Module Two independent Contractor and License Agreement
THIS INDEPENDENT CONTRACTOR AND LICENSE AGREEMENT (the "Agreement") is made as of the date indicated below by and between Give Back Yoga Foundation, a Colorado nonprofit company (the “Organization”) and the individual person whose signature appears below (the “Facilitator”).
1. Engagement, Services. Organization hereby agrees to engage Facilitator as an independent contractor to provide Organization with the services associated with the Eat Breathe Thrive program as described in Exhibit A to this Agreement (the “Services”). Facilitator hereby accepts such engagement upon the terms and conditions set forth herein.
2. Term. The term of Facilitator’s engagement under this Agreement shall coincide with Facilitator’s active enrollment and participation in the Eat Breathe Thrive Module Two mentorship program or the earlier termination of this Agreement as provided in Section 8.7 below (the “Term”).
3. Compensation; Expenses; Standard of Work.
3.1 As compensation for the performance of the Services, Organization shall pay Facilitator the compensation specified in Exhibit A to this Agreement.
3.2 Organization shall not withhold payroll, state, federal, social security, employment or any other taxes from any compensation paid to Facilitator, and Facilitator shall be solely responsible for payment of any such taxes.
3.3 Facilitator will perform the Services in accordance with the terms of this Agreement and Eat Breathe Thrive policies (including, but not limited to, the Duty of Care, Code of Ethics and Professional Conduct, and Data Collection Guidelines, attached hereto as Exhibits B, C, and D, respectively as they may be updated from time to time. Facilitator will have exclusive control over the manner and means of performing the Services, including the choice of place and time, and will use Facilitator’s expertise and creative talents in performing the Services. Facilitator will provide, at Facilitator’s own expense, a place of work and all equipment, tools, and other materials necessary to complete the Services; however, to the extent necessary to facilitate performance of the Services and for no other purpose, Organization may, in its discretion, make its equipment or facilities (if and when acquired) available to Facilitator at Facilitator’s request. If Facilitator uses Organization’s equipment or facilities, regardless of whether Organization grants permission to Facilitator to do so, Facilitator will be solely responsible for any injury or death suffered by any person (including Facilitator’s employees and agents) and any damage to any property (including Organization’s property) arising from such use, regardless of whether such injury, death, or damage is claimed to be based upon the condition of such equipment or facilities or upon Organization’s negligence in permitting such use.
3.4 Payment to Facilitator of undisputed fees and expenses will be sent within 21 days after each program is completed. Organization is under no obligation to pay Facilitator until receipt of funds from the program participants.
3.5 Facilitator represents, warrants, and covenants that Facilitator will not, in the course of performing the Services, infringe or misappropriate any intellectual property right of any other person.
3.6 Facilitator shall not subcontract the performance of any of its obligations under this Agreement without Organization’s prior written consent. Facilitator shall remain responsible for its subcontractors performance under and compliance with this Agreement.
3.7 Facilitator shall not offer the Eat Breathe Thrive program to a participant with acute mental illness, or any condition that would otherwise put such participant and co-participants at risk of undue harm.
4. Protection of Confidential Information.
4.1 “Confidential Information” means all nonpublic information (in whatever form) relating to or arising from Organization’s business (as conducted or planned to be conducted) disclosed by Organization to Facilitator prior to or after the date of this Agreement, whether disclosed in written, oral, or electronic form, including, without limitation: trade secrets; know-how; concepts; processes; materials; specifications; production methods; research & development programs; pre-clinical or clinical data, programs or strategy, information concerning the manner and details of Organization's operations, including its organization and management, nonpublic information concerning its products, services, equipment, and systems, financial information including all information contained in financial statements, pricing and cost information, Organization policies, procedures, business plans and strategies; identities of, and information regarding Organization’s relationships with, Organization's customers, customer reps, industry contacts, prospects, distributors, Facilitator and vendors utilized in Organization's business; nonpublic forms, contracts and other documents used in Organization's business; information concerning Organization's employees, agents and Facilitators, if any; the nature and content of computer software or other systems used in Organization's business, whether proprietary to Organization or used by Organization under license from a third party; and prospective and executed contracts and other business transactions and arrangements. Confidential Information includes information obtained under confidentiality obligations by Organization from a third party and any Materials provided to Facilitator by Organization.
