INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (“Agreement”) is entered into as of the entering of Contractor’s electronic signature (“Effective Date”) by Eye Spy Critiquing and Consulting Corporation (“Company”) and Contractor.
1. Recitals. Company desires to engage Contractor to provide evaluation services on an independent contractor basis. Contractor is skilled and experienced in performing the Services and desires to perform evaluation services and programs to its clients, including but not limited to mystery shopping onsite surveys, mystery shopping telephone surveys, internet surveys, and other methods of customer surveys and service evaluation (“the Services”) for Company under the terms of this Agreement. Thus, for good and valuable consideration, Company and Contractor (the “Parties”) agree as follows:
2. Relationship of the Parties.
2.1 Independent Contractor. Contractor enters into this Agreement as, and shall continue to be, an independent contractor. Contractor has the skill to perform the Services. Contractor shall not look to Company as an employer, partner, agent, or principal. Contractor is not entitled to any benefits Company provides to its employees, including workers’ compensation, disability insurance, paid time off, vacation, paid sick leave, training, health insurance or benefits. Company has no right to control Contractor in the performance of the Services.
2.2 Contractor Responsible for Taxes. Contractor shall pay all taxes incurred as a result of Contractor’s compensation, including federal and state income taxes, FICA,federal and state unemployment insurance contributions, and State Disability Insurance premiums. Contractor will promptly provide Company, upon demand, copies of its timely filed income and payroll tax returns and evidence of timely payment of taxes.Contractor indemnifies Company for any claims, losses, costs, fees, liabilities, damages,or injuries Company suffers for Contractor’s breach of this provision, as well as for any taxes for which Company is held liable from its relationship with Contractor.
2.3 No Authority to Make Commitments. Contractor has no authority to enter into any contract, agreement or instrument on Company’s behalf.
2.4 Client Contact. Contractor may not contact Company’s clients without Company’s prior consent.
2.5 Costs, Expenses, and Liabilities. Except for certain expenses specifically designated in writing by Company as reimbursable, each separately bears its own costs, expenses, and liabilities arising under this Agreement and with respect to the Services, and Company does not reimburse Contractor for any other business, travel, or other expenses.
2.6 Insurance . It is Contractor’s responsibility to obtain comprehensive liability, disability, workers’ compensation, and any other insurance required by law.
2.7 Contractor Acts Independently. From time to time, Company may provide Contractor with opportunities to provide the Services, although Company in its discretion is under no obligation to provide any minimum number of opportunities during any period of time. Contractor is not required to accept any opportunity. Contractor retains ultimate discretion as to how to provide the Services, including but not limited to evaluation techniques,style and content of reports, and best practices to provide evaluations.Company does not assign, train, instruct, review, or supervise Contractor.Contractor determines the hours that Contractor will work and is not required to work at any particular time. Contractor may perform work in the order, sequence, routine, technique, or method that Contractor deems most appropriate.
3. Services of Contractor. Contractor represents that Contractor has the qualifications and ability to perform the Services professionally, and without Company’s advice, control, or supervision. Contractor represents that its methods comply will all applicable laws and regulations and with the standard of care in Contractor’s field, including, but not limited to, laws concerning harassment, discrimination, and employment status. This includes meeting the requirements of any contract that Company has with its customers or clients. Failure to perform the Services constitutes a material breach of this Agreement.
4. Contractor’s Indemnities. Contractor will indemnify, defend, and hold harmless Company and Company’s officers, directors, shareholders, and employees from and against all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorneys’ fees and costs, that Company may incur and relate to any breach or failure of Contractor to perform any of the Services, representations, warranties, or agreements in this Agreement, or to perform in accordance with any applicable laws and/or legal standards, including but not limited to common law torts (e.g., negligence, assault, battery) harassment, and discrimination. Company will have no liability to Contractor or any third party for any claims arising out of Contractor’s actions in providing the Services or otherwise. Contractor assumes all risk of injury to Contractor’s person or property in performance of the Services. Contractor agrees to waive all claims against Company and Company’s clients for any and all injury to Contractors’ person or property arising out of Contractor’s performance of the Services, and Contractor agrees to indemnify and hold Company and its clients harmless for any and all such damages. If Contractor suffers any damage, cost or loss as a result of or in connection with products or services of Company’s clients, Contractor will make no claim against Company, and Company shall have no liability in connection with, such damage, and Contractor will hold Company harmless with regard to any claim Contractor may assert against any other party.
5. Confidential Information. Contractor agrees to comply with the terms of Company’s Confidential Information Agreement, attached as Addendum A.
