This Independent Contractor Agreement is entered into as of (Date) (the "Effective Date") between BeautyLynk Corpporation ("Company"), with an address of 21 Drydock Ave 6th Floor, Boston, MA 02110 and with an address at ("Contractor").
WHEREAS, the Company is in the business of maintaining an application to match customer requests, whether submitted online or by telephone, with the requested on demand services.
WHEREAS, the Contractor is in the business of providing cosmetology or aesthetician services, and has the requisite skills, licenses and experience and to perform such services.
WHEREAS, the Company desires to enter into an independent contractor relationship with the Contractor, and the Contractor desires to render services described below for the Company on an independent contractor basis, pursuant to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the promises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Contractor (collectively, the “Parties”) hereby agree as follows:
1. Relationship of the Parties.
- 1.1. The Contractor enters into this Agreement as, and shall continue to be, an independent contractor. Under no circumstances shall the Contractor look to the Company as his/her/its employer, or as a partner, agent, or principal. The Contractor shall not be entitled to any benefits accorded to the Company’s employees including worker’s compensation, disability insurance, vacation or sick pay. The Contractor shall be responsible for providing, including for the Contractor’s employees and agents, at the Contractor’s expense, and in the Contractor’s name, disability, worker’s compensation or other insurance as well as licenses and permits, if any, that are usual or necessary for performing the services.
- 1.2. The Contractor shall pay, when and as due, any and all taxes incurred as a result of the Contractor’s compensation hereunder. The Contractor shall indemnify the Company for any claims, losses, costs, fees, liabilities, damages or injuries suffered by the Company arising out of the Contractor’s failure to pay any taxes due under this section.
- 1.3. Subject to the terms and conditions of this Agreement, the Contractor may represent, perform services for, and contract with as many additional clients, persons, or companies as the Contractor, in his/her sole discretion, sees fit.
- 2.1. The term of this Agreement shall commence on 23 February 2016 and shall continue for one (1) year, unless earlier terminated in accordance with Section 5 (the “Term”). Any extension of the term will be subject to mutual written agreement between the parties.
3. Contractor's Responsibilities and Warranties.
- 3.1. The Contractor agrees to provide to the Company, in the required timeframe, as an independent contractor, the consulting services, projects and deliverables set forth on the attached Exhibit A (the “Services”), which is incorporated herein by this reference.
- 3.2. The Contractor represents that he/she/it has the qualifications and ability to perform the services in a professional manner, without the advice or control or supervision of the Company.
- 3.3. The Contractor warrants that its performance under this Agreement shall be conducted with due diligence and in full compliance with the highest professional standards of practice in the industry and all results will be the Contractor’s independent work. The Contractor shall comply with all applicable law and Company safety rules in the course of performing the Services. If the Contractor’s work requires a license or permit, the Contractor has obtained that license or permit and it is in full force and effect for the duration of this Agreement. For a period of seven (7) days after delivery and acceptance of Services under this Agreement, the Contractor will promptly fix and correct, without charge, any errors and/or defects in such Services.
In consideration for the services to be performed by the Contractor, the Company shall compensate the Contractor as follows:
- 4.1. The Company will pay the Contractor the fees set forth on Exhibit A, which is incorporated herein by this reference.
- 4.2. The Contractor will be responsible for all expenses incurred in performing services under this Agreement unless otherwise agreed upon by the Company and the Contractor.
- 4.3. Except as set forth on Exhibit A or as otherwise agreed pursuant to a valid modification of this Agreement, there are no other fees or costs to be paid by the Company under this Agreement.
- 4.4. The making of any payment or payments by the Company, or the receipt thereof by the Contractor, shall in no way affect the responsibilities and obligations of the Contractor hereunder, and shall not imply acceptance by the Company of any service or deliverable or the waiver of any warranties or requirements of this Agreement.
5. Termination of Agreement.
- 5.1. The Company may terminate this Agreement, effective immediately upon written notice to the Contractor, in the event that the Contractor breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Contractor does not cure such breach within seven (7) days after receipt of written notice of such breach.
- 5.2. If at any time after commencement of the Services required by this Agreement, the Company, in its sole judgment, determines that such Services are inadequate, unsatisfactory, no longer needed, or substantially not conforming to the descriptions, warranties, or representations contained in this Agreement, the Company may terminate this Agreement, in addition to any other relief to which the Company may be entitled. Termination by the Company shall not relieve the Company of the obligation to pay the Contractor for services rendered in conformance with the requirements herein prior to such notice of termination.
- 5.3. Upon expiration or termination of this Agreement for any reason, or at any other time upon the Company’s written request, the Contractor shall, within two (2) days after such expiration or termination, permanently erase all of the Confidential Information from the Contractor’s personal computer systems, inclusive but not limited to personal smart phones, and certify in writing to the Company that the Contractor has complied with the requirements of this Section.
- 5.4. This Agreement shall terminate automatically on the occurrence of (a) bankruptcy or insolvency of either party or (b) the death of the Contractor if the Contractor is an individual or sole proprietorship.
