WHEREAS, Company is in the business of marketing and Search Engine Optimization;
WHEREAS, Contractor is an independent contractor providing sales services who wishes to assist Company as an independent contractor to solicit orders for Company’s marketing and Search Engine Optimization services; and
WHEREAS, Company wishes to engage Contractor as an independent contractor to solicit orders for Company’s marketing and Search Engine Optimization services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, Contractor and the Company (referred to collectively as the “Parties”) agree as follows:
SECTION 1. SERVICES
1.1. Scope. Contractor shall provide services as an independent contractor salesperson on behalf of the Company. These services include but are not limited to locating potential customers, selling the potential customers on the Company’s Search Engine Optimization services, and arranging for the Company to set up the Search Engine Optimization services. Contractor shall establish the schedule by which Contractor will perform the services, and shall promptly notify the Company in advance of any necessary schedule change. Contractor may utilize a substitute to perform Contractor’s services with prior written notice to the Company. Contractor also shall have full opportunity and ability to offer Contractor’s services to other entities.
1.2. Independent Contractor Status. The Parties agree and understand that Contractor is an independent contractor who has full control over the methods utilized in performing the services described in this Agreement, and payments made by the Company pursuant to this Agreement shall not be subject to withholding of income taxes and/or other employment taxes. Contractor shall be solely responsible for reporting and payment of all self-employment and/or applicable federal and state income taxes and agrees to indemnify and hold the Company harmless on account of any failure by Contractor to do so. Contractor is not and shall not be construed to be an employee, agent, partner, servant or joint venture partner of the Company. Contractor will not make any representation of an employment relationship between Contractor and the Company and will not claim any benefits provided by the Company to its employees. Contractor has no authority to contract for or bind the Company in any manner, except with the prior written consent of the Company. Nothing herein shall be construed as giving the Company control over, or the right to control, the professional judgment, treatment or actions of the Contractor or control over, or the right to control, the means by which the Contractor accomplishes or performs the services required under this Agreement. Contractor shall furnish, at Contractor’s own expense, the equipment, supplies, and other materials used to perform the services. Contractor agrees to indemnify, release, reimburse and hold harmless the Company from any damages, fines, penalties, liabilities, fees, and charges suffered by the Company related to a determination by any governmental agency or court of law that Contractor is an employee rather than independent contractor.
1.3. Reimbursement. As an independent contractor, Contractor shall be solely responsible for Contractor’s own expenses incurred in performing services pursuant to this Agreement. A limited monthly reimbursement for approved marketing or outreach, such as networking groups, is available for 20% of cumulative sales made by Contractor during the one-month period, with a $500 per month limit.
1.4. No Fringe Benefits. Contractor agrees and acknowledges that Contractor is not eligible to participate in any retirement plan, medical plan, life or disability insurance, vacation pay, sick pay, leave, or any other fringe benefit, or entitled to any other rights or privileges applicable to the Company’s employees, whether offered pursuant to law or to the Company’s policies, plans, or agreements, and that the Company offers no such benefits, rights or privileges to Contractor. Independent contractors, such as Contractor, are not eligible for participation in any employee benefit plans sponsored by the Company while classified as independent contractors, even in the unlikely event that such workers are later determined to be common law or statutory employees of the Company.
1.5. No Workers’ Compensation. The Company shall not obtain or provide workers’ compensation insurance on behalf of Contractor, or otherwise provide workers’ compensation benefits. Contractor shall obtain workers’ compensation insurance coverage for himself/herself, if required by law.
1.6. No Reinsurance/Unemployment Compensation. The Company shall make no state or federal reinsurance/unemployment compensation contributions or pay any such taxes on behalf of Contractor. Contractor agrees and acknowledges that Contractor is not entitled to reinsurance/unemployment compensation benefits at the Company’s expense in connection with services performed pursuant to this Agreement.
1.7. No Insurance. The Company shall not provide any insurance coverage of any kind for Contractor.
1.8. Non-Exclusive Relationship. Contractor’s relationship with the Company shall be non-exclusive and Contractor may perform services for other clients as Contractor sees fit, subject to Contractor’s confidentiality and restrictive covenant obligations in this Agreement.
1.9. Initial Term. The term of this Agreement shall commence on the date it is fully executed by all signatories, and shall continue for a period of six (6) months thereafter, unless earlier terminated in accordance with Section 6.
1.10. Renewal Term. Upon expiration of the Initial Term, this Agreement automatically renews for an additional successive six (6) months unless and until either Party provides written Notice of Nonrenewal at least thirty (30) days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”), or unless and until sooner terminated as provided under Section 6. If the Term is renewed for any Renewal Term(s), the terms and conditions of this Agreement during each such Renewal Term are the same as the terms in effect immediately prior to such renewal. In the event either Party provides timely Notice of Intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the Initial Term or then-current Renewal Term, as applicable.
