf of The Company.
Corporate Status – If the Independent Consultant executing this IC Agreement is a corporation, LLC, and/or partnership then such Independent Consultant hereby represents and warrants to The Company that the Independent Consultant is duly organized, validly existing and in good standing under the laws of state of incorporation, and is duly qualified to do business in each state comprising part of its Territory. Said Independent Consultant further represents and warrants to the Company that the execution and delivery of this IC Agreement by Independent Consultant has been duly authorized by all necessary corporate action of such Independent Consultant, and that this IC Agreement constitutes a valid and binding obligation of the Independent Consultant, enforceable in accordance with its terms.
Agreement(s) – Any and all Agreements, addenda, Policies and Procedures, Code of Conduct, and/or other pertinent documents of The Company (hereinafter collectively referred to as “Agreement(s)”).
Active Independent Consultant – An Independent Consultant maintains active communication with The Company as measured by paying the monthly subscription fee for The Company Office Suite and continues to actively perform in its or their role as an Independent Consultant, by complying with all of The Company’s Agreement(s).
Active Independent Consultant’s Accounts – Any and all of its or their current accounts which have at least reached the proposal stage, such as a completed and presented cost analysis, as well as any and all current Accounts that have been deemed by The Company’s Compliance Department as being its or their Accounts. If said determination is appealed, a final and binding determination shall be made by The Company’s Dispute Resolution Board.
Material Breach – Violation of any provision of this IC Agreement, including provisions incorporated by reference, such as Agreement(s), if such violation causes, or is reasonably expected to cause substantial pecuniary damage or other measurable substantial injury compensable as a tort under the laws of New York, to The Company, its business partners’ companies, alliances and/or affiliates with which The Company has a business relationship, this shall constitute a Material Breach. If the IC commits any offense and/or is in violation with any term and/or condition of any Agreement(s) between the parties, this shall also constitute a Material Breach if not remedied and/or cured as follows:
The Company shall provide written notice of the specific offense and/or violation and give the IC a ten (10) day written notice period to remedy and/or cure said offense and/or violation, furnishing the IC with the required remedy and/or cure. The IC shall then take appropriate and necessary action(s) within the ten (10) day notice period to fully remedy and/or cure said offense and/or violation, subsequent to ten (10) day written notice being given by the Company. The IC shall further comply within that ten (10) day notice period with the requirement to substantiate in writing regarding the definitive action(s) taken to remedy that offense and/or violation, or if not, then such action can reasonably be deemed as a Material Breach and subject to termination in the sole discretion of The Company as defined in this IC Agreement. Independent Consultant, therefore, expressly agrees that The Company shall further be entitled to injunctive or other equitable relief to such Material Breach in addition to any other remedies legally available to The Company, including recovery of reasonable attorney’s fees, costs, and other expenses.
It is not a material breach if:
(a) The Independent Consultant fails to comply with any quota or minimum production requirement that may be imposed by The Company or its successors or assigns, subsequent to the execution of this IC Agreement.
(b) The Independent Consultant establishes in an arbitration proceeding by a preponderance of the evidence that the principal reason this IC Agreement was terminated was to deprive the Independent Consultant of commissions, bonuses and/or overrides due and payable for future business activity and contract renewals attributable to the efforts of the Independent Consultant.
V. Payment of Commissions and/or Bonuses
The Selling Independent Consultant will be paid a 52.5% commission on the products and/or services they are responsible for, based on revenues to The Company from their efforts as well as, as applicable, bonuses and/or overrides on Sales as may be set forth in the Agreement(s).
VI. Charge-backs
A commission and/or bonus charge-back would occur if a commission and/or bonus is paid to the wrong independent consultant or due to a commission and/or bonus miscalculation. A commission and/or paid to an independent consultant in error must be returned to The Company within five (5) business days.
VII. Code of Conduct
By signing this IC Agreement, the Independent Consultant understands and agrees that they have been provided with a copy of The Company’s Code of Conduct and agrees to conduct its or their own business according to the mandates set forth within it. The Code of Conduct can change per management’s discretion at any time and the Independent Consultant understands and agrees to conduct its or their own business according to the mandate set forth in the revised Code of Conduct. Upon revision, The Company will provide a copy to all Independent Consultants by posting it within the documents section of The Company’s Office Suite.
VIII. Legal Compliance
The parties agree to comply with all local, state, and federal law, regulations, statutes and ordinances governing the relationships and activities of the parties.