Confidential Information does not include information that Facilitator can demonstrate with competent written evidence is: (a) already lawfully known by Facilitator at the time of first receipt from Organization and is not subject to any other nondisclosure agreement between the parties or between Facilitator and a third party; (b) was in the public domain at the time it was disclosed to Facilitator; or (c) entered the public domain after it was disclosed to the Facilitator through no fault of Facilitator or its employees, agents or subcontractors. Facilitator may also disclose Confidential Information of Organization to the extent disclosure is required to be disclosed by a court or governmental authority having jurisdiction over Facilitator, provided that Facilitator gives Organization prompt written notice of the request prior to any disclosure and cooperates with Organization, at Organization’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
4.2 Facilitator shall hold all Confidential Information in strict confidence and shall not, without Organization’s express authorization: (i) use any Confidential Information for any purpose, other than in performance of the Services; or (ii) disclose or otherwise communicate any Confidential Information outside of Organization. Facilitator’s obligations under this Section 4 shall apply at all times during Facilitator’s engagement with the Organization and for five years until all Confidential Information falls within at least one of the three exceptions listed in (a) to (c) of Section 6.1 following the Term of this Agreement.
4.3 Facilitator acknowledges that during Facilitator's engagement with Organization, Facilitator has and will have access to Confidential Information, that unauthorized disclosure of Confidential Information will damage Organization's business, and that the restrictions contained in this Agreement are reasonable and necessary for the protection of Organization's legitimate business interests. All documents and recorded material containing Confidential Information, whether documentary or electronic, shall remain the property of Organization, and Facilitator shall return to Organization upon request and upon termination or expiration of this Agreement, all such documents and recorded material and all other Confidential Information of Organization. Facilitator acknowledges that its misuse or disclosure or threatened misuse or disclosure of Organization’s Confidential Information will cause irreparable harm to the Organization and the Organization shall have the right to seek injunctive relief without posting a bond for any breach of this Agreement by Facilitator, in addition to all other remedies available at law or in equity.
4.4 Facilitator acknowledges and agrees that Facilitator is not a party to any agreement that limits Facilitator's right or ability to perform services for Organization, and that Facilitator otherwise is free to continue the duties with Organization under this Agreement. Facilitator shall not, during Facilitator's engagement with Organization, improperly use or disclose to Organization or any Organization employee, agent or contractor any proprietary information or trade secret belonging to any current or former employer of Facilitator or any other person or entity to which Facilitator owes a duty of nondisclosure.
5. One Time License.
5.1 Subject to the terms and conditions of this Agreement, Organization hereby grants to Facilitator a limited, revocable, non-exclusive, non-transferable, non-assignable, and non-delegable license to deliver, present, and/or instruct the Eat Breathe Thrive curriculum and all related material (the “Curriculum”) ONE TIME during the Term. For the avoidance of doubt, it is the intent of the parties that Facilitator will lead one single Eat Breathe Thrive program during the Term, and the license granted hereunder is limited to allowing the Facilitator use of the Curriculum for such single program.
5.2 This Agreement confers no license or rights by implication, estoppel, or otherwise.
5.3 Facilitator understands that a material inducement for Organization to enter into this Agreement is Facilitator’s commitment to distribute, market, and take other actions with respect to the Curriculum with a view to maximize the public’s benefit therefrom. In light of the foregoing, all presentation, delivery, instruction, and/or use of the instructional materials shall conform to the highest standards of quality, ethics, expectation, policy, and performance as designated by Organization and Facilitator agrees to list, advertise, and otherwise promote the Curriculum by its full name (Eat Breathe Thrive™), with credit of ownership given to Organization. Furthermore, Organization’s policies, procedures, codes, and guidelines are subject to change without prior notice. It is Facilitator’s obligation to check Organization’s website and comply with any updates.
5.4 No omissions, additions, or changes will be made to the Curriculum by Facilitator without prior written approval by Organization.
5.5 No part of the Curriculum, including but not limited to presentation files, electronic downloaded documents, facilitator materials, client materials, online content, or other course materials owned and copyrighted by Organization, may be used in the creation of a new or adapted course by Facilitator for teaching, instruction, or distribution without written permission by Organization.