SECTION 2. COMPENSATION
2.1. Commissions. As and for Contractor’s sole compensation for the full performance of services and obligations contained herein, the Company shall pay Contractor a recurring commission as follows:
· for the first ten customers that the Contractor obtains and maintains, Company shall pay a twenty percent (20%) commission on the monthly customers’ monthly bills for the duration of time that the customer engages the Company’s Search Engine Optimization services;
· for obtaining and maintaining at least eleven customers, Company shall pay a twenty-five percent (25%) commission on the monthly customers’ monthly bills for the duration of time that the customer engages the Company’s Search Engine Optimization services. If the number of customers engaging in monthly services drops to ten or less, the Contractor’s commissions will revert back to twenty percent (20%) commission on the monthly customers’ monthly bills until the number increases again to eleven or more; and
· for selling and maintaining forty or more customers, Company shall pay a thirty percent (30%) commission on the monthly customers’ monthly bills for the duration of time that the customer engages the Company’s Search Engine Optimization services. If the number of customers engaging in monthly services drops to between thirty-nine and eleven, the Contractor will receive a recurring commission of twenty-five percent (25%) commission on the monthly customers’ monthly bills until the number increases again to forty or more. If the number of customers engaging in monthly services drops to ten or less, the Contractor’s commissions will revert back to twenty percent (20%) commission on the monthly customers’ monthly bills until the number increases again to eleven or more.
2.2. Bonuses. As for bonuses, the Company shall pay to Contractor a one-time bonus of two-thousand five hundred dollars ($2,500) for reaching and retaining fifty (50) recurring monthly customers. The Company shall pay to Contractor a one-time bonus of five thousand dollars ($5,000) for reaching and retaining one hundred (100) recurring monthly customers. The Company shall pay to Contractor a one-time bonus of twenty thousand dollars ($20,000) for reaching and retaining two hundred (200) recurring monthly customers. Company shall pay any applicable bonus to Contractor within seven (7) business days of the Contractor obtaining the requisite number of customers.
2.3. When Commission Deemed Earned. A commission must be earned, by the Contractor, during the Term of this Agreement, before the Company is obligated to pay the commission to the Contractor. A commission is earned under this Agreement when the customer engages the Company’s Search Engine Optimization services. It is Contractor’s responsibility to confirm customer engagement and then send Company an invoice for the commission earned. Upon receipt of confirmation and the invoice, Company shall pay the commission to Contractor within seven (7) business days. No commission shall be deemed to have been earned by the Contractor if the order is cancelled by the customer or by the Company for any reason prior to the payment of the commission, or if the sale was not made in accordance with the Company’s policies, practices or procedures, or applicable law.
2.4. Payment of Commission and Bonus Upon Termination of the Agreement. Upon termination of this Agreement by any Party as provided herein, Contractor shall no longer be entitled to the commission described in Section 2.1, with the following exception: for any customer for whom the Contractor confirms engagement and sends an invoice to the Company within the seven (7) days preceding the date of termination of the Agreement, Company shall pay Contractor a one-time (not recurring) commission of twenty percent (20%), twenty-five percent (25%), or thirty percent (30%), whichever percentage rate is applicable under the terms of Section 2.1 of this Agreement, on the customers’ first monthly bill. Additionally, if, within the seven (7) days preceding the date of termination of the Agreement, the Contractor obtains the requisite number of customers to trigger a bonus under Section 2.2, the Contractor shall still be entitled to any applicable bonus.
SECTION 3. CONFIDENTIALITY AND NON-DISCLOSURE
3.1. Non-Disclosure of Confidential Information. The Contractor shall keep in strict secrecy and confidence any and all information the Contractor acquires or to which the Contractor has access during the Agreement that has not been disclosed publicly by the Company and is not a matter of common knowledge in the fields of work of the Company (“Confidential Information”). The Confidential Information shall include, but shall not be limited to, trade secrets, technical data, mailing lists, the names of customers, personal information of customers, and the arrangements made from time to time with customers. Except in the course of performing the Contractor’s duties under the Agreement, with prior written approval of the Board of Governors of the Company, or in response to court order, the Contractor shall neither (a) directly or indirectly, disclose any of the Confidential Information at any time to any person except authorized personnel of the Company, nor (b) use the Confidential Information in anyway. In addition to, and not in limitation of the foregoing, all data, drawings and other records and written material prepared or compiled by the Contractor or furnished to the Contractor during the duration of the Agreement with the Company shall be the sole and exclusive property of the Company, and none of the data, drawings or other records, or copies thereof, shall be retained by the Contractor for any reason after the termination of the Agreement.
3.2. Maintaining of Records. Contractor will maintain for a minimum of two years, and make available to the Company upon request during that time, all source materials related to Contractor’s provision of services to the Company.
3.3. Return of Property. Contractor shall return, on or before the termination of this Agreement, and not retain in any form or format, all Company documents (and all copies thereof), data, and other property in Contractor’s possession or control. including, without limitation, Company files, notes, notebooks, correspondence, memoranda, agreements, drawings, records, business plans, forecasts, financial information, specifications, computer-recorded information, tangible property, and any materials of any kind that contain or embody any proprietary or Confidential Information of the Company (and all reproductions thereof in whole or in part). After returning these documents, data, and other property Contractor will permanently delete from any electronic media in Contractor’s possession, custody, or control (such as computers, cell phones, hand-held devices, back-up devices, zip drives, PDAs, etc.), or to which Contractor has access, all documents or electronically stored images belonging to the Company, including writings, drawings, graphs, charts, sound recordings, images, and other data, data compilations, or Confidential Information stored in any medium from which such information can be obtained.