IX. Independent Consultant’s Personal Background
By signing this IC Agreement, the Independent Consultant understands and agrees that the Independent Consultant has been given notice and authorizes The Company to procure a criminal background check and verification of any pertinent licenses at any time while an independent consultant remains Active. The Independent Consultant also agrees to verifications of the Independent Consultant’s social security number. In the event the Independent Consultant resides outside of the United States of America, Independent Consultant agrees to verification of such personal identification numbers, codes, or other methodology used by its or their presiding government to affirmatively identify themselves as citizens of such country. No independent consultant is authorized to sell products and/or services on behalf of The Company if the independent consultant has ever been convicted of a felony or a criminal misdemeanor involving fraud and/or any related statute or regulation. The Company recognizes the necessity of keeping such Social Security information secure and commits to so doing.
X. Independent Consultant
Independent Consultant is hereby granted by The Company the ability to refer its or their clients to The Company who desire to utilize products and/or services conditioned upon the following:
(a) NON-EXCLUSIVITY: For so long as Independent Consultant maintains the published standards of the business within this IC Agreement, The Company will permit the non-exclusive use of its business model by the Independent Consultant during the term of this IC Agreement or any renewal period.
(b) NON-DISCLOSURE: Independent Consultant will not disclose to any third parties any information regarding the business of The Company that has been designated as “for internal purposes only,” except as previously authorized in writing by The Company. Notwithstanding, Independent Consultant shall be allowed to disclose other information regarding the business of The Company, not designated as “for internal purposes only”, to its or their current and/or potential clients. Independent Consultant’s sharing of information is limited to only those products and/or services that they are approved to sell and/or market by The Company. Should Independent Consultant provide any information of said business without the consent of The Company, Independent Consultant shall be liable for damages for each instance of the breach of confidentiality.
(c) SCOPE: It is hereby specifically agreed between the parties that, because the provisions of this IC Agreement cannot feasibly be limited geographically, this provision shall be limited in scope to Independent Consultant’s involvement in any product and/or service that The Company currently sells and/or markets at the date of the signing of this IC Agreement and will include all future product and/or services that may be introduced and/or sold and/or marketed by The Company that Independent Consultant may desire to sell and/or market. Independent Consultant and The Company would need to sign an Addendum specific to any future product and/or service. Once an Addendum is signed the product and/or service listed in such Addendum would be included in Scope. The provisions of this paragraph shall in no way limit any other facet of Independent Consultant’s current active business that they may be engaged in at the date of the signing of this IC Agreement.
XI. Covenants and Representations of Independent Consultant
Independent Consultant makes the following covenants and representations:
(a) Independent Consultant shall be honest and truthful in all dealings with its or their clients regarding all offered products and/or services and shall not misrepresent the qualities or attributes of such products and/or services. Independent Consultant shall comply with The Company’s Code of Conduct and Policies and Procedures for the referral of potential clients to The Company and the disclosure of any risks that may be involved to potential clients and will ensure that all necessary disclosures and contracts are read and understood by its or their clients and are fully executed where necessary.
(b) Independent Consultant shall only solicit and refer its clients to The Company who meet financial and other suitability standards to purchase products and/or services as established by The Company, as communicated by The Company to Independent Consultant, which from time to time may be amended to reflect changes in law, statute or in The Company’s business practices. Independent Consultant will make all suitability determinations with respect to its or their clients prior to referring said clients to The Company.
(c) Unless express written approval is provided by The Company, Independent Consultant shall not offer the opportunity to purchase products and/or services by means of any form of general solicitation or general advertising including, but not limited to, the following:
(i) any advertisement, article, notice and/or other communication mentioning The Company’s products and/or services published in any newspaper, magazine or similar medium or broadcast over television, radio, or internet;
(ii) any seminar or meeting whose attendees have been invited by any general solicitation and/or general advertisement;
(iii) any telephone, internet, mail (paper or electronic) or other communication not limited in dissemination to only individuals whom the Independent Consultant knows to be a qualified person or corporation prior to said dissemination;
(iv) any generally accessible web page or other electronically accessible medium.
(d) Independent Consultant shall submit to The Company for written approval any and all advertising, sales and/or marketing materials, which in any way reference products and/or services of The Company, prior to disseminating said advertisements or sales and/or marketing material. Independent Consultant shall not use any such advertising or sales and/or marketing material unless and until The Company furnishes written approval.
(e) Independent Consultant may not utilize social media platforms and/or websites, without prior express written approval, for indicating affiliation with The Company and the products and/or services represented by the Independent Consultant. The Company, in its sole discretion, may determine whether any social media and/or website interaction by the Independent Consultant is, or may be, harmful to the brand image and interests of The Company and other companies with which it has business relationships or affiliations. In such case, The Company may direct Independent Consultant to remedy such offending social media and/or website content or risk termination for material breach of this IC Agreement.