The Contractor shall and does hereby indemnify, defend and hold harmless the Company, and the Company’ officers, directors, shareholders and agents from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorneys’ fees and costs, that the Company incurs or suffers, or may incur or suffer, and that result from, or are related to: (a) any breach by the Contractor of, or failure of the or to perform, any of the representations, warranties, and agreements contained in this Agreement; or (b) any claim by a third party that the services or deliverables provided hereunder, or the Company’s permitted use thereof, infringes a third party's patent, copyright, trademark, trade secret, mask work or other proprietary or other intellectual property right. The Company also agrees that, if any service or deliverable becomes, or in the Contractor’s opinion is likely to become, the subject of an infringement claim as described in subsection (b) above, the Company will permit the Contractor, at the Contractor’s option and expense for all associated costs, either (i) to procure the right for the Company to continue to use such item, or (ii) to replace or modify the item with another item of comparable quality and performance capabilities which is non-infringing, provided such replacement or modification does not cause such item to fail to comply with any of the requirements of this Agreement.
If required by the Company as a condition to engagement, the Contractor will establish to the Company that it has adequate insurance in the determination of the Company.
8. Ownership of Intellectual Property.
- 8.1. All results of the Contractor’s performance of Services for the Company before, on or after the Effective Date, including but not limited to photographs, concepts, ideas, research, inventions, processes, techniques, product specifications, marketing plans, product designs, source code, graphics, drawings, artwork, designs, copy writing, forms, documents, and all other materials and work product, and all of the Contractor’s deliverables under this Agreement, (collectively, the “Contract Work”), shall be the sole and exclusive property of Company, its successors and assigns, and shall be considered “work made for hire” under all relevant copyright laws. The Contractor hereby irrevocably acknowledges and agrees to the Company’s (and its successors and assigns) perpetual and complete ownership of all intellectual property and related rights in and to the Contract Work, and any and all derivative works thereof, and any and all elements of the foregoing, throughout the universe, in all languages and for all purposes. The Contractor hereby waives the benefit of any law, doctrine or principle known as “droit moral,” or “moral rights of authors” or any similar law, doctrine or principle however denominated throughout the universe.
- 8.2. If, for any reason, the Contract Work, any and all derivative works thereof, and/or any and all elements of any of the foregoing, shall be deemed not to be a “work-made-for-hire” under the relevant copyright laws, the Contractor shall assign without further consideration, and hereby irrevocably and perpetually transfers, conveys, assigns and grants, to the Company and its successors and assigns, and the Company hereby accepts from the Contractor, any and all of the Contractor’s right, title and interest in and to the Contract Work, any and all derivative works thereof, and/or any and all elements of any of the foregoing.
- 8.3. The Company shall have the right to have all or any of the Contract Work (including all or any derivative works thereof) copyrighted, trademarked or patented with the government of the United States or any applicable state or foreign government agency in the name of the Company (or its customers or affiliates), at the Company’s expense. On the Company’s request, the Contractor agrees to assist the Company, at the Company’s expense, to obtain patents or copyrights for such Contract Work, including the disclosure of all pertinent information and data, the execution of all applicable applications, specifications, oaths, and assignments, and all other instruments and papers which the Company shall deem necessary to apply for and to assign or convey to the Company, its successors and assigns or nominees, the sole and exclusive right, title and interest in such Contract Work. Prior to disclosure of Company’s Confidential Information (as defined below) to any employees or contract personnel of the Contractor, the Contractor shall obtain written assurances from such employees and contract personnel that they acknowledge and agree that they are subject to and bound by terms materially similar to those contained in this Agreement, including but not limited to the provisions in Sections 8 and 9 regarding ownership and confidentiality.
- 8.4. The Contractor agrees to deliver to the Company all Contract Work when the Contractor no longer provides Services to the Company or upon request by the Company at any other time while providing Services to Company or thereafter, without retaining any copies or excerpts thereof.
- 8.5. The foregoing assignment obligations in this Section shall not apply to any invention that the Contractor made, conceived, first reduced to practice or developed entirely on his or her own time without using any of the Company’s equipment, supplies, facilities or trade secret information unless such invention (1) relates, at the time of conception or reduction to practice, to the Company’s business or actual or anticipated research or development; or (2) results from any work that the Contractor performed for the Company on or after the Effective Date.
9. Confidentiality & Non-Solicitation.
- 9.1. The Contractor acknowledges that it will have access to information and data that are treated as confidential and proprietary by the Company, including, without limitation, trade secrets, technology, and information pertaining to business operations and strategies, customer lists, images, designs, photographs, pricing, marketing, finances, sourcing, personnel, in each case whether spoken, written printed, electronic or in any other form or medium (collectively, “Confidential Information”). Any Confidential Information that the Contractor develops or produces in connection with the Services shall be subject to the terms and conditions of this Section. The Contractor 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 by performance of the Services. The Contractor shall notify the Company immediately in the event it becomes aware of any loss or disclosure of any Confidential Information.