6. Dispute Resolution. Except as otherwise stated herein, any controversy, claim or dispute arising out of or relating to this Agreement or the breach, termination, enforceability, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined and settled by arbitration in Los Angeles, California before a sole arbitrator mutually selected by the parties. Judgment on the award rendered may be entered in any court having jurisdiction. Upon request of either party, a mediation shall be conducted prior to the arbitration. This provision shall not restrict, however, either party’s right to obtain injunctive relief to enforce any provision of this Agreement in any court of competent jurisdiction.
7. Non-Exclusive Services. Contractor shall devote, during the term of this Agreement, time, energy, and skill as necessary to perform Contractor’s duties. The parties recognize and agree, however, that Contractor’s services to Company shall be nonexclusive as to Company. Contractor is not required to devote Contractor’s fulltime to Services provided under this Agreement. So long as Contractor’s services performed for persons other than Company do not conflict with or interfere with Contractor’s duties under this Agreement, Contractor may, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in or provide the same or similar services to any business, whether in competition with Company or otherwise. Contractor is free to offer services to the general public. Contractor shall not be restricted from assisting in the marketing of opportunities including those offered by Company, or from the marketing of any other business or investment opportunities for any other person or entity, except to the extent that such activities interfere with Contractor’s duties under this Agreement. For example, Contractor cannot utilize Company’s Confidential Information to market or contact Company’s customers or employees on behalf of other business or investment opportunities for any other person or entity.
8. Anti-Harassment Policy. It is Company’s policy that all persons, including its independent contractors, have a right to work in an environment free of unlawful discrimination, which includes freedom from harassment, whether based on sex, age, race, national origin, religion, sexual orientation, marital status, or membership in other protected category. Contractor should report any inappropriate or harassing behavior to Company.
9. Governing Law. This Agreement shall be governed by the laws of the State of California.
10. Notices. All notices required under this Agreement (which does not include service of documents filed or to be filed in state or federal court, service of which must comply with applicable law) shall be given in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, to Company’s primary business address at 1153 Lincoln Avenue Suite H San Jose, CA 95125 and to Contractor’s last known address, unless a written notice of a change of address has been provided to Company or Contractor:
11. Successors and Assigns. Each and all of the covenants, terms, provisions and agreements in this Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties.
12. Severability. The provisions of this Agreement are severable, and if one or more provisions is determined to be illegal or otherwise unenforceable, in full or in part, the validity of the remaining provisions, including any partially unenforceable provisions to the extent enforceable in any jurisdiction, shall not be affected.
13. Waiver. Any Party’s failure to enforce any provision or provisions of this Agreement shall not be a waiver of any such provision or provisions, or prevent that Party from enforcing every other provision of this Agreement. The rights granted to each of the Parties in this Agreement are cumulative and shall not constitute a waiver of said Party’s right to assert all other available legal remedies.
14. Termination. This Agreement will become effective on the Effective Date stated above and will continue in effect until terminated. Should either party default in the performance of its obligations under this Agreement or materially breach any of its provisions, the nonbreaching party may terminate this Agreement by giving written notification to the breaching party. Termination shall be effective immediately on receipt of the notice, or five (5) days from mailing of the notice, whichever occurs first. This Agreement terminates automatically upon (a) bankruptcy or insolvency of either party, (b) sale of the business of either party, (c) the death of either party or (d) mutual agreement of the parties.
15. Voluntary Agreement. The parties acknowledge that they have entered into this Agreement voluntarily, without coercion, and based upon their own judgment, and not in reliance upon any representations or promises made by any other party other than those representations or promises contained in this Agreement. Each party has had the opportunity to consult an Attorney regarding this Agreement. The parties have carefully read and fully understand all of the provisions of the Agreement, have been given a reasonable period of time to consider signing this Agreement, have the capacity to enter into this Agreement, and are voluntarily signing this Agreement, free from fraud, duress, coercion, or mistake of fact.
16. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and supersedes all contracts, proposals, oral or written, and all other communications between the Parties regarding the subject matter of this Agreement. This Agreement may be modified only by a written amendment signed by both Parties or their heirs, representatives or successors in interest.
17. Survival. Sections 2.2, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, and 16 survive termination of this Agreement.
I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT, INCLUDING ADDENDUM A, FULLLY UNDERSTAND IT AND VOLUNTARILY AGREE TO ITS PROVISIONS. I HAVE EXECUTED THIS AGREEMENT USING AN ELECTRONIC SIGNATURE.