XII. Representation and Nature of Relationship
Independent Consultant should not imply, whether directly or indirectly, any relationship with said product and/or service providers other than this stated relationship:
The Company has contracts and relationships with various companies and is authorized to sell and/or market such companies’ products and/or services. As part of its business model, The Company recruits and develops relationships with independent consultants.
It is understood and agreed that the relationship of the Independent Consultant to The Company is that of an independent contractor, and that neither this IC Agreement, nor the relationship between the parties hereto constitutes a partnership, joint venture, employer/employee, agency,
representative or franchise relationship and neither party shall state or imply that any such relationship exists or is anything other than that of an independent contractual relationship. The Company has no right to interfere in any manner in the business affairs of the Independent Consultant outside of the covenants of this IC Agreement, and Agreement(s), or to employ or discharge any employee of the Independent Consultant. Independent Consultant has no power to, and agrees not to, obligate, represent, or bind The Company in any manner, and will not represent to any party that it or they have such power or authority.
Independent Consultant is an independent contractor and as such, agrees to the following:
(a) Independent Consultant is ultimately responsible for its or their own business decisions and subsequent actions and must further determine in its or their sole discretion, when it or they will work and the number of hours it or they will work.
(b) Independent Consultant will be paid commissions and/or bonuses based solely on sales and not the number of hours worked.
(c) Independent Consultant is subject to entrepreneurial risk and is responsible for any and all losses that may be incurred during its or their performance as an independent contractor for The Company.
(d) Independent Consultant must pay its or their own license fees and any insurance premiums if applicable, and if required, obtain a federal employment identification number.
(e) Independent Consultant is responsible for all costs of doing business including, but not limited to, travel, entertainment, office, clerical, legal, equipment, accounting, and general expenses without advances, reimbursement, or guarantee from The Company.
(f) Independent Consultant will not be treated as an employee for federal or state tax purposes. As Independent Consultant meets the current commission and/or bonus threshold, as determined by Internal Revenue Service Code, Independent Consultant will receive a Federal Internal Revenue Service form 1099 reflecting commissions and/or bonuses that The Company has paid in a calendar year.
All independent consultants will be paid its or their or their entire gross commissions and/or bonuses and all are solely responsible for its or their own record keeping and payment of its or their income taxes, self-employment taxes, and employees’ salaries, if any. The Independent Consultant also has the responsibility for its or their employees and where applicable, compliance with all federal, state and local laws, rules regulations and statutes.
XIII. No Authority to Act On Behalf of The Company
Independent Consultant does not have the authority to represent itself or themselves as The Company or to act on behalf of The Company. This includes, but is not limited to, any attempt to:
(a) Register or reserve The Company’s names, trademarks, trade names, products and/or services; register URLs using The Company names, trademarks or trade names; register or secure approval for products and/or services or business practices; or establish business and/or governmental contracts of any kind on behalf of The Company.
(b) Independent Consultant must indemnify The Company for all costs and reasonable attorney’s fees incurred by The Company for any remedial action needed to exonerate The Company in the event Independent Consultant improperly acts on behalf of The Company. Independent Consultant must immediately assign to The Company any registration of The Company’s names, trademarks, trade names, products and/or services, or URL’s registered or reserved in violation of this Section without The Company’s reimbursement of any of the costs incurred by Independent Consultant in so doing.
XIV. Designation as Employer Prohibited
Independent Consultant shall not identify The Company as its or their employer on loan applications, government forms, employment verification requests, applications for unemployment compensation, or on any other form or document.
XV. Disclosure and Marketing Practices Acknowledgement
Independent Consultant agrees to the following:
(a) Independent Consultant will use only the term “Independent Consultant” or “Outsource Resource” when describing its or their relationship to The Company unless otherwise authorized by The Company. Independent Consultant will not claim to be an employee, officer, or use any other title with respect to The Company without the prior express written consent by The Company.
(b) Independent Consultant will not use The Company name or logo on any business cards, Website or social media platform, stationary or signage without the express written permission of The Company.
(c) Independent Consultant will maintain the very highest business standards and ethics, and
will act in the best interests of both the client and The Company at all times.
XVI. Term of Agreement
The Term of this IC Agreement shall be for a period of one (1) year from the date of execution by Independent Consultant and shall automatically renew for additional one (1) year periods thereafter, unless the IC Agreement has been terminated by either party hereto in writing no later than ten (10) days prior to such renewal date.