5.6 Facilitator shall not teach, display, or otherwise use the Curriculum in a facility that provides treatment for eating disorders, or any hospital, medical center, or other inpatient facility (unless such facility is permitted via a separate license agreement with Organization).
5.7 Facilitator is required to co-facilitate any Eat Breathe Thrive program with another licensed Eat Breathe Thrive facilitator. The Organization, upon its sole discretion, may require Facilitator to choose a different co-facilitator.
6. Independent Contractor Status. The parties intend that an independent contractor relationship has been created heretofore and is continued by this Agreement. Facilitator shall complete the Services rendered hereunder according to its own means and method of work which shall be in the control of Facilitator, but which shall be subject to periodic review by the Organization as to the results of the work. Neither Facilitator nor its employees or subcontractors are to be considered agents or employees of the Organization for federal tax or unemployment insurance tax or other purpose, nor is neither Facilitator nor its employees or subcontractors entitled to any of the benefits that the Organization provides for its employees. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Organization and Facilitator. Facilitator will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Organization, that is inconsistent with Facilitator being an independent Facilitator (and not an employee) of Organization. It is understood that the Organization does not agree to use Facilitator exclusively.
7. Indemnity. Facilitator shall be entirely and solely responsible for its actions and the actions of its employees, agents and subcontractors while providing Services under this Agreement. Facilitator agrees to indemnify, defend and hold harmless the Organization and the Organization’s officers, directors, employees, agents, and clients against all claims, demands, suits, awards and judgments, made or recovered by any person or agencies (i) due to the action or inaction of Facilitator or its employees, agents and subcontractors during the rendering of Services under this Agreement; (ii) Facilitator’s breach of this Agreement; or (iii) relating to a determination that this Agreement does not create an independent contractor relationship.
8.1 Governing Law. This Agreement will be governed by the internal law, and not the law of conflicts, of the State of Colorado.
8.2. Successors and Assigns. Except as otherwise expressly provided herein or in any instruments of transfer or assignment, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not.
8.3. Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
8.4 Waiver of Breach. A waiver by Organization or Facilitator of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by the other party.
8.5 Compliance with Laws. Facilitator shall perform the Services hereunder in a professional and timely manner, and shall comply, at his sole cost and expense, with all applicable laws, rules, and regulations in connection therewith, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability, and other contributions.
8.6 Modification. This Agreement may not be changed except in writing executed by all the parties hereto.
8.7 Termination. Organization may terminate this Agreement for convenience with ten days’ written notice to Facilitator. In addition, either party may terminate this Agreement upon 15 days written notice to the other party if the other party commits any material breach of this Agreement, with such notice specifying the alleged breach by the other party; provided that, such termination shall not become effective if such material breach is cured within such 15 day notice period.
8.8 Notices. Any notices required or permitted hereunder shall be in writing and shall be personally delivered or sent by facsimile, mail, federal express or similar courier service, all of which shall be effective upon receipt.
8.9 Nonsoliciation. During the Term of this Agreement and for 12 months thereafter, Facilitator will not directly or indirectly solicit, induce, or attempt to induce any Organization employee or independent Facilitator to terminate or breach any employment, contractual, or other relationship with Organization.
8.10 Attorneys’ Fees. 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 attorneys’ fees, costs and necessary disbursements in addition to such other relief to which such party may be entitled.
8.11 Counterparts; Facsimile Signatures. This Agreement may be executed in multiple counterparts, each of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same Agreement. This Agreement may be executed by delivery of an original executed counterpart signature page by facsimile transmission.
8.12 Limitation of Liability. In no event will Organization be liable to Facilitator for any consequential, indirect, exemplary, special, or incidental damages arising from or relating to this Agreement EVEN IF ORGANIZATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Organization’s total cumulative liability in connection with this Agreement, whether in contract or tort or otherwise, will not exceed the aggregate amount of fees and expenses paid by Organization to Facilitator for services performed under this Agreement.
8.13 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ORGANIZATION MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CURRICULUM INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE AND THE CURRICULUM IS PROVIDED “AS IS.”
8.14 Liability Insurance. Facilitator is required to have liability insurance at all times during the Term of this Agreement.