CONFIDENTIAL INFORMATION AGREEMENT
Contractor understands that, by virtue of his or her work with Eye Spy Critiquing and Consulting Corporation (“Company”), Contractor will acquire and/or be exposed to proprietary and other confidential information of Company, and thus, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Contractor acknowledges and accepts this Confidential Information Agreement (“Agreement”):
1. Confidential Information.
1.1 Confidential Information. Company may, in its discretion, convey to Contractor, either verbally, or by written, printed, graphic, pictorial, electronic, or other forms of communication, certain confidential, trade secret, and/or proprietary information of Company (“Confidential Information”). “Confidential Information” is to be broadly defined and includes all information that has or could have actual or potential commercial or economic value or other utility in the business of Company (including its affiliates, partners, principals, employees, representatives, and contractors), its clients, and all others with whom it does business. Confidential Information includes, but is not limited to all forms and types of financial, business, scientific, technical, economic, or engineering information, including but not limited to Developments (as defined in this Agreement); plans; devices; designs; prototypes; techniques; methods; processes; procedures; programs; codes; inventions (whether or not patentable or reduced to practice); innovations; improvements; knowhow; treatments; drawings; sketches; specifications; patterns; models; sales strategies; sales forecasts; product knowledge; client lists; client identities; client contact information; client personal information; client leads and referral sources; client profiles; client terms; client preferences; client purchasing habits and history; client contracts; formulas; pricing; schedules; marketing and sales strategies, plans, and materials; financial information and bank statements; forms, policies and procedures; personnel records and data; compensation data; employee rosters and contact information; names of suppliers; contracts with employees and third parties; payments to third parties; licensing deals; profits and margins; analytics and modeling; legal documents; business plans; forecasts; works in progress; research and development; pending projects and proposals; collaboration contacts and agreements (whether potential or realized); potential or current joint venture contacts and agreements; investor, lender, and supplier information; technological data; database; internal communications; manuals; training materials; compilations; software programs; source code; object code; rewards programs; gift cards/programs; and all other confidential, proprietary and/or trade secret information whether tangible or intangible in any Document, form or medium whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing (whether merely remembered or embodied in a Tangible or intangible form or medium). Confidential Information also includes any information described in this Section that is related to Company’s clients or business partners, or that Company obtains from another party and treats as proprietary or confidential, whether or not owned or developed by Company. Confidential Information does not include information that was known to the public prior to its disclosure to Contractor, that becomes generally known to the public subsequent to disclosure to Contractor through no wrongful act of the Contractor or any representative of Contractor, or that Contractor is required to disclose by applicable law, regulation or legal process. Confidential Information is and shall remain the property of Company. By disclosing information to Contractor, Company does not grant any express or implied right to Contractor to or under Company’s patents, copyrights, trademarks, trade dress, trade secrets and/or any other proprietary right.
1.2 Nondisclosure. Contractor acknowledges and agrees that all Confidential Information is maintained as a trade secret and is the sole and exclusive property of Company. Contractor agrees to hold in strict confidence and trust, both during and after Contractor’s work with Company, all Confidential Information, and not to reveal, report, publish, disclose or transfer, directly or indirectly, any Confidential Information to any person or entity, and not to acquire or utilize any Confidential Information for any purpose other than those purposes approved by Company during the course and scope of Contractor’s work with Company.
Information gathered on evaluations may not be used for ANY third party purpose (i.e. social media) without written consent of EyeSpy C&C. Contractor agrees not to disclose any Confidential Information in any social media or other public forum (i.e., Yelp!, Twitter, Facebook, chatroom, newspaper, magazine, or similar internet or print forums).
Contractor also agrees to refrain from any acts or omissions that would reduce the value of Confidential Information to Company. If disclosure of part or all of Confidential Information must be made to a third party, such disclosure shall be made by Contractor only with the consent of Company and under the terms of a confidentiality or nondisclosure agreement with said third party. Contractor will not, at any time during or subsequent to his or her work with Company, acquire, disclose, or use Confidential Information in any unauthorized manner or in any manner detrimental to the best interests of Company. Contractor will not, at any time during or subsequent to his or her work with Company, permit Confidential Information to be acquired by, disclosed to, or used by any competitor of Company. If Contractor originates, develops, or reduces to writing Confidential Information, such Confidential Information will become for all purposes property of Company, and will be treated as Confidential Information. Confidential Information will be entitled to all of the protections and benefits under applicable law. Contractor will notify Company in writing immediately after Contractor receives a subpoena, notice to produce, or other compulsory order or process of any court of law or government agency if such document requires or may require disclosure or other transfer of Confidential Information. Contractor agrees not to reverse engineer or attempt to derive the composition or underlying information, structure or ideas of any Confidential Information.
1.3 Return of Property and Confidential Information. At any time at the request of Company, Contractor will promptly deliver to Company all originals and copies of any notes, data, reference materials, sketches, drawings, memoranda, Documents, and records in any way incorporating or reflecting any Confidential Information (whether maintained in Tangible or intangible form or in computer memory or other electronic format), and whether made or compiled by or on behalf of Contractor or made available to Contractor by Company, in the possession, custody, or control of Contractor. Following termination or a request to return Confidential Information, Contractor will not acquire, use, maintain, copy, or disclose any materials containing Confidential Information. Contractor will keep Confidential Information confidential in perpetuity. Contractor will return any and all property belonging to Company promptly upon termination of Contractor’s work and at any time at Company’s request.