XVII. Termination and Affect Upon Compensation
(a) By The Company For Material Breach
(i) This IC Agreement may be terminated by The Company upon ten (10) days written notice to the Independent Consultant for any material or uncured breach, including, but not limited to, failure to pay The Company’s Office Suite subscription fee.
(ii) The Independent Consultant so terminated, shall only be entitled to receive ten percent (10%) of all compensation, commissions and/or bonuses accruing on the Independent Consultant’s contracted accounts for that product and/or service sold by it or them prior to said termination for the period of twenty-four (24) months following the date of termination, or until such time as The Company and its successors and/or assigns, if any, no longer receive any form of payment from such customer contracts, whichever comes first, and shall be required to maintain its or their status as an Active Independent Consultant with The Company as defined in this IC Agreement, except the need to pay its or their monthly subscription fee for The Company Office Suite, to receive and/or continue to receive any compensation earned by and/or due to said IC and/or their stated successors, heirs, estates and/or assigns.
(iii) In the event that Independent Consultant intentionally engages in post-termination activity harmful to The Company, including, but not limited to, material breach of any of the obligations that survive termination, The Company reserves the right to elect to cease compensation payments to the Independent Consultant altogether or in part, in The Company’s sole discretion.
(b) By The Company Without Citing a Material Breach or Cause
(i) This IC Agreement may be terminated by The Company upon ten (10) days written notice to the Independent Consultant without citing any material breach or cause.
(ii) The Independent Consultant so terminated, shall be entitled to receive ninety percent (90%) of all compensation, including but not limited to renewals, accruing on its or their contracted accounts for that product and/or service sold by it or them prior to said termination, as well as on any of those same products and/or services additionally sold by The Company to said client(s) within twenty-four (24) months from the date of said termination, and shall be entitled to receive such compensation, until such time as The Company and its successors and/or assigns, if any, no longer receive any form of payment from such customer contracts, and shall be required to maintain its or their status as an Active Independent Consultant with The Company as defined in this IC Agreement, except the need to pay its or their monthly subscription fee for The Company Office Suite, to receive and/or continue to receive any compensation earned by and/or due to said IC and/or their stated successors, heirs, estates and/or assigns.
(iii) In that case, The Company shall make arrangements for another independent consultant to assume the duties of servicing and managing the account for which they will receive a 10% managing/servicing compensation for that account from said IC’s commission.
(iv) In the event that Independent Consultant intentionally engages in post-termination activity harmful to The Company, including, but not limited to, material breach of any of the obligations that survive termination, The Company reserves the right to elect to cease compensation payments to the Independent Consultant altogether or in part, in The Company’s sole discretion.
(c) By the Independent Consultant
(i) The Independent Consultant may terminate this IC Agreement for any reason upon ten (10) days written notice to The Company.
(ii) The Independent Consultant shall be entitled to receive fifty-two point five percent (52.5%) of all compensation, commissions and/or bonuses accruing on the Independent Consultant’s contracted accounts for that product and/or service sold by it or them prior to said termination for the period of twenty-four (24) months following the date of termination, or until such time as The Company and its successors and/or assigns, if any, no longer receive any form of payment from such customer contracts, whichever comes first, and shall be required to maintain its or their status as an Active Independent Consultant with The Company as defined in this IC Agreement, except the need to pay its or their monthly subscription fee for The Company Office Suite, to receive and/or continue to receive any compensation earned by and/or due to said IC and/or their stated successors, heirs, estates and/or assigns.
(iii) In the event that Independent Consultant intentionally engages in post-termination activity harmful to The Company, including, but not limited to, material breach of any of the obligations that survive termination, The Company reserves the right to elect to cease compensation payments to the Independent Consultant altogether or in part, in The Company’s sole discretion.
(d) By Operation of Law
(i) If this IC Agreement is terminated by operation of law, including, but not limited to, laws governing merger or dissolution of business entities, conservatorship in the case of a legally incapacitated party to this IC Agreement, succession in case of death of a party, or by judicial order such as in bankruptcy proceedings, then the intention of the parties is, to the extent possible, to treat the termination as if it were not for material breach, and in favor of the Independent Consultant and its or their successors and/or assigns in interest—and not as a termination by the Independent Consultant.
