Terms of Service
WHEREAS, Agency has been engaged in delivering online marketing services to a broad range of businesses; and
WHEREAS, Agency 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 said business and the Scope of Work (as defined hereafter) which is to be performed as an Agency pursuant to this Agreement; and
WHEREAS, Agency is or remains open to conducting similar tasks or activities for clients other than the Company and holds itself out to the public to be a separate business entity; and
WHEREAS, the Company desires to contract for the services of the Independent Contractor to perform certain tasks as set forth below; and
WHEREAS, Agency desires to enter into this Agreement and perform as an Agency for the Company and is willing to do so on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises and conditions contained in this Agreement, the receipt and sufficiency of which is hereby willfully acknowledged, the Parties agree as follows:
- EFFECTIVE DATE: This Agreement shall be effective immediately, commencing as of the day written in the signed contract, and shall continue until terminated at the completion of the Scope of Work, or by either party as otherwise provided herein.
- AGENCY STATUS: This Agreement does not constitute a hiring by either party. It is the parties’ intent that Agency shall have a non-exclusive, independent advertising agency 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 United States/California State Revenue and Taxation Code relating to income tax withholding at the source of income, the Workers’ Compensation Insurance Code, 401(k) and other benefit payments and third party liability claims. Agency 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. Agency shall not act as an agent of the Company, ostensibly or otherwise, nor bind the Company in any manner, unless specifically authorized to do so in writing. Company acknowledges that Agency similarly contracts to deliver marketing services to other companies which may operate within or outside of Company’s current space.
- SCOPE OF WORK: Agency agrees to devote as much time, attention, and energy as necessary to deliver the services outlined in Schedule A attached hereto, which services are defined by this Agreement as the Scope of Work.
- Agency 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 by others within or outside of the Company, as agreed upon by the Parties. Agency shall not be entitled to engage in any activities which are not expressly set forth by this Agreement.
- COMPENSATION: Agency shall be entitled to compensation for performing those tasks and duties related to the Scope of Work as listed in this Agreement. Such compensation shall become due and payable as set forth in Schedule B to this Agreement.
- WITHHOLDING OF TAXES: Agency recognizes and understands that it may receive an IRS 1099 statement and related tax statements, and may 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. To the extent these tax statements are required by law, Agency hereby promises and agrees to indemnify the Company for any damages or expenses, including attorney fees, and legal expenses, incurred by the Company as a result of Agency’s failure to make such required payments.
- WAIVER OF BENEFITS: Agency hereby 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, 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 Agency by virtue of his services to Company, and is effective for the entire duration of Agency’s agreement with Company. This waiver is effective independently of Agency’s employment status as adjudged for taxation purposes or for any other purpose.
- ASSIGNABILITY OF CONTRACT: Neither this Agreement, nor any duties or obligations under this Agreement may be assigned by either party without the prior written consent of the other.
- TERMINATION: This Agreement may be terminated per the terms outlined in the signed contract. Such termination shall not prejudice any other remedy to which the terminating party may be entitled, either by law, in equity, or under this Agreement.
- NON-SOLICITATION: Company and Agency shall not, during the Agreement and for a period of one year immediately following termination of this Agreement call on, solicit, or take away, or attempt to call on, solicit, or take away, any of the existing customers or clients of the Company on whom Agency called or became acquainted with during the term of this Agreement, either for his own benefit, or for the benefit of any other person, firm, corporation or organization. Agency acknowledges and agrees that the above restriction is reasonable as to duration and geography.
- Moreover, Agency acknowledges that the existence of any claim or cause of action he may bring against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense against the enforcement of this paragraph.
- NON-RECRUIT: Company and Agency shall not, during this Agreement and for a period of one (1) year immediately following termination of this Agreement, either directly or indirectly, recruit any of the other parties employees for any purpose without written consent.
- RETURN OF PROPERTY: Upon termination of this Agreement, or whenever requested by the parties in writing, 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.
- LEGAL COMPLIANCE: Agency is encouraged to treat all company employees, customers, clients, business partners and other affiliates with respect and responsibility. Agency is required to comply with all laws, ethical codes and company policies, procedures, rules or regulations, including those forbidding sexual or other harassment, discrimination, and unfair business practices.
- NOTICES: 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 their business addresses as set forth in this Agreement, but each party may change its 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. Agency agrees to keep Company current as to his business and mailing addresses, as well as telephone, facsimile, e-mail and pager numbers.
- ATTORNEY 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 fees, costs and necessary disbursements incurred both before and/or after judgment in addition to any other relief to which such party may be entitled.
- INDEMNIFICATION: Each party hereto shall defend, indemnify, hold harmless, and insure the other from any and all damages expenses or liability resulting from or arising out of, any negligence or misconduct on its part, or from any breach or default of this Agreement which is caused or occasioned by the acts of said party. Each party shall insure that its employees and affiliates, if any, take all actions necessary to comply with the terms and conditions set forth in this Agreement. The Company shall specifically indemnify Agency against any loss, claims, demands, action, proceedings, losses, damages, costs, charges and expenses which may be made or brought or commenced against Agency for the publication of any advertisement of the Company, which has been prepared on the basis of the material furnished to Agency.
- ENTIRE AGREEMENT: This Agreement is an independent document and constitutes the entire agreement between the parties, and supersedes any and all other Agreements, either oral or in writing, between the parties hereto. Each party of this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party hereto, or anyone acting on behalf of any party hereto, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement shall be effective only if it is in writing, signed and dated by all parties hereto.
- PARTIAL INVALIDITY: 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.
20. GOVERNING LAW: This Agreement shall be governed by, and construed under, the laws of the United States, California, which is the situs of its signing. Both parties agree that jurisdiction and venue for all purposes shall be in the United State, California.