2. Restrictions. Contractor acknowledges that (i) the identities of, and other Confidential Information regarding, past, current, and prospective clients and business partners of Company are confidential and proprietary and constitute trade secrets under applicable law, and are not generally known to the public; (ii) Company uses reasonable efforts to maintain the confidentiality of such Confidential Information; and (iii) Company expends substantial time and resources to obtain and maintain relationships with its past current, and prospective clients and business partners. Contractor understands and acknowledges that the business requirements and likes and dislikes of Company’s clients are intrinsic to the value of this information. Accordingly, Contractor agrees, to the extent permitted by applicable law, that Contractor will not, during or at any time after Contractor’s work, without the prior written consent of Company, solicit any of the past, current, or prospective clients or business partners of Company to do business with any person or entity whose business competes with the business of Company, in each case, to the extent that the identity of, or other information regarding, such client or business partner constitutes a trade secret of Company under applicable law, and/or to the extent that such solicitation involves acquisition, disclosure, or use of Company’s Confidential Information. Contractor further agrees not to keep or use client lists, client information, and/or any other Confidential Information to mail, email, or in any other manner contact or communicate with Company’s clients (past, present and future) for any purpose, including but not limited to soliciting business for Contractor’s own business interests or the business interests of any person or entity. Contractor further agrees not to take any action that disrupts, damages, impairs, or interferes with 9 Company’s contractual and/or economic relationships with any business, vendor, officer, director, agent, employee, contractor, or other person or entity.
3. Remedies. Contractor shall notify Company immediately upon discovery of any unauthorized acquisition, disclosure, or use of Confidential Information, or any other breach of this Agreement by Contractor or otherwise known to Contractor, and will cooperate with Company in every reasonable way to help Company regain possession of the Confidential Information and prevent improper, unauthorized and/or unlawful acts. Notwithstanding any arbitration agreement between Contractor and Company, in the event of a breach, or a threatened breach, by Contractor of this Agreement, Company shall have the right to have the provisions of this Agreement specifically enforced by any Court having equity jurisdiction, and shall not be required to mediate or arbitrate, because breach or threatened breach will cause irreparable injury to Company and money damages will not provide an adequate remedy. Thus, Company shall be entitled to injunctive relief, specific performance, or both, and shall be entitled to have entered a civil seizure, temporary restraining order, preliminary or permanent injunction, or order compelling specific performance, without the necessity of posting a bond or other security, in addition to whatever other remedies may be available at law or otherwise, to the extent allowed by law. Company has the right to recover damages for all losses, actual and contingent, and the right to require Contractor to account for and pay over to Company all profits or other benefits derived or received by Contractor as a result of any transactions constituting such a breach.
4.1 Document. The term “Document” shall include, without limitation, all written, typed or otherwise preserved materials or communications including any letter, correspondence, email, note, book, pamphlet, article, bulletin, directive, review, publication, memorandum, diary, log, test analysis, study, projection, check, invoice, receipt, bill, purchase order, shipping order, contract, agreement, work paper, calendar, envelope, paper, telephone message, tape, computer tape, computer disc, computer card, source code, object code, recording, videotape, film, microfilm, microfiche, drawing, account, ledger, statement, financial data, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. It is intended to include all nonidentical copies, and drafts.
4.2 Tangible. For purposes of this Agreement, the term “Tangible ” includes ideas, information or materials in a written or graphic form, on computer disk, or otherwise stored in or available through an electronic, magnetic or any other form or medium.
5.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior discussions between them regarding its subject matter. It shall not be modified except by a written agreement signed by Contractor and the President of Company. The provisions of this Agreement survive the end of the independent contractor relationship between Contractor and Company.
5.2 Waiver. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Company, its agents, or employees, but only by an instrument in writing signed by the President of Company. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
5.3 Attorneys’ Fees. In any action to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover actual attorneys’ fees and costs.
5.4 Governing Law. This Agreement shall be construed and controlled by the laws of the State of California.
5.5 Successors and Assigns. Subject to the limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns.
5.6 Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. All obligations created by this Agreement shall survive change or termination of the parties’ relationship. Each of the rights and remedies above shall be independent of the other, and shall be severally enforceable, and all such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to Company at law or in equity.
5.7 Notice. Any notices required to be given by Contractor to Company shall be given in writing at Company’s last known business address by certified mail, return receipt requested. Any further notices required to be given by Company to Contractor not contained in this document shall be given in writing at Contractor’s last known residence address by certified mail, return receipt requested.
The Defense of Trade Secrets Act at 18 U.S.C. § 1833(b) provides for the following immunities :
Immunity from Liability for Confidential Disclosures of a Trade Secret. (1) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, 11 and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. (2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal and (B) does not disclose the trade secret, except pursuant to court order.