(ii) The Independent Consultant and its or their successors and/or assigns, so terminated, shall be entitled to receive fifty-two point five percent (52.5%) of all compensation, including but not limited to renewals, accruing on its or their contracted accounts for that product and/or service sold by it or them prior to said termination, as well as on any of the same products and/or services additionally sold by The Company within one (1) year from the date of said termination, and shall be entitled to receive such compensation until such time as The Company and its successors and/or assigns, if any, no longer receive any form of payment from such customer contracts, and shall be required to maintain its or their status as an Active Independent Consultant with The Company as defined in this IC Agreement, to receive and/or continue to receive any compensation earned by and/or due to said IC and/or their stated successors, heirs, estates and/or assigns.
(iii) In that case, The Company shall make arrangements for another independent consultant during that period to be compensated by the IC receiving twenty-five percent (25%) of the ICs commission to assume the duties of servicing and managing the account.
(iv) In the event that Independent Consultant intentionally engages in post-termination activity harmful to The Company, including, but not limited to, material breach of any of the obligations that survive termination, The Company reserves the right to elect to cease compensation payments to the Independent Consultant altogether or in part, in The Company’s sole discretion.
(e) By Retirement of The Independent Consultant
(i) The Independent Consultant may give notice to The Company of its or their intention to retire.
(ii) The Independent Consultant, so retired, shall be entitled to continue to receive fifty-two point five percent (52.5%) of all compensation, including but not limited to renewals, accruing on its or their contracted accounts for that product and/or service sold by it or them, prior to the date of said retirement, and shall be entitled to receive such compensation until such time as The Company and its successors and/or assigns, if any, no longer receive any form of payment from such customer contracts, and shall be required to maintain its or their status as an Active Independent Consultant with The Company as defined in this IC Agreement, to receive and/or continue to receive any compensation earned by and/or due to said IC and/or their stated successors, heirs, estates and/or assigns.
(iii) In that case, The Company shall make arrangements for another independent consultant to assume the duties of servicing and managing the account.
(iv) In the event that Independent Consultant intentionally engages in post-termination activity harmful to The Company, including but not limited to material breach of any of the obligations that survive termination, The Company reserves the right to elect to cease compensation payments to the Independent Consultant altogether or in part, in The Company’s sole discretion.
(f) Should IC, their successors, estates or assigns desire to contest its or their termination or any other provisions within any Agreement(s) they shall have the right as its or their sole remedy to arbitration as defined within this IC Agreement.
XVIII. Successors and Assigns
(a) The rights and obligations of the parties to this IC Agreement will be binding on, and will be of benefit to, each of the parties themselves, as well as its or their respective representatives, successors, permitted assigns, heirs and estates. In in the case of successors, heirs and estates, its or their being bound shall be subject to agreeing to abide by the terms and conditions of this IC Agreement.
(b) Any successor in interest or assigns, heir or representative of an Independent Consultant’s estate shall cooperate with The Company to protect The Company’s client relationships and value of the Independent Consultant’s accounts, maximizing the ongoing revenue stream from such accounts.
(c) If the Independent Consultant conveys its interests in this IC Agreement to another independent consultant, the sale shall be on such terms as the parties (the buyer and seller) may agree, provided it remains consistent with the terms of this IC Agreement and any Agreement(s) incorporated by reference hereto.
(d) The Independent Consultant may engage another independent consultant (upon prior express written approval of the latter by The Company) to manage and service existing accounts of the Independent Consultant on 50/50 split basis as both Independent Consultants may agree, provided it remains consistent with the terms of this IC Agreement and any Agreement(s) incorporated by reference hereto.
(e) If during the transition between the Independent Consultant and a successor, heir, assigns or estate, The Company, in its or their sole discretion, determines that it must delegate to another independent consultant (with its or their prior express written consent), to service and manage the account until the transfer of interests under this IC Agreement is fully accomplished, The Company shall compensate such interim independent consultant twenty-five percent (25%) of the Independent Consultant’s commissions and/or bonuses on accounts so serviced by the interim independent consultant.
XIX. Assignment Permitted
(a) Either party shall have the right to assign this IC Agreement or any of its rights and privileges hereunder to any other person, firm or corporation subject to the prior express written consent of the other party and of the Company which shall not be unreasonably withheld.
(b) If the Independent Consultant intends to delegate duties to service or manage accounts under this IC Agreement, such delegation may only be made in writing to Active Independent Consultant and with express written consent of The Company which shall not be unreasonably withheld.
(c) If an assignment is contemplated to an assignee which is not an Active Independent Consultant, The Company shall allow thirty (30) days for the assignee to apply to become an Active Independent Consultant.
(d) Consent shall not be unreasonably withheld by The Company and shall be specifically reviewable pursuant to the arbitration provisions of this IC Agreement.
