4. RELATIONSHIP OF THE PARTIES.
4.1 Talent is an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between Talent and the Company for any purpose. Talent has no authority (and shall not hold themself out as having authority) to bind the Company and Talent shall not make any agreements or representations on the Company's behalf without the Company's prior written consent. TALENT IS NOT AN EMPLOYEE OF THE COMPANY.
4.2 The Company and Talent intend for the relationship under this Agreement to be that of an independent contractor. The Company will not require Talent to perform duties or acts that would weaken or deviate from his/her status as an independent contractor. This Agreement does not prohibit Talent from making his/her services available to the general public, subject to the requirements and restrictions of this Agreement.
4.3 Without limiting Section 4.1, Talent will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers' compensation insurance on Talent’s behalf. Talent shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by Talent in connection with the performance of the Services shall be Talent’s employees or contractors and Talent shall be fully responsible for them and indemnify the Company against any claims made by or on behalf of any such employee or contractor.
4.4 This Agreement does not and is not intended to limit Talent's ability to make his/her services available to the public, provided that Talent complies with the limited conditions set forth herein.
5. NON-SOLICITATION COVENANTS
5.1 Definitions. For purposes of this Agreement:
(i) The term “Competitive Activities” includes activities that are competitive to Facetime including, but not limited to, promotional activities, marketing, advertising, sales, brand ambassadors, event staffing, brand management, atmosphere models, print and electronic media, and promotional vehicle programs, or any other business in which Facetime is engaged or preparing to engage as of the date of the termination of Talent’s business relationship with Facetime. This includes any competitive Activities by other individuals or entities not owned by Talent that Talent initiated or is otherwise involved in.
(ii) The term “Existing, Prospective, or Former Customers” shall mean any and all customers or prospective customers of Facetime to or with whom Facetime provide(d) services to, offered to provide services to, had substantial contact during Talent’s business relationship with Facetime, including all clients with whom Facetime has an active contract with or pending contract to utilize Facetime’s services at the time of the termination of Talent’s business relationship with Facetime and any client about which Talent learned of through Confidential Information (as that term is defined in Section 6 hereof). Talent further agrees that, should Talent bring to Facetime any of Talent’s pre- existing customer relationships, such relationships shall become Facetime’s relationships and Talent expressly agrees that the compensation Facetime shall pay to Talent shall be considered adequate consideration for the transition of such relationships to Facetime.
5.2 Non-Solicitation of Customers. Talent agrees that during his/her business relationship with Facetime and for a period of three (3) years after termination of said business relationship, whether voluntary or involuntary, with or without cause, subject to the exception listed above, Talent will not, directly or indirectly, solicit any Existing, Prospective, or Former Customer, business partner, vendor, or referral source of Facetime, regardless of such person's or entity's location, to terminate any business relationship with Facetime and/or commence a similar business relationship with any other individual or entity; and/or solicit, market, lure, advertise, promote, target, procure, or otherwise perform Competitive Activities for any of Facetime’s Existing, Prospective, or Former Customers.
5.3 Non-Solicitation of Employees/Contractors. Talent agrees that during his/her business relationship with Facetime and for a period of three (3) years after termination of business relationship, whether voluntary or involuntary, with or without cause, Talent will not: (i) solicit any of Facetime’s employees, independent contractors (including other talent contractors), or agents to terminate any business relationship with Facetime; (ii) on behalf of any other individual or entity, encourage or hire (or assist anyone else to hire) any of Facetime’s employees, agents or independent contractors; and/or (iii) provide to any other individual or entity the identity of any of Facetime’s employees, agents or independent contractors.
6. CONFIDENTIALITY.
6.1 Talent acknowledges that he/she will have access to information that is treated as confidential and proprietary by the Company, including, without limitation, customer/client lists, prospective customer/client lists, client contact information, talent database and contact information (including information stored on Pinata), manufacturer and supplier lists and information, pricing and bidding information, procedures and systems unique to the Company, training materials, marketing and brand management plans, customer information, business practices and approaches, financial information, corporate information, personnel information, forms, lists, manuals, and computer programs and other confidential information in each case whether spoken, written, printed, electronic or in any other form or medium (collectively, the “Confidential Information”). Talent: (a) shall not, during or at any time after Talent’s business relationship with the Company (i) publish, duplicate, disclose, or make accessible any Confidential Information to any person, firm, or other entity for any reason whatsoever, or (ii) use or generate benefit from such Confidential Information, except during the business relationship with the Company and for the Company’s benefit; and (b) shall return all tangible evidence of any Confidential Information including, but not limited to, any papers, lists, books, files, and computer stored or generated information to the Company prior to or at the termination of that business relationship. Any Confidential Information that Talent develops in connection with the services performed under this Agreement shall be subject to the terms and conditions of this clause. Talent agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or in part, to any third party without the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. Talent shall notify the Company immediately in the event Talent becomes aware of any loss or disclosure of any Confidential Information.
6.2 Confidential Information shall not include information that: (i) is or becomes generally available to the public other than through Talent’s breach of this Agreement; or (ii) is communicated to Talent by a third party that had no confidentiality obligations with respect to such information.
6.3 Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Talent agrees to provide written notice of any such order to CEO, Carla Rissell, within five (5) days of receiving such order, but in any event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek confidentiality protections, as determined in the Company’s sole discretion.
6.4 The Defend Trade Secrets Act provides immunity from state and federal civil or criminal liability for Talent if Talent discloses a trade secret: (a) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, but in either case only if the disclosure is solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed with a court in a lawsuit or other proceeding, if the filing of that document is made under seal, and any other disclosure of the trade secret Talent makes is only as allowed by the court.