SECTION 4. NON-SOLICITATION AND USE OF NAME
4.1. Non-Solicitation. Contractor agrees that during the term of the Agreement and for a period of two (2) years after termination, the Contractor will not directly or indirectly solicit or engage in representation of any current or prospective customer with whom the Company has done business in the past or will do business with in the future. Contractor also agrees not to directly or indirectly induce employees of the Company to engage in any activity prohibited by the Agreement.
4.2. Use of Company Name. Contractor may use the Company’s name for the duration of the Agreement. If the Agreement is terminated by either party the Contractor must cease from using the Company’s name or representing an association with the Company.
4.3. Non-Disparagement. Contractor agrees that, except in the context of a government agency investigation or proceeding, Contractor will not make or publish any critical, denigrating, disparaging or defamatory written or oral statements in any respect regarding the Company or its directors, officers, employees, customers, or agents, or related to the Company’s business or its products, services, policies or practices, or to encourage or induce others to make or publish any such statements about the Company or its directors, officers, employees, customers, or agents. Contractor agrees not to disparage the Company or its directors, officers, employees, customers, or agents in any fashion, including, but not limited to, any disparagement via the Internet, whether anonymous or not, except if testifying truthfully under oath pursuant to a validly served subpoena or other legal process compelling such testimony.
SECTION 5. ENFORCEMENT
5.1. Enforcement. The Contractor acknowledges that damages at law alone will be an insufficient remedy to the Company if the Contractor violates the terms of Section 3 and 4 of the Agreement and that the Company would suffer irreparable damage as a result of the violation. Accordingly, the Company shall be entitled to obtain injunctive relief to enforce the provisions of Section 3 and 4. Injunctive relief shall be in addition to any other rights or remedies available to the Company or the Contractor, including damages at law. Contractor agrees to pay all attorneys’ fees and other costs associated with the enforcement of the Agreement, if the Company shall take legal action against the Contractor.
SECTION 6. TERMINATION
6.1. Termination. Either party may terminate the Agreement with or without cause upon thirty (30) days’ prior written notice to the other party. The Company may terminate the Agreement immediately on written notice to the Contractor for cause, including without limitation, fraud, misrepresentation, theft or breach of any provision of the Agreement.
SECTION 7. CONTINUING EFFECT
7.1. Continuing Effect. The provisions of Sections 3 and 4 of the Agreement shall continue to be binding upon the Contractor in accordance with the terms of each section, notwithstanding termination of the Agreement for any reason.
SECTION 8. MISCELLANEOUS PROVISIONS
8.1. Assignment. The Agreement may not be sold, assigned, transferred, pledged as collateral, or otherwise encumbered or alienated by the Contractor.
8.2. Binding Effect. The provisions of the Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors, and assigns of the Company and Contractor.
8.3. Notice. All notices and other communications required or permitted by the Agreement shall be in writing and will be effective, and any applicable time period shall commence, when (a) delivered to the following address by hand, mail, or by a nationally recognized overnight courier service (costs prepaid), addressed to the address provided in the first paragraph of this Agreement, in each case marked to the attention of the person (by name or title) designated in the first paragraph of this Agreement, or to such other address, facsimile number, email address, or person as a party may designate by notice to the other party.
8.4. Severability. In the event that any section, subsection, provision, or clause of the Agreement or any combination thereof is found to be unenforceable at law, in equity, or under any presently existing or hereafter enacted legislation or regulation of the United States, any state or subdivision thereof or any municipality, those findings shall not in any way affect the other sections, subsections, provisions, or clauses of the Agreement, which shall continue in full force and effect, and the unenforceable provision shall be interpreted in a manner that imposes the maximum restriction or obligation permitted by applicable law.
8.5. Waiver. No waiver of any provision of the Agreement shall be deemed, or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
8.6. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Minnesota. Any action between Contractor and the Company relating to Contractor’s engagement with the Company, including, without limitation, actions relating to or arising under this Agreement or under contract, equity, tort, fraud, and statutory claims, shall be filed and adjudicated exclusively in the state or federal courts of the State of Minnesota. Contractor and the Company hereby consent to the jurisdiction of such courts for any such action and further waive any objection to the convenience of the forum or venue.
8.7. Legal Representation and Fees. The Company and Contractor have been advised and understand that they each have the right to retain legal representation and involve legal counsel in the negotiation, drafting and review of the Agreement. Each party will bear its own costs related to this Agreement.
8.8. Entire Agreement. The Agreement constitutes the entire agreement and understanding between the parties pertaining to its subject matter. No supplement, modification, or amendment of the Agreement shall be binding unless executed in writing by the Company and Contractor.
IN WITNESS WHEREOF, the parties have executed and delivered the Agreement as of the date first written above.