XX. Arbitration
Any controversy or claim arising out of or relating to this IC Agreement, or any breach thereof, including, without limitation, any claim that this IC Agreement, or any part thereof, is invalid, illegal or otherwise voidable or void, shall be submitted exclusively to final and binding arbitration before, and in accordance with, the Commercial Rules of the American Arbitration Association, and judgment upon the award may be entered in any court having jurisdiction thereof; provided, however, that this clause shall not be construed to limit any rights which The Company may have to apply to any court of competent jurisdiction for injunctive or other provisional relief. The arbitrator agrees to determine the arbitrability of any dispute. This arbitration provision shall be deemed self-executing, and in the event that either party fails to appear at any properly noticed arbitration proceeding, an award shall be entered against such party notwithstanding said failure to appear. Such arbitration shall be conducted by the American Arbitration Association, at its offices in the State of Delaware, as agreed to by the parties. The parties agree that the arbitrator shall not have the power to award punitive damages against any party. Should an arbitrator or court of competent jurisdiction, rule in favor of The Company, then The Company shall be entitled to recover any and all costs, fees and/or expenses in defense of any controversy, claim and/or dispute arising out of or relating to this IC Agreement.
XXI. Confidentiality Agreement
Independent Consultant will receive access to the Concept and/or other confidential, valuable, and proprietary information, including, but not limited to, information and relationships pertaining to all of The Company’s business contacts, other providers and any other companies or entities with whom The Company engages or may engage (hereinafter: “Confidential Information”) during the course of Independent Consultant’s term with The Company. In consideration of the mutual promises and covenants set forth herein, the parties agree as follows:
Any unauthorized release or dissemination of this Confidential Information may damage The Company and will be grounds for the immediate termination of Independent Consultant. In the event that Independent Consultant intentionally engages in post-termination activity harmful to The Company, including but not limited to, the sharing of Confidential Information at any point during the term of the Covenant Not To Compete, as covered in Section XXII, which may also survive termination of the Independent Consultant. The Company reserves the right to elect to cease compensation payments to the Independent Consultant altogether or in part, in The Company’s sole discretion. Independent Consultant understands The Company’s need to protect the Confidential Information, and Independent Consultant agrees as follows:
The term “Confidential Information” means any information or material, which is proprietary to The Company, including any and all business partners’ companies, alliances and/or affiliates with which The Company engages or may engage, information which has been provided to The Company by such business partners, alliances and/or affiliates, including, but not limited to product and/or service providers, and any other companies or entities with which The Company engages or may engage, whether or not owned or developed by The Company, which is not generally known other than by The Company, and which Independent Consultant may obtain through any direct or indirect contact with The Company.
(a) Confidential Information includes, but is not limited to:
(i) The Company’s business records, strategies, plans, proposals, prospects, customer lists, methodologies, proprietary training, materials, tools and resources, and computer software.
(ii) The names and business relationships and any non-public information resulting from such business relationships with The Company’s business partners, alliances and/or its or their affiliates, including but not limited to any other companies or entities with which The Company engages or may engage.
(iii) Compensation and/or commission and/or bonus information of any independent consultant of The Company, regardless of how such information was obtained.
(iv) Information provided to The Company by any other businesses, business partners, alliances and/or affiliates with whom The Company engages or may engage with, relating to any and all product and/or service information provided by such other businesses, business partners, alliances and/or affiliates.
(v) Any and all other information documented by The Company to be proprietary.
(b) Confidential Information does not include:
(i) Matters of public knowledge that are disclosed by The Company.
(ii) Other information of public knowledge independently received by Independent Consultant.
(iii) Information disclosed by operation of law.
(iv) Information disclosed by Independent Consultant to a designated recipient with prior express written consent of The Company.
(v) Information publicly disclosed by businesses, business partners, alliances and/or affiliates and with which The Company engages or may engage.
(vi) Any and all other information that both parties agree in writing is not confidential.
(c) Protection of Confidential Information:
Independent Consultant understands and acknowledges that the Confidential Information has been developed or obtained by The Company through the investment of significant time, effort
and expense; and that the Confidential Information is a valuable, special and unique asset of The
Company and may provide a significant competitive advantage over other companies. Therefore, Independent Consultant agrees to hold in strictest confidence and to not disclose the Confidential Information to any person or entity without the prior express written consent of The Company. Independent Consultant agrees to take all necessary precautions against disclosure of such information to third parties during and after Independent Consultant’s term with The Company. Independent Consultant also agrees to the following:
(i) NO MODIFYING. Independent Consultant will not modify any Confidential Information without the prior express written consent of The Company.