- 9.2. Confidential Information shall not include information that:
- a) Is or becomes generally available to the public other than through the Contractor’s breach of this Agreement; or
- b) Is communicated to the Contractor by a third party that had no confidentiality obligations with respect to such information.
- 9.3. 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. The Contractor agrees to provide written notice of any such order to an authorized officer of the Company within two (2) 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.
- 9.4. Any confidential information disclosed by the Contractor to the Company shall be subject to the provisions of this Section.
- 9.5. The Contractor shall not, for a period of one (1) year after commencement of Services, directly or indirectly, either for himself or on behalf of any other person or entity, recruit or otherwise solicit or induce any customer, service provider, supplier or other business partner of any member of the Company to (a) terminate its arrangement or cease to do business with the Company, or (b) otherwise decrease or diminish in any material respect its relationship with the Company. The Contractor shall not, for a period of one (1) year after the commencement of Services, directly or indirectly, either for himself or on behalf of any other person or entity, solicit any employee, consultant or independent contractor of any member of the Company to terminate his or her employment or service with any member of the Company Group.
10. Conflict of Interest.
The Contractor warrants that the Contractor is free to enter into this Agreement and that the performance of Services under this Agreement by the Contractor will not conflict with or constitute a breach under any other agreement or legal obligation to which the Contractor is bound.
11. Miscellaneous Provisions.
- 11.1. Assignment. This Agreement and all rights hereunder are personal to the Contactor and may not be transferred or assigned by the Contractor at any time.
- 11.2. Integration. This Agreement contains the entire agreement between the parties and supersedes all prior oral and written agreements, understandings, commitments, and practices between them, including all prior agreements, whether or not fully performed by the Contractor before the date of this Agreement. No shrink-wrap, click-wrap, or other terms, conditions or agreements (“Additional Terms”) provided with any software shall be binding on the Company, even if use of such software requires an affirmative “acceptance” of those Additional Terms before access is permitted. All such Additional Terms shall be of no force or effect and shall be deemed rejected by the Company in their entirety.
- 11.3. Choice of Law; Forum Selection. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws principles. Any claims or legal actions by one party against the other regarding this Agreement shall be commenced and maintained in any state or federal court located in the Commonwealth of Massachusetts and the parties hereby submit to the jurisdiction and venue of any such court.
- 11.4. Attorney Fees and Costs. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in the action or proceeding, in addition to any other relief to which it or they may be entitled.
- 11.5. Equitable Relief. THE CONTRACTOR AGREES THAT IT WOULD BE IMPOSSIBLE OR INADEQUATE TO MEASURE AND CALCULATE COMPANY'S DAMAGES FROM ANY BREACH OF THE COVENANTS SET FORTH HEREIN. ACCORDINGLY, THE CONTRACTOR AGREES THAT IF HE OR SHE BREACHES ANY SECTION OF THE AGREEMENT, THE COMPANY WILL HAVE AVAILABLE, IN ADDITION TO ANY OTHER RIGHT OR REMEDY AVAILABLE, THE RIGHT TO OBTAIN AN INJUNCTION FROM A COURT OF COMPETENT JURISDICTION RESTRAINING SUCH BREACH OR THREATENED BREACH AND TO SPECIFIC PERFORMANCE OF ANY SUCH PROVISION OF THIS AGREEMENT. THE CONTRACTOR FURTHER AGREES THAT NO BOND OR OTHER SECURITY SHALL BE REQUIRED IN OBTAINING SUCH EQUITABLE RELIEF AND THE CONTRACTOR CONSENTS TO THE ISSUANCE OF SUCH INJUNCTION AND TO THE ORDERING OF SPECIFIC PERFORMANCE.
- 11.6. Notices. Any notice required or permitted under this Agreement shall be given in writing, either by personal service or by registered or certified mail, postage prepaid, at the addresses set forth in the introductory paragraph to this Agreement.
- 11.7. Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.
- 11.8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
- 11.9. No General Waiver. The failure of any party at any time to require performance by any other party of any provision hereof or to resort to any remedy provided herein or at law or in equity shall in no way affect the right of such party to require such performance or to resort to such remedy at any time thereafter, nor shall the waiver by any party of a breach of any of the provisions hereof be deemed to be a waiver of any subsequent breach of such provisions. No such waiver shall be effective, unless in writing and signed by the party against whom such waiver is sought to be enforced.
- 11.10. Amendment. This Agreement may be amended, modified, or superseded only by an agreement in writing executed by both the Contractor and the Company.
- 11.11. No License. Nothing in this Agreement is intended to grant any rights to the Contractor under any patent, mask work right, copyright, trademark, trade secret or other intellectual property right of the Company, and this Agreement shall not grant the Contractor any rights in or to the Confidential Information.
- 11.12. Survival. Sections 1.1, 1.2, 3.2, 3.3, 3.4, 6, and all of Sections 8 through 11, inclusive, of this Agreement shall survive any termination or expiration of this Agreement.
- 11.13. Merger. This Agreement shall not be terminated by the merger, transformation or consolidation of the Company into or with any other entity.
IN WITNESS WHEREOF, the Company and the Contractor have executed this Agreement as of the Effective Date.