(ii) APPLICATION TO INDEPENDENT CONSULTANT. Independent Consultant shall not disclose any Confidential Information to any third parties, including any other independent consultant of The Company, except to those independent consultants of The Company who are required to have the Confidential Information in order to perform its or their duties as an independent consultant of The Company within the limited purposes of this IC Agreement, and then only with the prior express written approval of The Company.
(iii) UNAUTHORIZED DISCLOSURE OF INFORMATION. If it appears that Independent Consultant has disclosed, or has threatened to disclose Confidential Information in violation of this IC Agreement, The Company shall be entitled to seek injunction, at the cost and expense of the Independent Consultant to restrain Independent Consultant from disclosing, in whole or in part, the Confidential Information. The Company shall not be prohibited by this provision from pursuing other remedies, including claims for losses and damages.
(d) Return of Confidential Information
Upon written request by The Company, Independent Consultant shall return to The Company any and all Confidential Information and any and all other Company property including but not limited to computer programs, files, notes, records, charts, or other documentation or things containing, in whole or in part, any of The Company’s Confidential Information. Upon the resignation or termination of Independent Consultant, all written materials containing the Confidential Information shall be returned to The Company within ten (10) days.
(e) Limited License to Use
Independent Consultant shall not acquire any intellectual property rights under this IC Agreement.
XXII. Covenant Not to Compete
Independent Consultant agrees that:
(a) During the term of this Agreement and for a thirty (30) month period immediately following the date of such Independent Consultant’s resignation or termination from The Company for any reason, including but not limited to retirement from The Company and/or up to thirty (30) months following the cessation of retirement payments from The Company, Independent Consultant shall not, without the express written consent by The Company, engage as an agent, business partner, affiliate, employee, director, officer, vendor, independent contractor, consultant, or owner of any firm, corporation, or any other type of business entity which is in competition either directly or indirectly, or in the service of or on behalf of others, with the business conducted by The Company, as of the date of resignation, termination, and/or retirement, nor for any prospective customer or client of The Company, to whom The Company submitted or assisted in submission of a proposal or other pertinent documents generated by The Company or any of its affiliated businesses, providers, and any other business partner, alliance, and/or affiliates with which The Company engages or may engage during Independent Consultant’s term as an Independent Consultant of The Company. This restriction shall apply to any and all such, clients, and prospective clients to whom The Company generated, submitted and/or assisted in submission of a proposal or other pertinent documents.
(b) With respect to any client of The Company as of the resignation, retirement, or termination date of Independent Consultant, or with respect to any prospective client account which becomes an account of The Company within the thirty (30) month period following the date of resignation, retirement or termination of Independent Consultant, in addition to the obligations pursuant to paragraph (a) of this subsection of this IC Agreement, Independent Consultant agrees that, during the thirty (30) month term of this covenant not to compete, it and any business in which it engages directly or indirectly, shall not:
(i) induce any such clients, or prospective clients of The Company either directly or indirectly, to patronize any company or other business entity that is in competition with the business of The Company;
(ii) canvass, solicit, or accept any similar business from any such customer, client, or prospective customer of with The Company;
(iii) request or advise any such client, or prospective client of The Company to withdraw, curtail, or cancel the client’s, or prospective client’s business with The Company.
For purposes of this paragraph (b), in the case of a corporate client, the phrase “client of The Company” shall mean: the individual representative of a corporate client, his successor, or equivalent within the organizational subdivision of the corporate client on behalf of which they patronized The Company; any organizational subdivision of the corporate client on behalf of which such individual representative has patronized The Company; and any organizational subdivision of the corporate client referred to The Company by such individual representative. Nothing in this paragraph is intended to limit the scope of the terms of any other paragraph in this IC Agreement.
(c) During the term of this Agreement and for a thirty-six (36) month period following Independent Consultant’s resignation, retirement, or termination as an Independent Consultant of The Company for any reason, and limited in scope to the products and/or services offered by The Company, neither Independent Consultant nor any business with which it or they are associated, will solicit, attempt to solicit, divert, hire, engage, go into business with, or otherwise contract for products and/or services either directly or indirectly, or in the service of or on behalf of others, without prior express written consent by The Company:
(i) any independent consultant of The Company;
(ii) any former independent consultant of The Company whose affiliation with The Company ceased less than one year before the date of its or their hiring, engagement, co-venturing, or contracting;
(iii) any corporation or other entity in which the other independent consultant is an officer, director, or holder of any equity interest in The Company, nor induce or assist in the inducement of any other independent consultants of The Company from the discharge of such independent consultant’s contractual obligations to work as an independent consultant of The Company.
(d) Independent Consultant acknowledges and agrees that the restrictive covenants set forth in this IC Agreement are reasonable and valid in duration, geographical scope, and in any and all other respects. Independent Consultant further acknowledges and agrees that its or their breach of the provisions of this restrictive covenant would cause The Company irreparable injury and damage that cannot be reasonably or adequately compensated by damages at law. Independent Consultant, therefore, expressly agrees that The Company shall be entitled to injunctive or other equitable relief to prevent a breach of this non-competition paragraph in addition to any other remedies legally available to The Company, including recovery of reasonable attorney’s fees, costs, and other expenses.
(e) If any court of competent jurisdiction determines that any of the restrictive covenants in this IC Agreement or any part thereof, is or are invalid or unenforceable, the remainder of the restrictive covenants shall not thereby be affected and shall be given full effect, without regard to those portions determined as invalid. If any of the provisions of this paragraph should ever be deemed to exceed the temporal, geographic, or occupational limitations permitted by applicable laws, those provisions shall be and are hereby reformed to the maximum temporal, geographic, or occupational limitations permitted by law.
XXIII. Intellectual Property
While Independent Consultant is under contract with The Company, they shall have access to the Concept and other Confidential Information. From time to time, the Concept and the Confidential Information will have changes made to it by The Company and/or other independent consultants under contract with The Company. Independent Consultant agrees that any and all changes and/or additions made to the Concept and the Confidential Information, as a direct or indirect result of the Independent Consultant’s efforts shall be the proprietary property of The Company. All of such changes, modifications and/or additions, including the original Concept and the Confidential Information are the property of The Company and shall remain the proprietary property of The Company, even if the Independent Consultant actually created, thought of, devised, improved, modified, amended, altered, benefited, or in any other way made the Concept or any of the Confidential Information better or more valuable in any way during the Independent Consultant’s term with The Company. Independent Consultant acknowledges and agrees, that any and all of such improvements, amendments, modifications and alterations made to the Concept and/or the Confidential Information through Independent Consultant’s efforts in any way, whether to The Company’s computer programs, software, processes, products, procedures, services, methodologies, or otherwise shall be and remain the proprietary property of The Company.
XXIV. Mutual Indemnification
Independent Consultant hereby indemnifies The Company for any and all damages, costs, reasonable attorney’s fees and any other claims based, in whole or in part, on Independent Consultant’s failure to comply with the obligations set forth under this IC Agreement or any misrepresentations or omissions made by Independent Consultant concerning the offering of The Company’s products and/or services by Independent Consultant to The Company’s clients under this IC Agreement. The Company also agrees to indemnify Independent Consultant, if The Company fails to comply with its obligations as set forth under this IC Agreement.
XXV. Severability
If any portion of this IC Agreement shall be held invalid or inoperative for any reason, then so far as
is reasonable and possible:
(a) the remainder of this IC Agreement shall be considered valid and operative;
(b) effect shall be given to the intent manifested by the portion held invalid or inoperative.
XXVI. Entire Agreement
This document including but not limited to all Agreement(s), which are hereby adopted and incorporated by reference into this, constitute the entire understanding and agreement of the parties, and any and all prior Agreement(s), understandings or representations are hereby terminated and canceled and are of no further force or effect.
XXVII. Choice of Law and Election of Forum
This IC Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties to this IC Agreement agree to elect the courts of the State of New York as the forum for resolving all controversies and disputes which may arise under this IC Agreement. Any legal or business notices must be sent to the Company’s corporate address at 555 Madison Avenue, 5th Floor – New York, NY 10022.
XXVIII. Amendments
No amendment, change, and/or modification of this document shall be valid unless in writing and signed by the parties hereto; and shall not be interpreted to apply retroactively to any accounts established, sales consummated, or commissions and/or bonuses calculated prior to the date of any such amendment, including all future contract renewals or business of any kind attributable to the efforts of the Independent Consultant on behalf of such clients.
Independent Consultant, therefore, agrees to accept such modifications made to the contract by executing such modified Agreement(s) as they are made available by The Company. In the event Independent Consultant fails to execute such modified Agreement(s) within ten (10) business days of it being made available to Independent Consultant, at the discretion of The Company, The Company has the right to terminate this IC Agreement upon the expiration of such ten (10) day period. Failure of the Independent Consultant to execute such modified Agreement(s) shall not be considered a material breach.
XXIX. Disclosure of Potential Conflicts of Interest
The Independent Consultant represents that the following listed business relationships, including products and/or services represented by Independent Consultant as part of such business relationships, are the only potential conflicts of interest it has pursuant to Article III above:
