INDEPENDENT CONTRACTOR AGREEMENTS

Sample from Florida Legal Forms, Volume 9, Specialized Forms Copyright 1990, 2019 James W. Martin, Esq. All rights reserved. Provided for background information only, not legal advice.I www.jamesmartinpa.com

INDEPENDENT CONTRACTOR AGREEMENTS

Table of Sections

A. INTRODUCTION Sec. 20.1 In General. 20.2 General Comments Regarding Restrictive Stipulation&--Agreements

Not to Compete or to Diwlge or Use Trade Secrets or Confidential Information.

B. INDEPENDENT CONTRACTOR AGREEMENTS

20.10 Independent Contractor Agreement-General Form. 20.11 Acknowledgment of Sole Proprietorship. 20.12 Agreement With Accountant. 20.13 General Appraisal Agreement. 20.14 Agreement Between Public Agency and Appraiser. 20.15 Business Consultant Agreement. 20.16 Contract for Delivery Service. 20.17 Interior Decorating Contract. 20.18 General Form of Contract Between Printer and Customer. 20.19 Professional Services Contract-Loan Application. 20.20 Marketing Agreement-Restrictive Covenants-Works Made for Hire. 20.21 Agreement With Independent Contractor-Engineer. 20.22 Agreement With Broker-Restrictive Covenants. 20.23 Independent Contractor Agreement-Short Form. 20.24 Subcontract Agreement. 20.25 Agreement-Sales Representative. 20.26 Agreement With Advertising Consultant.

C. AGREEMENTS RESTRICTING CONDUCT

20.100 Agreements (Covenants) Not to Compete. 20.101 Restrictive Stipulations Regarding Confidential Information. 20.102 Restrictive Agreement With Independent Contractor.

Library References: C.J.S. Master and Servant § 3. West's Key No. Digests, Master and Servant e=:>5.

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§ 20.1 INDEPENDENT CONTRACTOR AGREEMENTS

A. INTRODUCTION

§ 20.1 In General

Ch. 20

The relationship between the parties should of course be established in any well drafted employment contract. In some cases the parties may prefer to establish the relationship of owner-independent contractor rather than that of employer-employee. The employeremployee relationship results in tax and related obligations such as the withholding of taxes and the payment of unemployment insurance and worker's compensation. Also, the responsibilities of the employer for the acts of the employee differ from that of the responsibility of the owner for the acts of independent contractors. Naturally, written agreements alone do not determine the relationship between the parties. However, the agreement can be used to structure the relationship and to express the parties' intentions as to what relationship is to be established.

One of the tests used to determine if a person is an independent contractor is the "right to control" test. The other test is the "relativenature-of-the-work" test. Under the traditional "right to control" test, an employer-employee relationship would exist as long as the employer has the right to control both what is done and how it is done. The factors that are considered include whether the occupation is usually done under the direction of the employer or by a specialist without supervision, whether the employer or the person doing the work provides the tools and the place for work and whether or not the work is part of the regular business of the employer. The right of the employer to discharge the person is also taken into account. It is the right to control that is determinative not whether or not control is actually exercised.

Under the "relative-nature-of-the-work" test two elements are required to exist in order to establish the employer-employee relationship. The first element is that the person doing the work must have a substantial economic dependence on the employer. The second element is that there must be a functional integration of the employee's ordinary business and that of the person doing the work. In determining the relationship of the persons under this test the court analyzes the employer's business and the interdependence between that business and the business of the person performing the work.

Whether an individual is an employee or an independent contractor must also be analyzed from a tax law standpoint. Taxes must be withheld on employees, but not on independent contractors. Misclassifying an employee as an independent contractor and failing to withhold income taxes and FICA can result in substantial penalties. The tax law, which is beyond the scope of this work, is constantly changing and should be reviewed by the attorney before making any determination.

300

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.2 The forms in this chapter may be helpful in attempting to document independent contractor status versus employee status.

§ 20.2 General Comments Regarding Restrictive Stipulations-Agreements Not to Compete or to Divulge or Use Trade Secrets or Confidential Information

Agreements which limit competition or limit the manner in which someone is to do business are agreements which are in restraint of trade.

Generally a contract which by its terms is an unreasonable restraint of trade is invalid and against public policy while a contract which provides a reasonable restraint of trade is valid. In order to be valid a restraint of trade must be related to some other transaction such as the sale of a business or contract of employment. Under the modern view, the validity of the covenant and restraint of trade is determined by its reasonableness, the duration of the restraint and the area in which it is to operate being important factors in applying the rule of reasonableness.

Ordinarily a restraint which is not limited as to area would be invalid. However, in some cases such a covenant would be saved by the court limiting its effect to a reasonable area. Similarly, an agreement which is unlimited as to time would normally be invalid but could be interpreted in a more limited way so that its validity could be upheld.

Generally, the covenant should be reasonably restrictive in terms of both time and space. Naturally, the particular circumstances with respect to each individual case is taken into account. This includes considering the nature of the business, the situation of the parties and the circumstances of the particular case. The protection afforded must be fair to the interest of the parties and not interfere with the public interest or impose any hardships on the party who is restricted. The motives of the parties are not considered in determining the reasonableness of the restrictions.

Agreements which are incident to a contract of employment by which an employee agrees not to disclose trade secrets or engage in competition after or during employment are not viewed with the same indulgence as restrictions which are incident to a contract of sale of a business, but will nevertheless be sustained if they are no wider than reasonably necessary for the protection of the employer and do not impose undue hardship on the employee.

Naturally,. the forms in this book cannot take into account the circumstances of any particular situation. See West's F.S.A. § 542.33.

§§ 20.3-20.9 are reserved for supplementary material.

301

§ 20.10 INDEPENDENT CONTRACfOR AGREEMENTS

B. INDEPENDENT CONTRACTOR AGREEMENTS

Ch. 20

§ 20.10 Independent Contractor Agreemen~eral Form AGREEMENT made between the "COMP ANY": Address: and the "CONTRACTOR":

Address: IN CONSIDERATION of their mutual promises made herein, and

for other good and valuable consideration, the parties hereby agree as follows:

1. Scope of Work. The Company engages the Contractor to furnish the work described in the Schedule attached to this Agreement at the times specified in that Schedule, and the Contractor agrees to furnish the work at the times specified in the Schedule.

2. Price and Payment. The Company agrees to pay the Contractor in accordance with the price and payment terms set forth in the Schedule attached to this Agreement, and the Contractor agrees to accept such amounts as full payment for its work and to sign such waivers of lien, affidavits and receipts as the Company shall request in order to acknowledge payment.

3. Independent Contractor Relationship. The Contractor is an independent contractor and is not an employee, servant, agent, partner or joint venturer of the Company. The Company shall determine the work to be done by the Contractor, but the Contractor shall determine the legal means by which it accomplishes the work specified by the Company. The Company is not responsible for withholding, and shall not withhold, FICA or taxes of any kind from any payments which it owes the Contractor. Neither the Contractor nor its employees shall be entitled to receive any benefits which employees of the Company are entitled to receive and shall not be entitled to workers' compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or Social Security on account of their work for the Company.

4. Business of Contractor. The Contractor is engaged in the business of doing the work specified in the attached Schedule. Copies of the following documents verifying the Contractor's established business shall be attached to this Agreement:

(a) Current occupational licenses issued by the counties and municipalities in which the work is to be performed.

(b) Articles of incorporation, if the Contractor is a corporation.

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Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.10 (c) Partnership or joint venture agreement, if the Contractor is

a partnership or joint venture.

(d) Acknowledgment of sole proprietorship, if the Contractor is a sole proprietor.

(e) Federal Employer Tax Identification Number.

5. Employees of Contractor. The Contractor shall be solely responsible for paying its employees. The Contractor shall be solely responsible for paying any and all taxes, FICA, workers' compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing and other benefits for the Contractor and its employees, servants and agents.

6. Insurance. The Contractor shall furnish the Company with current certificates of coverage of the Contractor, and proof of payment by the Contractor, for workers' compensation insurance, general liability insurance, motor vehicle insurance and such other insurance as the Company may require from time to time. If the Contractor is not required by the Florida Workers' Compensation Law to provide workers' compensation to the Contractor or its employees, the Contractor shall waive its exemption or exclusion from that law and shall purchase workers' compensation insurance and furnish the Company with a current certificate of coverage and proof of payment. The Contractor shall maintain all such insurance coverage and shall furnish the Company with certificates of renewal coverage and proofs of premium payments. If the Contractor fails to pay a premium for insurance required by this paragraph before it becomes due, the Company may pay the premium and deduct the amount paid from any payments due the Contractor and recover the balance from the Contractor directly.

7. Risk. The Contractor shall perform the work at its own risk. The Contractor assumes all responsibility for the condition of tools, equipment, material and job site. The Contractor shall indemnify and hold harmless the Company from any claim, demand, loss, liability, damage or expense arising in any way from the Contractor's work.

8. Assignment. The Company may assign any or all of its rights and duties under this Agreement at any time and from time to time without the consent of the Contractor. The Contractor may not assign any of its rights or duties under this Agreement without the prior written consent of the Company.

9. Term. This Agreement is effective as of the date signed by both parties and shall continue in effect until cancelled by either party upon written notice to the other party.

10. Law. This Agreement shall be governed and construed in accordance with Florida law.

IN WITNESS WHEREOF, the parties have executed this Agreement on the dates shown below.

303

§ 20.10 INDEPENDENT CONTRACTOR AGREEMENTS Ch. 20

COMPANY: CONTRACTOR:

By:---------By. _________ _

Title_· ________ _ Title_· _______ _

Date·~-------- Date·~--------

SCHEDULE TO INDEPENDENT CONTRACTOR AGREEMENT

COMPANY: CONTRACTOR: DATE: SCOPE OF WORK: (Attach separate sheet, if necessary)

PRICE AND PAYMENT TERMS:

ADDfflONAL PROVISIONS OF AGREEMENT:

§ 20.11 Acknowledgment of Sole Proprietorship COMPANY: CONTRACTOR: BUSINESS OF SOLE PROPRIETORSHIP: DATE:

304

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.12 The Contract.or hereby represents and acknowledges t.o the Compa

ny that the Contract.or is a sole propriet.orship engaged in the business specified above and that the Contract.or is not a corporation, partnership or joint venture. The Contract.or makes this representation and acknowledgment in order to induce the Company t.o enter into an Independent Contractor Agreement with the Contract.or. The Contractor agrees t.o indemnify and hold harmless the Company from any and all claims, demands, losses, liability. damages or expenses arising out of the failure of this representation and acknowledgment.

Signature of CONTRACTOR:

§ 20.12 Agreement With Accountant This agreement dated __ ____, 19_ is made

BETWEEN

whose address is referred to as the "Client",

AND

whose address is referred to as the "Accountant."

1. Parties to This Agreement. The Client, in order to properly conduct its business, employs the Accountant. The Accountant is a ___ (Certified Public Accountant or Public Accountant), duly licensed by the laws of Florida and engaged in the business of providing independent accounting services and assistance to clients.

2. Services to Be Provided. (First Alternative) The Accountant agrees to perform the follow

ing services on behalf of the Client: (Second Alternative) During the length of this contract, the Ac

countant shall serve the Client and perform any and all services in accounting and tax matters as the Client requires in connection with the Client's business including the preparation of monthly accounting statements, tax reports and returns. The Accountant will also provide supervisory and advisory services to the Client when requested.

3. Payments to Accountant. (First Alternatitle) The Client agrees to pay the Accountant as

follows: (Second Alternative ) The Client agrees to pay the Accountant for

services at the following rates:

Rate per Hour Services of (Third Alternative) The Client will pay the Accountant the sum of

$ ___ per year as a retainer.

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4. When Payments Are Due. (First Alternative ) The Accountant shall bill the Client on a

regular basis for services rendered which bills will be due and payable upon receipt. The Client will be charged interest at a yearly rate of ___ % on any balance due that is not paid within 30 days from the date of bill.

(Second Alternative) The retainer shall be paid on a ___ basis with equal installments due and payable on the day of each

5. Term of Agreement. This agreement shall become effective ___ and shall continue in effect until ___ or until terminated in accordance with this agreement.

6. Termination of this Agreement. This agreement may be terminated by either party on ___ days notice to the other party. All such notices shall be by certified mail or delivered personally.

7. Entire Agreement. This contract expresses the entire agreement between the Client and the Accountant regarding this matter. This agreement can only be modified with another written agreement signed by both the Client and the Accountant. This agreement shall be binding upon both the Client and the Accountant and their respective heirs, legal representatives and successors in interest.

8. Legal Fees. If either party brings a law suit in order to enforce or interpret the provisions of this agreement, the prevailing party shall be entitled to reasonable attorney's fees in addition to any other relief to which that party may be entitled.

9. Governing Law. This agreement shall be interpreted according to the laws of the State of Florida.

10. Independent Contractors. Both the Accountant and the Client agree that the relationship created by this agreement is that of independent contractor and not that of employee and employer. The Accountant is responsible for the payment of any taxes, including without limitation, all Federal, State and local personal and business income taxes, sales and use taxes, other business taxes and license fees arising out of the activities of the Accountant.

11. Signatures. Both the Client and the Accountant have read and agreed to this agreement.

Witness or Attested by:

Client

Accountant

306

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.13

§ 20.13 General Appraisal Agreement This contract dated ___ 19_ is made

BETWEEN whose address is

referred to as the "Appraiser",

AND

whose address is ref erred to as the "Client."

1. Property to Be Appraised. The Client hires the Appraiser to appraise the following property in accordance with this agreement:

2. Appraisal Services. The Appraisal of the above property is to be made for the following purpose: [for example, to determine the market value or used in the evaluation in the estate of John Smith, etc.]

3. Method of Appraisal. In preparing this appraisal the appraiser will consider all factors normally taken into account for an appraisal of this nature, including but not limited to the following: [recent sales of comparable properties in the immediate vicinity, etc.]

4. Appraisal Report. The appraiser will prepare an appraisal report including a full description of the work completed by the appraiser in accordance with this agreement. This will include maps, photos, statistical and graphic data which will serve to explain and support the opinion of the appraiser. The report will be completed in approximately ___ and will be delivered to the Client.

5. Confidentiality. The appraiser will keep the contents of the appraisal report confidential and will not provide any information with respect to same except upon the written consent of the Client.

6. Fees for Services. The appraiser will be paid the following fee: [set forth the total amount or the basis upon which the total will be determined, such as the hourly rate ]. The Client will pay the appraiser a retainer of$ ___ as a deposit. Upon the receipt of this retainer, the appraiser will proceed with its work in accordance with this contract. The balance of the appraiser's fees will be due when the completed appraisal report is provided to the client.

7. Costs and Expenses. The Client will reimburse the Appraiser for any extraordinary out-of-pocket expenses including the cost of any outside consultants who were hired, provided however, that no such outside consultants will be hired without the express written consent of the Client.

8. Court Appearances. In addition to the charges set forth above, if it becomes necessary for the Appraiser to appear in court to give testimony, an additional fee of$, ___ per day or$. ___ per half-day will be charged for each court appearance. The same fee will also be charged if the appraiser is required to give a deposition in connection with any litigation. As much as practicable the Client will

307

§ 20.13 INDEPENDENT CONTRACfOR AGREEMENTS Ch. 20

give notification to the Appraiser of any cancellation of any scheduled court or deposition appearance. The Appraiser may charge an appropriate fee if such appearances are cancelled without adequate notice to the Appraiser. The charges for any court appearances or depositions shall be due and payable upon receipt of the Appraiser's bill for same to the Client.

9. Signatures. Both the Client and the Appraiser have read and agreed to this agreement.

Witnessed or Attested by:

Appraiser

Client

§ 20.14 Agreement Between Public Agency and Appraiser This agreement entered into this ___ day of ___ , 19-, by

and between the ___ of the City of __ _, State of Florida, hereinafter referred to as the "Local Public Agency", and __ _, hereinafter referred to as the "Appraiser",

Witnesseth: Whereas, the Local Public Agency proposes to acquire certain

property hereinafter referred to as the Project Area (more particularly described hereinafter) and desires to obtain an appraisal of each parcel in the Project Area, including all improvements, structures, appurtenances, or other elements of value which are recognized by the courts in eminent domain proceedings; and

Whereas, the Appraiser represents that he is authorized and qualified to make such appraisal and is familiar with recognized appraisal practices and with the standards required for determining values in eminent domain proceedings;

Now, therefore, the Local Public Agency and the Appraiser, for the considerations and under the conditions hereinafter set forth, agree as follows:

1. Duties of Apprauer. The Appraiser agrees to: (a) Make a personal inspection of each parcel in the Project Area

including all improvements, structures, appurtenances, or other elements of value thereon or thereunto belonging which are recognized by the courts in eminent domain proceedings and to advise the Local Public Agency, in a written report, of his opinion of the fair market value of each such parcel.

(b) Verify, insofar as is practicable, all recent sales of the property appraised, and all recent sales of comparable property which the

308

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.14 Appraiser has taken into consideration as reflecting the fair market value of the property appraised. Such verification shall include interviewing the seller, buyer, agent, or any other person known to have participated in the transaction, to ascertain the consideration, the terms and conditions of the sale, any special factors affecting the amount of the consideration, and the actual condition of the property at the time of transfer.

(c) Complete said report ___ days following notice by the Local Public Agency to proceed with the appraisal of each certain parcel.

2. Standards for Appraiser's Report. The report in __ _ copies shall, in form and substance, conform to recognized appraisal practices and to the principles of evaluating property for determining values in eminent domain proceedings.

3. Contents of Appraiser's Report. The report shall, among other things, contain the following:

(a) The Appraiser's opinion of the fair market value of each parcel including improvements, structures, appurtenances, or other elements of value recognized by the courts in eminent domain proceedings. In the event that the parcel is improved, he shall state the age, dimensions, kind, character and condition of each of the various structures, improvements, or fixtures appertaining to the property together with the Appraiser's opinion of the property's highest and best use and an allocation of the value and utility of each such structure, improvement, fixture (or other element of value) in relation to the highest and best use to which the property in the Appraiser's opinion, is adaptable. It shall include a photograph of the property.

(b) A report of any and all circumstances found by the Appraiser to exist with respect to unlawful condition, use, or occupancy of the property being appraised.

(c) The names and addresses of the owners of the property and the date and place of recording the instrument of conveyance under which the owners claim title.

(d) The assessed value of the property and the amount of the current real estate tax levy.

(e) A statement showing all recent sales of the property appraised, and a statement of all sales of comparable property which the Appraiser has taken into consideration in estimating the fair market value of the subject property. The statement covering sales of comparable properties shall indicate the factors of comparability and shall set forth the names of the grantor or grantee, a general description of the property and its condition, date of transfer, place of recording of the conveyance, and a map, diagram or other information indicating the location of such sales in relation to the subject property.

(f) A scale plat of the parcel being appraised.

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(g) In the event of severance, the Appraiser shall state his opinion of the fair market value of the whole, the fair market value of the part not taken, and the value of any special benefits accruing to the part not taken which under local law may be taken into consideration; and shall state his opinion and analysis and the fair allocation of the value of the part taken, and that represented in the diminished value of the remainder, giving due consideration under local law to the value of such special benefits, if any. Where an allocation is made for severance damages, a full statement of the reasons for such an allocation should be made.

(h) A statement of the rental value of the property and a history of the rental experience if any.

(i) A statement as to existing utilities and the adequacy thereof with respect to the service available to the property; a brief description of the character of street improvements approximate to the site of the property appraised; and a statement showing transportation, school, marketing, and other miscellaneous facilities such as churches, parks, playgrounds and public libraries.

(j) A statement as to whether or not the property or any portion thereof is subject to special assessments; if so, the nature, amount, and number of years during which payments must be made.

(k) A statement of all factors taken into consideration by the Appraiser believed by him to influence, either favorably or unfavorably, the market value of the Project Area; together with a statement concerning the activity of the real estate market in the immediate area within and surrounding the Project Area during the past few years and current market conditions.

4. Defective Work. The performance of services or acceptance of the appraisal reports required hereunder shall not relieve the Appraiser from obligation to correct any defective work subsequently discovered, and all incomplete, inaccurate, or defective work shall be remedied by the Appraiser on demand without cost to the Local Public Agency.

5. Witness in Legal Proceedings. In the event that the testimony of the Appraiser is required in any legal proceedings in connection with the Local Public Agency's acquisition of the property herein referred to, the Appraiser agrees to appear as a witness on behalf of the Local Public Agency and agrees that the fair and reasonable compensa-tion for his services shall be the sum of $ ___ per day for each full day's attendance in court. In the event such attendance shall be one-half day or less, compensation shall be made on the basis of $, __ _ for such half day. The Appraiser shall keep such personal records of all details with respect to the appraisal of parcels as will enable the Appraiser to appear as such witness.

310

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.14 6. Compensation. It is understood and agreed that the Apprais

er shall receive compensation for services performed hereunder (except as provided in Paragraphs 5 and 8 hereof) in the total amount of $.___ which services shall include reinspection for additional or supplemental data as required under provisions of Paragraph 4 hereof, and which shall include such supplemental services as may be necessary or desirable to enable the Appraiser to perform the services required under Paragraph 5 hereof (exclusive of payment for actual court appearances).

7. Designation of Parcels to Be Appraised. The Local Public Agency shall furnish a map or plat of the Project Area and the legal description and dimensions of the parcels. On such map the parcels shall be designated by number, and in the appraisal reports the numbers used shall correspond with the numbers shown on the map or plat of the Project Area furnished by the Local Public Agency. The Local Public Agency shall also furnish the tract ownership data required to be included in the appraisal report by section 3(c) hereof.

8. Additional Parcels. If the Local Public Agency desires to include any additional parcels the Appraiser will, if requested by it, in writing, prior to completion of work hereunder perform the same services as herein set forth in connection with such additional parcels at the rate of $.___ per parcel and otherwise upon the same conditions as herein set forth.

9. Exclusion of Parcels. The Local Public Agency may at any time by notice in writing to the Appraiser exclude any parcel or parcels from the operation of this Contract and in such event equitable adjustment shall be made for all work completed and accepted prior to such exclusion and for any substantial amount of work or service performed to the date of such exclusion but not in such form that it can be accepted by the Local Public Agency, such adjustment in no event to exceed the total amount provided in Paragraph 6 hereof (but exclusive of the provisions of Paragraphs 5 and 8 hereof).

10. Assignment. The Appraiser's obligations and duties under this Contract shall not be assigned in whole or in part, but this shall not prohibit the assignment of the proceeds due hereunder to a bank or financial institution. This Contract may be assigned by the Local Public Agency to any corporation, agency or instrumentality authorized to accept such assignment.

11. Confidential Information. Unless otherwise provided by law, the Appraiser agrees that his report and conclusions are for the confidential information of the Local Public Agency and that he will not disclose his conclusions, in whole or in part, to any person whatsoever, other than to submit his written report to the Local Public Agency, and will only discuss the same with it or its authorized representatives, until called upon to testify in relation to such report

311


and conclusions under oath in a judicial forum for the purpose of determining fair market value.

12. Cancellation. In the event of breach of any condition or provision hereof, the Local Public Agency shall have the right, by prior written notice to the Appraiser, to terminate the employment of the Appraiser hereunder and cancel this Contract and have the work thus cancelled otherwise performed, without prejudice to any other rights or remedies of the Local Public Agency. The Local Public Agency shall have the benefit of such work as may have been completed up to the time of such termination or cancellation, and with respect to any part which shall have been delivered to and accepted by the Local Public Agency there shall be an equitable adjustment of compensation, which in no event shall exceed the total amount provided in Paragraph 6 hereof (but exclusive of the provisions of Paragraphs 5 and 8 hereof).

13. Definition of Parcel. The term "parcel" as used herein means any contiguous tract of land in the same ownership whether such tract consists of one or more platted lots or a fractional part thereof.

14. Sequence of Work. It is understood that the time within which the work is to be perfo~ed is of primary importance and of the essence of this Contract. The Appraiser will proceed with the work hereunder in such sequence and order as to the different parcels as the Local Public Agency may, in writing, direct, and will furnish and deliver the appraisal reports to the Local Public Agency as soon as completed.

15. Warranty. As an inducement to the execution of this agreement by the Local Public Agency, the Appraiser represents and agrees that the Appraiser has not employed any person to solicit or procure this contract, and has not made, and will not make, any payment or any agreement for the payment of any commission, percentage, brokerage, contingent fee or other compensation in connection with the procurement of this contract; and that the Appraiser has not now, and will not acquire any interest (including that of real estate agent or broker), .direct or indirect, present or prospective, in any of the parcels in the Project Area prior to acquisition of all of the parcels by the Local Public Agency; and has not employed and will not employ in connection with work to be performed hereunder any person having any such interest during the term of this contract either directly or indirectly.

16. Equal Opportunity. There shall be no discrimination by reason of race, creed, sex, color or national origin against any employee or applicant for employment qualified by training and experience for work under this contract.

17. Officials Not to Benefit. No Member of or Delegate to the Congress of the United States of ,America, and no Resident Commission-

312

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.15 er, shall be admitted to any share or part hereof or to any benefit to arise herefrom.

18. Conflict of Interest. No member of the Local Public Agency shall participate in any decision relating to this contract which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested; nor shall any member, officer, agent or employee of the Local Public Agency have any interest direct or indirect in this contract or the proceeds thereof.

19. Description of Project Area. The Project Area is described as follows:

In Witness Whereof, the parties hereto have caused this Agreement to be executed in triplicate on this ___ day of __ _

In the presence of:

Appraiser

Local Public Agency

By:

Title

§ 20.15 Business Consultant Agreement This agreement dated ___ 19_ is made


referred to as the "Company",

AND whose address is

referred to as the "Consultant". 1. Consultation Services. The company hereby employs the

consultant to perform the following services in accordance with the terms and conditions set forth in this agreement:

(First Alternative ) The consultant will consult with and advise the company regarding the following matters:

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(Second Alternative) The consultant will consult with the officers and employees of the company concerning matters relating to the management and organization of the company, their financial policies, the terms and conditions of employment, and generally any matter arising out of the business affairs of the company. The consultation shall include advice regarding employment, control, supervision, hiring and discharge of employees and independent contractors hired by the company.

The consultant will also provide advice with respect to employee benefits and enter into negotiations regarding same on behalf of the company.

The consultant will also provide advice with respect to the purchase and/or lease of equipment and supplies relating to the company's business.

2. Term of Agreement. This agreement will begin ___ and will end ___ Either party may cancel this agreement on __ _ notice to the other party in writing, by certified mail or personal delivery.

3. Time Devoted by Consultant. It is anticipated that the consultant will spend approximately ___ in fulfilling its obligations under this contract. The particular amount of time may vary from day to day or week to week. However, the consultant shall devote a minimum of ___ per month to its duties in accordance with this agreement.

4. Place Where Services Will Be Rendered. The consultant will perform most services in accordance with this contract at __ _ [address]. In addition the consultant will perform services on the telephone and at ___ or such other places as designated by the company to perform these services in accordance with this agreement.

5. Payment to Consultant.

(First Alternative ) The company will pay the consultant the sum of $,___ per year payable in equal monthly installments on or before the ___ day of each month. The consultant will also be paid for extraordinary traveling and living expenses if travel is required by the company.

(Second Alternative) The consultant will be paid at the rate of $ per ___ for work performed in accordance with this agreement. However, the consultant will be paid at least $. ___ per month regardless of the amount of time spent in accordance with this agreement. The consultant will submit an itemized statement setting forth the time spent and services rendered on a ___ basis, the company will pay the consultant the amounts due as indicated by statements submitted by the consultant on the ___ day of each

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Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.16 6. Independent Contractor, Both the company and the consult

ant agree that the consultant will act as an independent contractor in the performance of its duties under this contract. Accordingly, the consultant shall be responsible for payment of all taxes including Federal, State and local taxes arising out of the consultant's activities in accordance with this contract, including by way of illustration but not limitation, Federal and State income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or business license fees as required.

7. Confidential Information. The consultant agrees that any information received by the consultant during any furtherance of the consultant's obligations in accordance with this contract, which concerns the personal, financial or other affairs of the company will be treated by the consultant in full confidence and will not be revealed to any other persons, firms or organizations.

8. Employment of Others. The company may from time to time request that the consultant arrange for the services of others. All costs to the consultant for those services will be paid by the company but in no event shall the consultant employ others without the prior authorization of the company.

9. Signatures. Both the company and the consultant agree to the above contract.

Witnessed or Attested By: [Company]

By:

Consultant

§ 20.16 Contract for Delivery Service

This contract dated __ _, 19_ is made


referred to as the "Manufacturer",

AND

whose address is referred to as the "Trucker."

l. Business. The Manufacturer is engaged in the production and fabrication of ___ and in selling and delivering same to the purchasers thereof. The Trucker is engaged in the transportation by trucks owned and operated by him and his employees.

2. Services. The Trucker shall transport and deliver to the purchasers of all said goods and wares produced by the manufacturer

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for and during the term of ___ months from ___ 19_ when and as requested by the manufacturer.

3. Charges. The Manufacturer shall pay to the trucker for such services an amount determined by the number and size of the articles transported and the distance covered in making said delivery. The charges shall be based on the following schedule:

The mileage shall be computed from the factory to the delivery point.

4. Control of Drivers and Loaders. The Trucker shall furnish all necessary trucks, drivers and loaders who should all be subject to the exclusive orders and directions of the Trucker and under his exclusive control, and shall be employed and paid for his services by the Trucker.

5. Relationship of Parties. The Trucker shall be qualified as a contract carrier under the laws of the state of Florida and his relationship to the Manufacturer shall be that of independent contractor and the employing unit of all employees used in said transportation service.

6. Insurance. The Trucker shall carry cargo insurance covering all articles transported for the Manufacturer and shall be responsible to the Manufacturer for loss and damage to said goods and for failure to deliver the same in as good a condition as when received, whether caused by acts of commission or omission of the employees of the Trucker or otherwise.

7. Duties. The Trucker shall make prompt deliveries when and as requested.

8. Payment. The Manufacturer shall pay for such services within ten days after receipt of bill for such services, said billing to be made on the first of each month.

9. Termination. Either party may terminate this agreement by notice in writing addressed to the other at his place of business.

10. Signatures. The Trucker and the Manufacturer sign and agree to the above.

Witnessed or Attested By:

Manufacturer

Trucker 316


§ 20.17 Interior Decorating Contract This contract dated ___ 19_ is made


referred to as the .. Owner,"

AND

whose address is referred to as the "Decorator."

1. Areas for Interior Decorating. The following areas are to be covered by this contract:

2. Services to Be Performed. The services to be performed by the Decorator are limited to the following:

A. The Decorator will act as designer and consultant on the style and design of the interior of the areas listed above. This includes decorations, furnishings, interior architectural details, treatment of walls, floors, ceiling and lighting. The Designer will also collaborate with the Owner and the Owner's agents and attend all necessary meetings as required for the proper development of the work.

B. The Designer will provide preliminary layouts and drawings to be submitted for the Owner's approval. The Decorator will prepare specifications for all design details including paint and varnish, specifications, charts, color sheets and suggested materials.

C. The Decorator will also provide purchasing specifications, schedules and requisitions for use by the Owner in purchasing the suggested materials.

D. The Decorator will also supervise the construction, installation and decoration in collaboration with the Owner and the Owner's agents.

3. Owner's Responsibilities. A. The Owner shall inform the Decorator of any changes that will

effect the work of the Decorator.

B. Revisions and changes may be made during the early stages of this work. Changes in completed stages of work which require major revisions of completed work by the Decorator, will be charged on a time/cost basis. Such changes and revisions will be made at the written request of the Owner.

C. The Owner will provide necessary facilities, personnel and space for the Decorator's use in carrying out his responsibilities under this contract.

4. Compensation. The Owner will pay the Decorator a sum of $ ___ payable as follows: $ ___ when this agreement is signed; $___ upon acceptance of the basic design and layout plans;

9 Fla.legal Fonns-Speciatized Fonns-12 317

§ 20.17 . INDEPENDENT CONTRACTOR AGREEMENTS Ch. 20

$___ upon receipt of all specifications and requisitions; and $ ___ upon completion of this contract.

5. Purchases by Decorator. If the Owner requests that the Decorator purchase the items required for the completion of the interior decorating, the Decorator will do so as the agent for the Owner and will handle such purchasing through delivery and payment for a service charge of 15% over the gross amount of the purchases.

6. Termination. Either party may terminate this agreement upon written notice to the other. In the event of termination the Owner will be responsible for payment for all work completed with the payment amounts based upon the fees set forth in this agreement.

7. Signatures. Both the Owner and the Contractor agree to the above.

Witnessed or Attested by:

Owner

Decorator

§ 20.18 General Form of Contract Between Printer and Customer

This contract dated ___ 19_ is made

BETWEEN

whose address is referred to as the "Printer",

AND

whose address is referred to as the "Customer."

l. Employment of Printer. The customer hereby engages the printer to perform the printing services described on the attached schedule A.

2. Manner of Work.

A. All work will be done in a good and workmanlike manner in accordance with this contract.

B. The printer shall be entitled to rely on the instructions and requests given by the customers, employees or other representatives and such instructions or requests shall be binding on the customer.

C. The customer shall supply the printer with a copy of the material to be printed. The printer shall then prepare a proof and provide same to the customer who shall promptly correct same and return it to the printer with all changes and corrections noted on the margin of such proof in the usual manner.

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Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.18 D. The printer is obligated to deliver the numbers of copies

specified on the print order. However, an overrun [or underrun] of onehalf of 1% shall be deemed to be an acceptable delivery. No underrun shall be deemed acceptable (or omit the last sentence and add the bracketed language to the first sentence).

3. Completion.

(First Alternative) The printer shall complete and deliver the work to the customer on or before ___ 19_.

(Second Alternative) The printer shall complete this job within a reasonable time and shall not be liable for any damages due to a delay in completion.

4. Compensation to Printer.

A. Amount.

(First Alternative) The total compensation to the printer for performance of this contract shall be $. ___ subject to adjustment as provided in this contract.

(Second Alternative) The estimated compensation to the printer for performance of this contract shall be $. ___ subject to adjust-ment as provided in this contract. This estimate is calculated on the basis of standard hourly rates charged by the printer for this type of work. This estimate is based on the work being performed at regular hourly rates. If premium hourly rates are required to be charged, the cost to the customer will be increased accordingly. The customer will also pay for paper and other materials and services purchased by the printer with such charges to be at cost plus the printers standard markups. The estimated price is also based upon the specifications supplied by the customer and does not include sales taxes, postage or shipping charges. The estimate is also subject to the price increase clause below.

B. Price Increases. The compensation to the printer may be increased if there is an increase in costs to the printer for supplies, labor or services or an increase in taxes, duties or other items beyond the control of the printer.

The price may be increased if additional work or unusual efforts such as overtime work is required by the printer due to the actions of the customer. The printer will also charge the customer for the additional time required to make changes or corrections which are required due to customer error or changes.

C. When Payments are Due.

(First Alternative) Upon completion of the work and delivery to the customer, the printer will bill the customer for the work. This bill will be due and payable within 30 days of its date. If payment is not

319


made within 30 days, the customer shall be required to pay an addition-al ___ % per month on the unpaid balance.

(First Alternative-Additional Paragraph) Deposits will be required to be credited against the cost of this contract on the following schedule:

The balance due will be billed in accordance with the preceding paragraph.

5. Limitations on Liability for Work Performed.

The printer agrees to perform the work in a good and workmanlike manner consistent with the customs and practices of the industry. The printer expressly excludes all other guarantees, warranties or representations. The printer will not be responsible for any indirect or consequential damages, with the printer's sole liability being limited to the repair and reasonable costs of correcting any errors which are attributable to the printer.

The printer will not be responsible for any claims by the customer relating to the quality of the work which are not received by the printer within 60 days of delivery of the printed material to the customer. In no event shall the printer's liability under this contract exceed the compensation paid to the printer under this contract.

6. Ownership of Printing Materials. The printer shall be the sole owner of all printing materials such as printing plates, offset film or other items which are prepared by the printer unless otherwise agreed.

7. Unavoidable Delays. The printer shall not be responsible for unavoidable delays beyond the control of the printer such as labor stoppages, strikes, fire or acts of God.

8. Indemnification. The printer shall be defended, indemnified and held harmless by the customer against any and all claims, losses, damages, expenses or judgments for any claimed acts of alleged libel, copyright infringements, plagiarism, invasion of privacy or civil rights, or for any other claim which results from the subject matter to be printed according to this contract. Likewise, the printer shall indemnify, hold harmless and defend the customer of any similar claims which arise out of unauthorized deletions, changes, or additions made by the printer to materials supplied by the customer.

9. Signatures. Both the printer and the customer agree to the terms of this contract.

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Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.19 Witnessed or Attested by:

Printer

Customer

Schedule A

[Specifications with respect to work to be performed]

§ 20.19 Professional Services Contract-Loan Application AGREEMENT made this ___ day of __ _, 19_, between

__ _, a Florida nonprofit corporation, hereinafter called "Consult-ant", and ___ a Florida corporation, hereinafter called "Appli-cant".

In consideration of their mutual promises made herein, and for other good and valuable consideration, the parties hereby agree as follows:

1. Services. Applicant hereby engages Consultant to perform the following document preparation services:

A. Assist Applicant in the preparation of an ___ loan package for its project of renovating the ___ located at __ _, __ _, Florida, formerly known as the ___ ("Pro-ject"), including assistance in the preparation of forms, documents and supporting exhibits as set forth on Exhibit "A" attached hereto. Applicant intends to use said package to present the Project to prospective private and public lenders and grant agencies in Applicant's effort to seek additional fmancing for the Project.

B. Assist Applicant in seeking financing for the Project through the ___ loan program by assisting Applicant in sub-mitting the ___ loan package to ___ ("City") and request-ing that the City request an ___ award from ___ ("HUD") in the approximate amount of ___ Dollars ($, ___ ), the proceeds of which would be used to provide subordinated mortgage financing to Applicant for the Project.

Consultant has not, cannot and will not warrant or represent that any financing will be obtained from the above efforts.

2. Compensation. Applicant shall pay Consultant the sum of ___ Dollars ($. ___ ) as compensation for its services under this agreement, which shall be payable as follows:

A. Applicant shall pay Consultant the sum of ___ Dollars ($, ___ upon signing of this agreement, which sum shall be nonrefundable.

321


B. Applicant shall pay Consultant the ___ Dollars ($ ____ ) balance of the compensation upon final approval of financing for the Project by any private, public or other lender or grant agency to whom the application is submitted. This balance shall not be payable unless said approval is received.

3. Other Costs. Applicant acknowledges that Applicant will be responsible for paying, in addition to the Consultant's compensation, any and all loan application costs incurred by Consultant, including but not limited to filing fees. Applicant shall also be responsible for paying closing costs, such as title insurance, appraisal, fire/hazard/flood insurance, recording fees, and lenders' attorneys fees.

4. Information. From time to time as requested by Consultant, Applicant shall furnish to Consultant all information which is reasonably necessary to perform this agreement, including but not limited to the information set forth on Exhibit "B" attached hereto, and Applicant shall pay for any costs incurred in furnishing such information. Delays in furnishing this information will delay the Consultant's performance of this agreement. Consultant shall not disclose any personal or other confidential information furnished to it by Applicant unless such disclosure is reasonably necessary in performing these services.

5. No Limitation Upon Consultant,s Other Activities. Applicant acknowledges that Consultant provides services to other developers, to nonprofit corporations and to government agencies. Applicant agrees that Consultant shall not be prevented from continuing to provide services to anyone who now or in the future may desire Consultant's services, whether or not performing such services might be considered a conflict of interest and whether or not such entities are related or opposed in any way to Applicant or its Project.

6. Materials Owned by Consultant. Any compilation of data, work product and other materials provided or obtained by Consultant in performing this agreement shall be the property of Consultant, except for confidential information about Applicant which is furnished by Applicant.

7. Possible Loan Terms. Applicant acknowledges that any financing obtained may require the following, among other terms and conditions, which Applicant agrees are satisfactory to Applicant:

A. Personal guaranties by the principal individuals, providing for joint and several liability as primary obligors.

B. Guaranties by all corporations involved in owning and operating the Project, providing for joint and several liability as primary obligors.

C. Collateral assignment of life insurance on key individuals, possibly decreasing term life insurance.

D. Fire/hazard/flood insurance policy loss payee and additional insured endorsements.

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Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.19 E. Mortgagee title insurance policy.

F. Collateral assignment of rents and leases, with requirement that rents be sufficient to pay all operating expenses and debt service.

G. Applicant will he responsible for funding all cash needed above financing, whether additional cash is required for Project cost overruns, closing costs, costs not anticipated, or otherwise.

8. Miscellaneous. This agreement is made in the State of Flori-da and shall be governed by Florida law. This is the entire agreement between the parties and may not be modified or amended except by a written document signed by the party against whom enforcement is sought. This agreement may be signed in more than one counterpart, in which case each counterpart shall constitute an original of this agreement. Paragraph headings and the terms "Consultant" and "Applicant" are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this agreement. Wherever used herein, the singular shall include the plural, the plural shall include the singular, and pronouns shall be read as masculine, feminine or neuter as the context requires. The prevailing party in any litigation relating to this agreement shall be entitled to recover its reasonable attorneys fees from the other party.

IN WITNESS WHEREOF, the parties have signed this agreement as of the day and year first above written.

Witnesses

Witnesses

Consultant:

By:_,------------ President

Applicant:

By: _________ _

Title: ___________ _

EXHIBIT "A"

[Type in here]

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§ 20.19 INDEPENDENT CONTRACTOR AGREEMENTS Cb. 20

EXHIBIT "B"

Some of the Information Which Applicant Shall Furnish to Consultant

1. Current appraisal of the Project by an M.A.I. appraiser.

2. Feasibility study of Project.

3. Construction plans and specifications for Project.

4. Furniture, fixture and equipment cost estimates as quoted by suppliers or vendors.

5. Construction cost estimates as quoted by contractors.

6. Professional service contracts and cost estimates, including but not limited to architectural, engineering, accounting, and legal.

7. Interim financing cost estimates.

8. Corporate financial statements, including but not limited to balance sheets and profit and loss statements for historical, interim and pro forma periods.

9. Current personal financial statements for all Project principals owning or controlling 10% or more of any corporate or other owner or borrower.

10. Articles, bylaws, partnership agreements, list of current officers and directors, etc. of all corporate or partnership borrowers or owners.

11. Project new job creation ~nd related profiles in format specified by Consultant.

12. Any and all other information reasonably requested by Consultant.

§ 20.20 Marketing Agreement-Restrictive CovenantsWorks Made for Hire

THIS AGREEMENT made this ___ day of __ _, 19_, by and between __ _, a Florida corporation, hereinafter called "Compa-ny", and __ _, of [address] __ _, a ___ corporation, herein-after called "Marketing Agency", and joined in by __ _, of __ _, and by __ _, of __ _, hereinafter called "Guarantors".

WHEREAS, Company is in the business of · and

WHEREAS, Company and Marketing Agency desire that Marketing Agency assist Company in obtaining customers and orders for Company; and

WHEREAS, Marketing Agency shall be compensated for its efforts by the commissions provided for in this Agreement; and

324

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.20 WHEREAS, the Guarantors are the shareholders, principals or

otherwise closely related to Marketing Agency, and their joinder in this Agreement is a material part of the consideration for Company entering into this Agreement;

NOW THEREFORE, in consideration of their mutual promises made herein, the parties hereby agree as follows:

1. Engagement; Territory; Sale of Services. Company hereby engages Marketing Agency, and Marketing Agency hereby accepts said engagement, to obtain customers for Company and orders for Compa-ny's services (consisting of " ___ ") within the following Territory: City of __ __, Florida; State of · State of · State of __ __,· State of · State of · and State of __ _ Company shall engage no other marketing agent within this territory during the term of this Agreement as long as Marketing Agency is not in breach of this Agreement, meets the sales performance standards set by Company, and fully reaches the marketplace for Company's services in this territory. Marketing Agency may also work in other geographical areas as agreed upon by Company and Marketing Agency in writing from time to time, but such areas shall not be exclusive. Company's services shall be sold directly to customers. No goods, products, supplies, equipment or services are being sold by Company to Marketing Agency. All services to be performed on behalf of customers shall be performed by Company and not by Marketing Agency or anyone else other than Company. Marketing Agency's responsibility under this Agreement is to market and obtain orders for Company's services and not to perform the actual services sold.

2. Sales and Marketing. It is expressly agreed that an effective and united marketing approach is imperative. In order to have such an approach, Marketing Agency shall be solely responsible for developing and implementing all sales programs and marketing plans for Company in the Territory, and shall be solely responsible for all advertising and other costs of such programs and plans. All sales programs and marketing plans shall be developed and implemented at the discretion of the Marketing Agency, but shall be subject to prior written approval by Company before implementation.

3. Limitation on Sales. All customer orders taken by Marketing Agency shall be subject to Company's approval and acceptance. Only Company may finalize an order and make it a binding contract to provide Company's services to a customer.

4. Compensation to Marketing Agency. Company shall pay Marketing Agency, as full compensation for its services to Company, a monthly payment equal to ___ percent( ____ %) of the Gross ___ sold by Marketing Agency in the prior calendar month for which Company has received payment in full, based on the Marketing Agency's sales allowing Company to bill customers in accordance with Company's Bill Rate Schedule set by Company from time to time. At

325


the present time, the Company's Bill Rate Schedule for customers is (a) ___ percent ( ___ %) of Gross ___ plus (b) ___ Said Bill Rate Schedule can be changed from time to time at the sole discretion of Company. The monthly payment shall be made by the 15th day of the following month for prior months sales, after and only if Company has received payment from the customer. The term "sold" as used herein, shall be defined as ___ processed by Company and paid for by the customer.

5. Term of Agreement. The term of this Agreement is one (1) year commencing on the date of this Agreement, unless terminated earlier as provided for in this Agreement. This Agreement shall automatically renew for additional successive one (1) year renewal terms, which renewal terms may be terminated by either party upon ninety (90) days written notice to the other party. No bona fide customer order which was taken by Marketing Agency prior to receipt of notice of termination shall in any way be affected by such termination, but shall be subject to Company's approval and acceptance; and Marketing Agency shall continue to receive compensation under this Agreement for such orders for a period of one (1) year after termination for these accounts. However, notwithstanding the foregoing, if Marketing Agency has breached any provision of this Agreement, Marketing Agency shall not be entitled to such compensation.

6. Sales Performance Standards. Company hereby establishes the minimum sales performance standards for Marketing Agency which are set forth on Schedule "A" attached hereto. All of the provisions of Schedule "A" are hereby incorporated herein by reference. Marketing Agency shall be in breach of this Agreement if it at any time fails to be in compliance with the standards and other provisions of Schedule "A".

7. Termination for Cause. Company may immediately terminate this Agreement at any time by written notice to Marketing Agency for any of the following causes, in which case all rights of Marketing Agency under this Agreement shall cease:

A. The breach by Marketing Agency or any Guarantor of any provision of this Agreement.

B. The commission of an illegal act by the Marketing Agency or any Guarantor; or

C. The filing of a petition for relief under any of the provisions of the Bankruptcy Code by Marketing Agency or any Guarantor; or

D. The failure on the part of the Marketing Agency to meet or exceed the performance standards and other provisions of Schedule "A" attached hereto.

In the event this Agreement is terminated for cause, Company shall thereupon, at its option, immediately have the right to discontinue any

326

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.20 and all agreements, rights and relations of Marketing Agency with Marketing Agency's salesmen, marketing agents, employees or other representatives appointed by Marketing Agency with regard to the sale of Company's services, and Company may directly contact and engage such representatives to work with Company. Notwithstanding the termination of this Agreement, if Company terminates this Agreement for the sole cause of failure to meet the minimum sales performance standards, Company shall continue to pay Marketing Agency for a period of one (1) year, in accordance with the provisions set forth in this Agreement as if the Agreement expired naturally and was not terminated for cause.

6. Independent Contractor Relationship. Marketing Agency is an independent contractor and is not an employee, servant, partner or joint venturer of Company. Company shall determine the work to be done by Marketing Agency, but Marketing Agency shall determine the legal means by which it accomplishes the work specified by Company. Marketing Agency shall hire its own employees and engage its own salesmen, marketing agents and other representatives to perform the work required of Marketing Agency under this Agreement. Company is not responsible for paying compensation to Marketing Agency's employees, salesmen, marketing agents or other representatives, nor for withholding taxes on same. Company shall not withhold FICA or taxes of any kind from any payments which it owes Marketing Agency. Neither Marketing Agency nor its employees, salesmen, marketing agents or other representatives shall be entitled to receive any benefits which employees of the Company are entitled to receive and shall not be entitled to workers' compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or Social Security from Company.

7. Insurance. Marketing Agency shall furnish Company with current certificates of coverage of Marketing Agency, and proof of payment by Marketing Agency, for workers' compensation insurance, general liability insurance, motor vehicle insurance and such other insurance as Company may require Marketing Agency to carry from time to time. Marketing Agency shall maintain all such insurance coverage and shall furnish Company with certificates of renewal coverage and proofs of premium payments. If Marketing Agency fails to pay a premium for insurance required by this paragraph before it becomes due, Company may pay the premium and deduct the amount paid from any payments due Marketing Agency and recover the balance from Marketing Agency directly.

8. Place of Business; Right to Inspect. Marketing Agency agrees to maintain a place of business and to notify Company of its location. Company shall have the right to inspect said place of business at all reasonable times during business hours, with prior notice.

327


9. Recordkeeping. In order to enable Marketing Agency to have a complete record of its sales, Company agrees to furnish Marketing Agency monthly a report of all ___ processed by Company which resulted from sales by Marketing Agency. Such reports shall belong to Company and shall constitute confidential information, which Marketing Agency shall return to Company immediately upon demand.

10. No Compete; No Disclose Information; Etc. Marketing Agency and Guarantors, jointly and severally, hereby covenant and agree as follows:

A. During the term of this Agreement, and also for the period of two (2) years after the expiration or termination of this Agreement, Marketing Agency will not directly or indirectly own, manage, be employed by, engage in, carry on or pe connected in any other manner with any business in the Territory or in any other state in which the Company is then engaged in business, which business engages in the business of __ _, or any other business similar to the type of business conducted by the Company at that time.

B. Marketing Agency will not, at any time, either during the term of this Agreement or thereafter, directly or indirectly make known or divulge to any person,. firm, or corporation the names or addresses of any of the customers of the Company, except for the purpose of performing its services to Company under this Agreement.

C. Marketing Agency will not, during the period of two (2) years after the expiration or termination of this Agreement, directly or indirectly, either for itself or for any other person, firm, or corporation, call upon, solicit, divert, or take away, or attempt to solicit, divert, or take away, any of the customers of the Company.

D. Marketing Agency will not at any time, in any fashion, form, or manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm, or corporation in any manner whatsoever any information of any kind, nature, or description concerning any matters affecting or relating to the business of the Company, including, but not limited to, the names of any of its customers or prospective customers or any other information concerning the business of the Company, its manner of operation, its plans, or any other data of any kind, nature, or description, without regard to whether any or all of the foregoing matters would be deemed confidential, material, or important; provided however, that Marketing Agency may disclose such information to a customer of the Company in the ordinary course of business.

E. All books, records, files, forms, reports, accounts and documents relating in any manner to the Company's business or customers, whether prepared by Marketing Agency or Company or anyone else, shall be the exclusive property of the Company and shall be returned immediately to the Company upon the Company's request at any time.

328

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.20 F. Guarantors hereby covenant and agree that the above restric

tive covenants also apply to each of them as individuals, and in applying the above covenants to each Guarantor the word "Guarantor" shall replace the term "Marketing Agency" wherever it appears.

G. The parties hereby agree that each of the foregoing matters are important, material, and confidential, and gravely affect the effective and successful conduct of the business of the Company and affect its reputation and goodwill, and that any breach of the terms of this Paragraph is a material breach of this Agreement, from which Marketing Agency and Guarantors may be enjoined and for which Marketing Agency and Guarantors shall also pay to the Company all damages (including but not limited to compensatory, incidental, consequential and lost profits damages), which arise from the breach, together with interest, costs and attorneys fees to collect such damages. Company may waive a provision of this Paragraph only in a writing signed by two officers of Company. The waiver by Company of a breach by Marketing Agency or Guarantors of any provision of this Paragraph shall not operate or be construed as a waiver of any subsequent breach by Marketing Agency.

11. Risk. Marketing Agency shall perform the work at its own risk. Marketing Agency assumes all responsibility for the working conditions.

12. Indemnification. Marketing Agency shall indemnify and hold harmless the Company from any claims, demands, losses, liability, damages or expenses arising in any way from Marketing Agency's work. Company shall bold Marketing Agency harmless against Company's errors, omissions, and failure to perform such services for Company's customers as Company is required by contract to perform and which are the result of orders obtained by Marketing Agency.

13. No Representations, Etc. Marketing Agency acknowledges that no representations or statements have been made to it which would modify or tend to modify any of the provisions of this Agreement in any way. No representative of the Company has authority to waive any provisions or to modify or to change the terms of this Agreement except only by supplemental written agreement executed by a duly authorized officer of Company and by Marketing Agency.

14. Assignment. Company may assign any or all of its rights and duties under this Agreement at any time and from time to time without the consent of Marketing Agency. Marketing Agency may not assign any of its rights or duties under this Agreement without the prior written consent of Company.

15. No Waiver. The failure of either party to require performance by the other party of any provision hereof shall in no way affect the full right to require such performance at any time thereafter. Nor shall the waiver by either party of a breach of any provision hereof be

329


taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.

16. Right to Change Services or Products. Company reserves the right to change the design of any service or part thereof at any time with notice to Marketing Agency. If any such change is made, there will be no obligation on Company to make such changes upon any services sold by Marketing Agency prior to the change or after the change.

17. Attorneys' Fees. In connection with any litigation or collection arising out of this Agreement, the Company shall be entitled to recover all expenses incurred, including but not limited to reasonable attorneys' fees, in all jurisdictions and at all levels, including appeals.

18. Governing Law; Venue Law. This Agreement shall be construed and enforced according to the laws of the State of Florida. This Agreement is entered into in the State of Florida. County and ___ County, Florida, shall be proper venue for any litigation arising out of this Agreement.

19. No Proprietary Rights Reserved by Marketing Agency. Marketing Agency has no proprietary rights to the territory, customers or services of Company and shall not be entitled to any such rights by this Agreement, or otherwise. Upon expiration or termination of this Agreement, Company shall have no claim at all to any territory, customers, marketing plan, or other parts of the business of Company. Marketing Agency hereby acknowledges and agrees that all writings, works, and other products of Marketing Agency's services under this Agreement shall belong to Company, that such items constitute worksmade-for-hire and belong solely to Company and that Marketing Agency shall sign such further instruments as Company may from time to time request to evidence this fact. Marketing Agency hereby grants to Company all patents, trademarks, service marks, copyrights, and other rights in and to any and all products of the work of Marketing Agency under this Agreement.

20. Miscellaneous. No change, addition, deletion or amendment of this Agreement shall be valid or binding upon either party unless in writing and signed by the party. It is declared by both parties that there are no oral or other agreements or understandings between the parties affecting this Agreement. This Agreement supercedes all previous agreements between the parties. This Agreement shall not become binding upon Company until and unless executed by the President or other duly authorized executive officer of Company.

21. Personal Guaranty. In consideration of Company entering into this Agreement, Guarantors hereby jointly and severally agree that they personally guarantee the performance of the foregoing Agreement by Marketing Agency and by Guarantors. Guarantors hereby agree that the parties may from time to time amend the Agreement by

330

Cb. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.20 signed and written agreement, and that Guarantors shall remain personally liable on the Agreement as amended without their signing same. Guarantors also agree that no additional notice of any kind need be given to them in order to hold them liable on this guaranty. Guarantors may be joined in any action against Marketing Agency in connection with this Agreement. Company may recover against Guarantors without first bringing suit or recovering against Marketing Agency. Guarantors' liability on the contract shall be primary, joint and several with Marketing Agency and not secondary. This guaranty shall inure to the benefit of Company and its successors and assigns and shall be binding upon the Guarantors and their personal representatives.

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written.

Witnesses

Witnesses

Witnesses

Witnesses

COMPANY: ---, a Florida corporation

By: ___ , President

MARKETING AGENCY:

By:

Title:

GUARANTORS:

_________ (SEAL)

Name:

_________ (SEAL) Name:

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§ 20.21 Agreement With Independent Contractor-Engineer AGREEMENT made between __ _, a Florida corporation, here

inafter called "---", and [name] , of [address] , hereinafter called "Contractor".

WHEREAS, is engaged in the business of start-up and testing of __ _, and

WHEREAS, Contractor is engaged in the same general business as __ _, and

WHEREAS, ___ desires to contract services from Contractor for ___ 's business;

NOW, THEREFORE, in consideration of their mutual promises made herein, the parties hereby agree as follows:

1. Services. Contractor shall provide such services to ___ as are usually provided by Contractor in its business and as requested by ___ from time to time. Contractor shall furnish duly-qualified persons to provide the services under this Agreement, which persons shall at all times be the Contractor or employees of the Contractor, and not employees of ___ Contractor shall not allow any employee to provide services under this Agreement until the Employee is approved by ___ The services provided by Contractor must meet the approval of ___ and shall be subject to ___ 's general right of inspection and supervision of Contractor's services to secure their satisfactory delivery. Contractor agrees to comply with all applicable laws, regulations and rules that relate to the services to be provided.

2. Payment. ___ shall pay Contractor for its services provid-ed from time to time under this Agreement on the basis of time spent by Contractor and Contractor's employees in providing the services. The amount paid shall be based on the rate of $ ___ per hour per person. ___ shall not be liable to Contractor for overtime work (work by any one person in excess of forty hours in one week) unless ___ expressly agrees to the specific overtime work in advance, in which case the amount paid by ___ to Contractor for the overtime work shall be based on the total rate of $--- per hour per person working overtime. ___ shall not be liable to Contractor for per diem expenses of persons performing the services unless ___ ex-pressly agrees in writing to pay per diem expenses, in which case per diem expenses shall be paid to Contractor at the rate of $--- per hour of work per person working (excluding overtime), but not to exceed a maximum of$, ___ per day per person working that day. Contractor shall submit to ___ a bill for its services under this Agreement not more often than once a week, and ___ shall not be required to pay Contractor for its services more often than once a week.

3. Independent Contractor Relationship. The parties intend that this Agreement create an independent contractor relationship between them. ___ is interested only in the results achieved by

332

Cb. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.21 the services of the Contractor; the manner of legally achieving those results is the responsibility of the Contractor. Contractor is a profes-sional person and is not an agent or employee of ___ for any purpose. ___ is not responsible for deducting, and shall not deduct, from payments to Contractor any amounts for withholding tax, FICA, insurance or other similar items relating to Contractor or Contractor's employees. Contractor shall be solely responsible for deducting and paying such items. Neither Contractor nor Contractor's employees shall be eligible or entitled to any of the benefits to which employees of ___ may be entitled on the account of ---, such as work.men's compensation, unemployment compensation, insurance, paid vacations, paid holidays, pension, profit sharing, Social Security, and other benefits that may be available. Contractor agrees to maintain any work.men's compensation insurance required by law or to document with ___ any exemption of Contractor from workmen's compensation or similar laws.

4. Liability. The services to be performed under this Agreement will be performed entirely at Contractor's risk. Contractor assumes all responsibility for the condition of tools, equipment and job site. Contractor will carry at all times liability insurance relating to its services in an amount acceptable to ---· Con tractor agrees to indemnify ___ for any and all liability, losses or claims arising in any way out of the services.

5. Assignment. ___ may assign all or part of its rights and duties under this Agreement at any time and from time to time without the consent of Contractor. Contractor may not assign any of its rights or duties under this Agreement without the prior written consent of

6. Term. This Agreement is effective as of the date signed by both parties. Either party may cancel this Agreement upon thirty (30) days prior written notice to the other party; otherwise, this Agreement shall remain in force until---, 19_,

7. Law. This Agreement shall be construed and governed under the laws of Florida.

IN WITNESS WHEREOF, the parties have executed this Agree-ment on this ___ day of ___ , 19_.

By:

Title:

Contractor: [Name]

[Signature] ________ _

Title:

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§ 20.22 Agreement With Broker-Restrictive Covenants AGREEMENT made this ___ day of __ _, 19_, between

__ _, a Florida corporation, hereinafter called "Corporation", and __ _, of __ _, hereinafter called "Broker".

WHEREAS, Corporation is engaged in the business of acquiring (as defined below) ___ and other ___ and is engaged in related activities; and Corporation only acquires ___ which are already in existence at the time of the transaction in which Corporation is a party, and Corporation does not take part in any transactions in which ___ are created; and

WHEREAS, Broker is engaged in the business of selling, placing and negotiating ___ and other ___ as a broker and is engaged in related activities; and

WHEREAS, Broker desires to be trained by Corporation and to become an agent of Corporation upon the terms and conditions set forth below;

NOW, THEREFORE, in consideration of their mutual promises and undertakings set forth herein and for other good and valuable consideration, the parties hereby agree as follows:

1. Recitals. The parties acknowledge and agree that the recitals set forth above are true and correct.

2. Definitions. Wherever used in this Agreement, the following words and phrases shall have the following meanings unless otherwise stated:

3. Training. In consideration of Broker's promises, covenants, undertakings, warranties and representations made herein, Corporation agrees to provide to Broker such training, instructions and confidential information about Corporation's methods and procedures for ___ as Corporation deems reasonably advisable for Broker to know. Such training shall include but not be limited to ___ Because most of the procedures, methods and information to be provided to Broker by Corporation constitute confidential information which Corporation would not otherwise disclose to Broker, this Agreement contains restrictive covenants of Broker relating to this and other information. The training shall take place at the office of Corporation in __ _ ___ or at such other place designated by Corporation, and shall take place at such time or times as Corporation designates. Broker shall pay its own travel, room and board expenses and shall attend the training at the time and place designated.

4. Agency. When Broker completes the training and is approved by Corporation, Broker shall become the exclusive agent for Corpora-tion's ___ activities in the following geographical area, hereinafter called the Territory:

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Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.22 Broker's duty and responsibility as agent shall be to advertise, contact, and solicit for ___ to be acquired by Corporation and to immediate-ly inform Corporation of ___ which may be acquired from persons or entities in the Territory from time to time. In consideration of Corporation training Broker, of Corporation appointing Broker its exclusive agent in the Territory, and of Corporation's other promises and undertakings made herein, Broker agrees to inform Corporation of such ___ before informing anyone else, and Broker further agrees not to inform anyone else of such ___ or otherwise directly or indirectly assist anyone other than Corporation in acquiring such ___ except as to ___ which Corporation informs Broker in writing Corporation does not desire to acquire. Broker shall assist Corporation in evaluat-ing ___ which may be acquired and shall assist Corporation in acqmnng ___ which Corporation desires to acquire. Notwith-standing the foregoing, Broker is not authorized to obligate Corporation to acquire any ___ and is not authorized to sign any legal docu-ment binding Corporation. Broker shall be solely responsible for all costs and expenses which Broker incurs in its activities as agent for Corporation, whether or not such activities benefit Corporation, unless Corporation agrees in writing to share the expense prior to Broker incurring the expense.

5. Independent Contractor Relationship. Broker is an independent contractor and is not an employee, partner or joint venturer of Corporation. Corporation shall determine the services to be performed by Broker, but Broker shall determine the legal means by which it accomplishes the services in accordance with Corporation's guidelines. Corporation is not responsible for withholding, and shall not withhold, FICA or taxes of any kind from any payments which may be due Broker. Broker is not entitled to receive any benefits which employees of Corporation are entitled to receive and shall not be entitled to workers compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or social security on account of its services to Corporation. Broker shall furnish and pay for its own office, secretarial, employees, telephone, travel and other expenses. Broker shall not use Corporation's name in Broker's name. Broker shall make it clear to the public that Broker is an agent of Corporation only for the purposes set forth herein. Broker shall indemnify, defend and hold harmless the Corporation from and against any and all claims, demands, losses, actions, proceedings, liabilities, damages, expenses and attorney fees of Corporation which either (a) consist of liabilities or expenses of Broker (including but not limited to Broker's rent, utilities, insurance, salaries, commissions, taxes, licenses, advertising, postage, equipment, repairs, supplies, transportation, entertainment and travel, for all of which Broker shall be solely responsible), or (b) arise out of any act or omission of Broker or of an employee or agent of Broker or of anyone else under the supervision or control of Broker.

335

§ 20.22 INDEPENDENT CONTRACfOR AGREEMENTS Ch. 20

6. Compensation. As full payment for Broker's services to Corporation, Corporation shall pay Broker compensation as follows: _

Compensation shall be paid by Corporation to Broker within sixty (60) days after the closing on the respective __ _

7. Term. The term of this Agreement shall begin on the date of this Agreement. Unless sooner terminated in accordance with the provisions herein set forth, this Agreement shall continue until terminated by either party giving six (6) months written notice to the other party. H Broker is in default of this Agreement at the time of termination, Broker shall not be entitled to receive any further compensation. H Broker is not in default of this Agreement at the time of termination, Broker shall be entitled to receive such compensation as it may be due.

8. Rules. Broker shall follow the rules, guidelines, procedures, methods, directions and instructions set by Corporation from time to time. Broker's failure to do so constitutes default of this Agreement.

9. Territory. Broker agrees not to act outside the Territory. Corporation shall not assign other agents to the Territory during the term of this Agreement.

10. Restrictive Covenants. Broker covenants and agrees with Corporation as follows, and Broker acknowledges that Corporation would not be entering into this Agreement if Broker had not made these covenants:

a. During the term of this Agreement and for a period of three (3) years immediately after termination of this Agreement, Broker will not directly or indirectly contact, solicit or call upon any Source with the intention or result of diverting such Source to another or of making such Source available to another.

b. During the term of this Agreement and for a period of three (3) years immediately after termination of this Agreement, Broker will not directly or indirectly use or assist anyone other than Corporation in using any Source.

c. Broker will not at any time, during or after the term of this Agreement, directly or indirectly disclose to anyone any of the following information, which the parties hereby agree is confidential information of Corporation, without the prior written consent of Corporation: (a) the names or addresses or other information about the Sources of Corporation; (b) the contents of any f"tles of Corporation; (c) the contents of any f"tles of Broker relating to ___ acquired by Corpora-tion or containing other confidential information of Corporation; (d) Corporation's methods, procedures or systems of acquiring, advertising, evaluating, promoting, marketing and coordinating the acquiring of ___ . (e) Corporation's methods, procedures or systems of __ _ or of its other services; (t) any other information which Corporation

336

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.22 informs Broker is confidential information or proprietary information of Corporation.

d. All files, papers, books, records, reports, contracts, documents, drafts and other writings and things relating to Corporation or to Sources or to ___ acquired or to be acquired by Corporation, whether such items are prepared by Broker or otherwise come into the possession of Broker, are and shall remain the exclusive property of Corporation and shall be returned to Corporation by Broker upon demand at any time during or after the term of this Agreement.

e. Broker makes these covenants for itself and for its employees, officers, directors, partners, shareholders, agents, brokers, associates and independent contractors. Broker shall be deemed to be in default of a covenant if the covenant is violated by Broker or by any of the employees, officers, directors, partners, shareholders, agents, brokers, associates or independent contractors of Broker.

f. Broker acknowledges that each of the foregoing matters is important and material to the business of Corporation and agrees that any violation of any of these covenants is a material breach of this Agreement.

11. Default and Remedies. Broker shall be in default of this Agreement if Broker or any employee, officer, director, partner, shareholder, agent, broker, associate or independent contractor of Broker violates any provision hereof, including but not limited to the restrictive covenants, or if any warranty or representation made herein by Broker is untrue or misleading. Corporation shall have all remedies at law or in equity upon default of this Agreement. The Corporation may pursue its remedies separately or concurrently at its election. In addition to other remedies, Corporation shall have all of the following remedies upon default of this Agreement:

a. Temporary and permanent injunction restraining Broker from violating this Agreement and requiring that Broker perform this Agreement, Broker hereby agreeing that Corporation would not have an adequate remedy at law.

b. Damages including but not limited to compensatory, incidental, consequential and lost profits. In the alternative, at the election of Corporation, Broker shall pay to Corporation the sum of ___ Dollars ($ ____ ) as liquidated and agreed upon damages, in which case Broker agrees that Corporation's damages would not be ascertainable and easily susceptible of proof.

c. Punitive damages. d. Reasonable attorneys fees and costs, for all matters relat

ing to this Agreement before, during and after suit, trial, and appeals, including but not limited to expert witness fees and deposition costs.

e. An accounting from Broker.

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f. Corporation may terminate this Agreement upon written notice to Broker.

Any lawsuit for breach of this Agreement may be brought in __ _, Florida.

12. No Waiver. No act or omission to act by Corporation shall constitute a waiver, release or modificatio~ of Corporation's rights unless Corporation specifically waives, releases or modifies such rights by an instrument in writing signed by Corporation and delivered by Corporation to Broker. The waiver, release or modification by Corporation of a default by Broker shall not constitute a waiver, release or modification of another or subsequent default by Broker.

13. Compliance With Law. Broker represents, warrants and covenants that Broker has complied, and shall hereafter comply, with all laws, rules, ordinances and regulations of federal, state and local governments and all agencies and subdivisions thereof, including but not limited to __ _, ___ Broker further represents, warrants and covenants that Broker now holds in good standing and shall continue to hold in good standing all licenses required to fully perform this Agreement.

14. Information Furnished. Broker hereby warrants and represents that all reports, documents and other information (including but not limited to credit reports, appraisals, title information, legal documents and financial information) submitted by Broker to Corporation, whether or not relating to Accounts, shall be genuine, accurate, valid and properly executed.

15. Manner of Acquiring. Corporation shall decide whether to acquire an ___ and shall coordinate the actual act of acquiring of an ___ through an attorney, ___ or other closing agent chosen by Corporation. Broker shall assist Corporation in the actual act of acqu1rmg an ___ only upon the written authority of Corporation for that specific transaction. Broker is not authorized to, and Broker hereby covenants that Broker will not, represent Corporation at the closing of the acquiring of any Account or give any instructions to the closing agent, unless specifically authorized by Corporation in writing to do so.

16. Right to Accounting. Corporation shall be entitled to an accounting from Broker at any time and from time to time upon written request from Corporation to Broker. For the purposes of this Agreement, "accounting" means a complete and accurate disclosure of all documents, reports and other information requested by Corporation relating to any matter arising out of this Agreement, including but not limited to acquiring __ _

17. No Assignment. The rights and duties of Broker under this Agreement may not be assigned or delegated in any manner, this Agreement being personal as to Broker. The issuance or assignment of

338

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.22 stock or partnership interests in Broker shall constitute a prohibited. assignment. Broker covenants and agrees that Broker will notify Corporation in writing immediately upon any change in the persons or percentage ownership of the shareholders or partners of Broker and that Corporation shall have the remedies for default upon any such change. The rights and duties of Corporation under this Agreement may be assigned. or delegated..

18. Entire Agreement. This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings between the parties relating to the subject matter herein. This Agreement may not be modified or amended except by a writing signed by the party against whom enforcement is sought.

19. Law. This Agreement shall be governed by the laws of the State of Florida.

20. Notices. All notices under this Agreement shall be sent to the following addresses, unless otherwise specified by the respective party in writing, and shall be deemed sufficient if delivered personally or by certified mail return receipt requested or by other means of delivery with proof of receipt or refusal:

To Corporation:

To Broker:

21. Miscellaneous. The descriptive paragraph headings used herein are for convenience in reference only and are not intended to have any effect whatsoever in determining rights or obligations of the parties. Time is of the essence of this Agreement. This Agreement is binding upon and shall inure to the benefit of the heirs, successors and assigns of the parties, except that this shall in no way allow Broker to assign this Agreement.

22. Joint and Several Liability. This Agreement is the joint and several obligation of Broker and of the officers, directors and shareholders of Broker if Broker is a corporation and of the partners of Broker if Broker is a partnership.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

Signed, sealed and delivered in the presence of:

CORPORATION:

By:

339

..


Title: Witnesses

BROKER:

Title: Witnesses

Ch. 20

Officers, Directors, Shareholders and Partners of Broker:

Witnesses

Witnesses

Witnesses

[ Ackrwwledgements ]

§ 20.23 Independent Contractor Agreement-Short Form AGREEMENT made as of the ___ day of __ _, 19_,

between ___ a Florida corporation, of ______ , Florida, hereinafter called "Company" and ___ of , Flori-da, hereinafter called "Contractor".

In consideration of their mutual promises made herein, and for other good and valuable consideration, the parties hereby agree as follows:

1. Scope of Work. The Company engages the Contractor to furnish the following services, and the Contractor agrees to furnish the following services:

2. Payment. The Company agrees to pay the Contractor for its services as follows, and·the Contractor agrees to accept such amounts as full payment for its services:

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3. Independent Contractor Relationship. The Contractor is an independent contractor and is not an employee, servant, agent, partner or joint venturer of the Company. The Company shall determine the services to be performed by the Contractor, but the Contractor shall determine the legal means by which it accomplishes the services specified by the Company. The Company is not responsible for withholding, and shall not withhold, FICA or taxes of any kind from any payments which it owes the Contractor. The Contractor is not entitled to receive any benefits which employees of the Company are entitled to receive and shall not be entitled to workers compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of its work for the Company.

4. Risk. The Contractor shall perform the services at its own risk. The Contractor assumes all responsibility for the condition of equipment and site of performance of services. The Contractor shall indemnify and hold harmless the Company from any claim, demand, loss, liability, damage or expense arising in any way from the Contractor's services.

5. Assignment. The Company may assign any or all of its rights and duties under this Agreement at any time and from time to time without the consent of the Contractor. The Contractor may not assign any of its rights or duties under this Agreement without the prior written consent of the Company.

6. Term. This Agreement is effective as of the date first above written and shall continue in effect until cancelled by either party upon written notice to the other party. ·

7. Law. This Agreement shall be governed and construed in accordance with Florida law.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

Company: Contractor:

__ _, a Florida Corporation _________ (SEAL)

By:

Title:

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§ 20.24 Subcontract Agreement

Ch. 20

AGREEMENT made between ---, a Florida corporation, here-inaner called "Subcontractor", and , hereinafter called "Con-tractor".

WHEREAS, Subcontractor is engaged in the business of __ _, and

WHEREAS, Contractor desires to contract services from Subcontractor;

NOW, THEREFORE, in consideration of their mutual promises made herein, the parties hereby agree as follows:

1. Services. Subcontractor shall provide such services to Contractor as are usually provided by Subcontractor in its business and as requested by Contractor for the project described below, hereinafter called the "Project":

Project Name:

Project Owner:

Project Location:

Contractor shall furnish duly-qualified persons to provide the services under this Agreement, which persons shall at all times be either employees or subcontractors of Subcontractor, and not employees of Contractor.

2. Payment. Contractor shall pay Subcontractor for its services provided from time to time under this Agreement on the basis of time spent by Subcontractor and Subcontractor's employees and subcontractors in providing the services. The amount paid shall be based on the rate of$, ___ per hour per person. Contractor shall not be liable to Subcontractor for overtime work (work by any one person in excess of forty hours in one week) unless Contractor expressly agrees to the specific overtime work, in which case the amount paid by Contractor to Subcontractor for the overtime work shall be based on the total rate of $--- per hour per person working overtime. Contractor shall not be liable to Subcontractor for per diem expenses of persons performing the services unless Contractor expressly agrees in writing to pay per diem expenses, in which case per diem expenses shall be paid to Subcontractor at the rate of $___ per hour of work per person working (excluding overtime), but not to exceed a maximum of $ ___ per day per person working that day. Subcontractor shall submit to Contractor a bill for its services under this Agreement not more often than once a week, and Contractor shall not be required to pay Subcontractor for its services more often than once a week. If payment is not made within two (2) days after receipt of a bill, the amount due shall accrue interest at the rate of 18% per annum and Subcontractor may stop performing services until paid in full.

342

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.24 3. Independent Contractor Relationship. The parties intend

that this Agreement creates an independent contractor relationship between them. Contractor is interested only in the results achieved by the services of the Subcontractor; the manner of legally achieving those results is the responsibility of the Subcontractor. Subcontractor is not an agent or employee of Contractor for any purpose. Contractor is not responsible for deducting, and shall not deduct, from payments to Subcontractor any amounts for withholding tax, FICA, insurance or other similar item relating to Subcontractor or Subcontractor's employees. Subcontractor shall be solely responsible for deducting and paying such items. Neither Subcontractor nor Subcontractor's employees shall be eligible or entitled to any of the benefits to which employees of Contractor may be entitled on the account of Contractor, such as workmen's compensation, unemployment compensation, insurance, paid vacations, paid holidays, pension, profit sharing, Social Security, and other benefits that may be available.

4. Term. This Agreement is effective as of the date stated below. This Agreement shall continue in force until either party cancels this Agreement upon thirty (30) days prior written notice to the other party.

5. Contractor's Responsibilities. a. The Contractor shall designate a representative who shall be

fully acquainted with the Project and has authority to issue and approve changes in the scope of the services, render decisions promptly, and furnish information expeditiously.

b. Contractor shall pay for any necessary approvals, licenses and charges required for performing the services.

c. Contractor shall cause its employees and other persons subject to Contractor's control to comply with all reasonable requests and directions of Subcontractor relating to safety precautions for the Project.

6. Assignment. This Agreement may not be assigned or delegated by either party without the written consent of the other party, except that Subcontractor may subcontract for performance of its services through others.

7. Law. This Agreement shall be construed and governed under Florida law.

IN WITNESS WHEREOF, the parties have executed this Agree-ment on this ___ day of __ _, 19_,

Subcontractor:

By:---------

Title:

Contractor: [Name J------------

By:

Title:

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§ 20.25 Agreement-Sales Representative AGREEMENT made between __ _, a Florida corporation, re-

ferred to in this Agreement as "---", and ___ of __ _, referred to in this Agreement as "Sales Rep".

For other good and valuable consideration, the parties hereby agree as follows:

1. Scope. ___ hereby engages Sales Rep, and Sales Rep hereby accepts such engagement, as a representative of ___ in the sale of certain products and services of ___ in accordance with the terms and conditions set forth in this Agreement. Sales Rep shall devote his or her full time (at least 40 hours a week) to providing services to ___ under this Agreement. The services provided by Sales Rep must meet the approval of ___ Sales Rep shall follow and abide by all policies, procedures, rules, regulations and instructions which are established or conveyed by __ _, orally or in writing, from time to time. Sales Rep is not authorized to purchase or order goods or services in ___ 's name without the prior written consent of __ _

2. Duties. Sales Rep shall have the following duties and responsibilities in addition to all others set forth in this Agreement:

a. The primary responsibility of Sales Rep is to sell and solicit the sale of ___ 's ___ (including ___ and ___ to banks, savings and loan associations, Realtors and others within the territory designated in this Agreement, except that Sales Rep shall not sell to those persons set forth in Paragraph 7 below.

b. Sales Rep shall also sell and solicit the sale of such other ___ products and advertising as ___ may specify from time to time, orally or in writing.

c. ___ shall establish a "book price" for every product and service to be sold by Sales Rep. Sales Rep shall sell all products and services only at the "book price", unless otherwise approved by ___ in writing. Sales Rep shall not give or offer to give any discounts on the price of any goods or services without the prior written consent of ___ Sales Rep shall not other-wise sell any goods or products at a price lower or higher than "book price" without the prior written consent of __ _

d. Sales Rep shall sell all goods and services as a representa-tive and agent of ___ and for the account of __ _, and not as a broker, dealer or distributor, and not for the account of anyone other than __ _

e. Sales Rep shall use only the sales contract and order forms which are approved by ___ in advance for the sales of its goods and services. Sales Rep shall not use any other form of order or contract, unless approved by ___ in writing in advance. Sales Rep shall follow and abide by all instructions, policies and proce-

344

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.25 dures established by ___ , orally or in writing, from time to time, for the completion, signing and processing of such contracts and orders, for the collection of down payments and other payments, for the processing of customers' copy, for the delivery of goods to customers and the collection of final payments from customers. ( ____ 's present policies require the collection of one-half of the full price of ___ with the order and the balance on the day of delivery, and the collection of the full price of other ___ goods upon delivery.) Sales Rep shall not sign any con-tract, order form or other document obligating ___ without the prior written consent of __ ~ Sales Rep shall submit all orders and contracts to an Officer of ___ for approval and signature.

f. Sales Rep shall be responsible for timely collecting all amounts due to ___ from customers serviced by Sales Rep and for immediately transmitting to ___ all amounts collected.

g. Sales Rep shall maintain for ___ a current and up-to-date file (on index cards or other media as specified by ___ )_ of all ___ customers and potential ___ customers in the territory serviced by Sales Rep. The file and all records contained in it shall be the property of ______ solely and shall be subject to the restrictions set forth in Paragraph 12 of this Agreement. The file shall contain at least the following information for each customer and potential customer, in addition to any other information requested by · date of each contact, company contacted, name of person contacted, details of their ___ usage, history and current status as a customer of ---, their attitude toward ___ 's ___ products and services, when they may need more ___ products or services.

h. Sales Rep shall provide weekly sales reports to __ _ and shall report such other information to ___ as ___ may from time to time request.

3. Territory. Sales Rep is assigned during the term of this Agreement, as set forth in Paragraph 6 below, to the territory consisting of the following Florida county or counties:

___ does not intend to assign other sales representatives to that territory during the term of this Agreement, except during a ______ or ___ campaign effort requiring additional sales representatives. ___ shall refer to the territory's sales representa-tives all ___ inquiries (coming to ___ •s home office) by letter or telephone from the territory.

4. Commissions. AB full payment for Sales Rep's services to ___ ___ shall pay Sales Rep a commission on each sale completed by Sales Rep during the term of this Agreement. Commis-

345


sions will be computed on the actual sales price paid by the customer and shall be based on the following schedule:

a. ___ percent ( ___ %) for the first order of __ _ sold to new customers.

b. ___ percent( ____ %) for ___ sold to existing customers, except ___ percent ( %) if Sales Rep sold the customer its very first order from __ _

c. ___ percent ( ___ %) for ---, and

d. ___ percent ( ___ %) for __ _

e. A fixed (non-percentage) commission of ___ Dollars ($ ___ ) for the first ___ ( ) ___ sold by Sales Rep each week, said commission to be in place of and not in addition to the usual ___ percent commission on such ___ This special commission is intended to be an opportunity for Sales Rep to earn cash commissions quickly on cash sales.

A commission on a sale shall not be due and payable to Sales Rep until and unless the sale is completed during the term of this Agreement. A sale is not "complete" until its full purchase price has been paid and all goods and services comprising the sale have been delivered. Commis-sions shall be paid at a ___ office in __ _, Florida, on Friday of each week based on the sales completed by noon on the Thursday of the week before (eight days before). ___ may pay Sales Rep advances on commissions, but such advances shall usually be paid only out of down payments or other amounts received by ___ from the custom-er to whom the commission relates; but in no event is a commission or advance earned by Sales Rep until and unless the sale is completed; and Sales Rep shall repay any advance to ___ upon request if the sale to which the advance relates is not completed within a certain time set by ___ Sales Rep is not entitled to receive for his or her services to ___ any salary, bonus, advance, or compensation other than the commissions described in this paragraph. Sales Rep acknowl-edges and agrees that ___ has not and does not make any guaran-tees as to the commissions which Sales Rep might expect to earn.

5. Expenses. Sales Rep shall be solely responsible for paying all expenses incurred by Sales Rep in performing this Agreement, including but not limited to travel, food, lodging, secretarial, long distance telephone and other expenses. ___ may provide Sales Rep with such stationery, business cards and other minor supplies and support from time to time as ___ may, in its sole discretion, decide to provide.

6. Term. The term of this Agreement shall commence the date this Agreement is signed by both parties and shall continue until this Agreement is cancelled by either party giving to the other party fifteen (15) days prior written notice of termination, with or without cause. If

346

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.25 Sales Rep is in breach, default or violation of this Agreement at termination, Sales Rep shall not be entitled to receive any further commissions, whether or not the sales for such commissions have been completed. If Sales Rep is not in breach, default or violation of any provision of this Agreement at termination, Sales Rep shall be entitled to receive commissions due in accordance with this Agreement.

7. Restrictions on Sales. Sales Rep shall not sell to house accounts, existing blanket contract customers, customers served by distributors who purchase from __ _, or others which ___ may specify from time to time. ___ shall, in its sole and absolute discretion, determine what constitutes house accounts, blanket contract customer accounts and other categories. ___ shall provide Sales Rep from time to time with a list of such customers to which Sales Rep may not sell. In addition, Sales Rep may not sell to any customer located outside of the territory set forth in Paragraph 3 above, without the prior written consent of ___ If a customer has locations in more than one territory, then the customer shall be deemed to be located in the territory in which its home office is located. Sales Rep shall not negotiate any blanket contract without the prior written approval and assistance of __ _

8. Minimum Performance Standard. Sales Rep shall maintain an average weekly gross sales volume of ___ of at least __ _ Dollars ($ ___ ) beginning thirty (30) days after the date of this Agreement and of at least ___ Dollars ($, ___ ) beginning ninety (90) days after the date of this Agreement. Failure to maintain this standard shall constitute a default of this Agreement by Sales Rep.

9. Default. If Sales Rep defaults in the performance of this Agreement or violates any of the terms or provisions of this Agreement or otherwise breaches this Agreement in any way, ___ shall not be restricted to any single remedy but shall instead be entitled to pursue all legal remedies concurrently. In addition to all other remedies, Sales Rep shall not be entitled to receive any commissions after default of this Agreement, whether or not the sales for such commissions have been completed. Any legal actions relating to this Agreement may be brought in ___ County, Florida.

10. Inventory and Samples. ___ shall furnish Sales Rep such inventory and samples as ___ deems sufficient from time to time. All inventory and samples so furnished shall remain the proper-ty of ___ and may not be sold or otherwise converted by Sales Rep without the prior written consent of___ Sales Rep shall keep all inventory and samples in good and saleable condition and shall safeguard all inventory and samples. Sales Rep shall account in writing to ___ for all inventory and samples monthly and also upon request. Sales Rep shall be responsible for all damage to inventory and samples and for shortages and shall pay ___ for such damage and shortages. Sales Rep shall not take inventory or samples from

347


___ 's plant, warehouse or offices on his or her own initiative, but shall request and receive such inventory and samples only from a ___ employee who is authorized to fill such request. Sales Rep shall sign receipts for all inventory and samples received. Sales Rep shall return all unsold inventory and all samples upon termination of this Agreement or earlier upon the request of __ _

11. Independent Contractor Relationship. Sales Rep is an independent contractor and is not an employee, servant, partner or joint venturer of ___ _ __ shall determine the services to be provided by Sales Rep, but Sales Rep shall determine the legal means by which it accomplishes the services in accordance with this Agree-ment. ___ is not responsible for withholding, and shall not with-hold or deduct from the commissions, FICA or taxes of any kind, unless such withholding becomes legally required. Sales Rep is not entitled to receive the benefits which employees of ___ are entitled to receive and shall not be entitled to workers compensation, unemployment compensation, medical insurance, life insurance, paid :vacations, paid holidays, pension, profit sharing, or Social Security on account of his or her services to __ _

12. Covenants of Sales Rep. Sales Rep covenants and agrees with ___ as follows, and Sales Rep acknowledges that __ _ would not be entering into this Agreement if Sales Rep had not made these covenants:

a. During the term of this Agreement and for a period of two (2) years immediately after termination of this Agreement, Sales Rep will not directly or indirectly own, manage, be employed by or engaged by, operate, control any other ___ business within the State of Florida or within ___ ( ) miles of any customer of ___ unless ___ gives its prior written consent.

b. During the term of this Agreement and for a period of two (2) years immediately after termination of this Agreement, Sales Rep will not directly or indirectly call upon or solicit any customer of ___ with the intention of diverting or attempting to divert such customer to another.

c. Sales Rep will not at any time, during or after the term of this Agreement, directly or indirectly divulge or otherwise disclose to anyone other than an employee of ___ the names or ad-dresses of customers or potential customers of __ _, any con-tents of files maintained by ___ or by Sales Rep for __ _, prices and pricing policies of ---, procedures and policies of __ _, or other information which is confidential or proprietary to __ _, unless ___ gives its prior written consent to such disclosure.

d. All books, records, notes, reports, copy, ___ advertis-ing, contracts, orders, drafts, accounts, documents and other infor-

348

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.25 mation or writings relating to ___ or its customers, employees, sales representatives, or agents, whether prepared by Sales Rep or otherwise coming into the possession of Sales Rep, is and shall remain the exclusive property of ___ and shall be returned to ___ upon demand.

e. Sales Rep shall report all violations of ___ 's copyrights and other proprietary rights in its ___ and other works imme-diately upon discovery of such violations by Sales Rep.

f. Sales Rep acknowledges that each of the foregoing matters is important and material to the business and success of __ _ and agrees that any breach of this paragraph is a material breach of this Agreement, from which Sales Rep may be enjoined and for which Sales Rep shall also pay to ___ all damages (including but not limited to compensatory, incidental, consequential, and punitive damages), which arise from the breach, together with interest, costs and ___ 's attorney fees.

13. Assignment. Sales Rep may not assign its rights or delegate its duties under this Agreement without the prior written consent of

___ 's rights and obligations under this Agreement may be assigned and delegated upon notice to Sales Rep.

14. Waiver. Waiver by ___ of any breach by Sales Rep shall not operate or be construed as a waiver of any subsequent breach by Sales Rep.

15. Law. This Agreement shall be construed and governed in accordance with Florida law.

16. Consent of --~ Wherever used herein, the phrases "consent of ___ " and "approval of ___ ,, shall mean the consent or approval by an Officer of ___ At the date of this Agreement, the only Officers of ___ are ___ and __ _

IN WITNESS WHEREOF, the parties have signed this Agreement this ___ day of __ _, 19_.


Witnesses

Witnesses

__ _, a Florida Corporation

By:

Title:

Sales Rep:

9 Fla.Legal Forms-Specialized Forms-13 349


§ 20.26 Agreement With Advertising Consultant AGREEMENT made this ___ day of __ _, 19_, between

---. a Florida corporation, doing business as "---", hereinafter called the "Company", and __ _, of __ _, Florida, hereinafter called the "Associate".

WHEREAS, Company operates as a separate division within its corporate structure an advertising, marketing, promotions and public relations business known as "--- ADVERTISING", hereinafter called the "Division"; and

WHEREAS, Associate is an independent contractor with experience in the advertising field and desires to provide services to Company for a fee;

NOW THEREFORE, in consideration of their mutual promises made herein, and for other good and valuable consideration, the parties hereby agree as follows:

1. Scope. Company hereby engages Associate, and Associate hereby accepts such engagement, as an associate in the Company's Division. The services to be performed by Associate shall be specifically determined by Company from time to time, but shall initially include the following: obtain advertising orders and accounts; work with accounts, typesetters, photographers, printers, media and others in placing advertising; provide the highest quality service to Company's accounts. Associate shall devote its full time to providing services to Company. The services provided by Associate must meet the approval of Company and shall be subject to Company's general right of inspection and supervision to assure its satisfaction. Associate shall follow and abide by all policies, rules and regulations established by Company from time to time. Associate shall not order any goods or services for Company, and shall not incur any expense or obligation to Company, without the prior consent of its President, __ _

2. Payment. As full payment for Associate's services under this Agreement, Company shall pay Associate on the last day of each calendar month during the term of this Agreement a commission equal to ___ percent (,--__ %) of the Net Profits of the Division for that calendar month. Payment of the commission shall not be in default unless it is not paid within fifteen days after the last day of the month. "Net Profits" means the gross income of the Division less the direct and indirect expenses of the Division, as determined by the Company. In determining Net Profits, the following shall apply:

(a) Net Profits shall be determined by the Company as of the last day of each calendar month.

(b) The goods, supplies, services, utilities, office space, equipment and other items furnished by the Company and used by the Division shall be expenses to the Division which the Division shall pay on the last day of each month to the Company's general account (or other

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Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.26 account designated by the Company) for that month. Those expenses shall be deducted from gross income of the Division in determining its Net Profits. Those expenses are agreed to be as follows:

(1) ___ Dollars ($ ___ ,) a month (prorated for partial months) from the effective date of this Agreement through ___ 19_,

(2) On or before ___ 19_, the Company shall determine whether the amount of monthly expenses to be reimbursed by the Division to the Company shall be increased or decreased, and such amount shall be applicable for the six (6) months after __ _, 19_; and the Company shall follow a similar procedure every six (6) months thereafter during the term of this Agreement.

(c) The payment of Associate's share of Net Profits shall not be deducted from Gross Income as an expense.

(d) Only income received during the month shall be considered income for that month in determining Net Profits. Income received after termination of this Agreement shall not be considered part of gross income.

(e) All expenses incurred during the month shall be deducted from gross income in determining Net Profits, even if such expenses are not paid during the month. Federal and state income taxes, insurance premiums, occupational taxes and other non-monthly expenses shall be estimated and accrued monthly as expenses for the purpose of determining Net Profits; provided however, that the Company may, at its option, adjust any estimates on the basis of better estimates or actual expenditures, and apply such adjustments in future months or carry such adjustments back to previous months.

(0 If expenses exceed income in any calendar month, the loss shall be carried forward for as many months as necessary to offset future profits.

(g) The Company shall have the exclusive right to determine which accounts it processes through its ___ Advertising Division and which accounts it processes through its publishing and other divisions. The Associate's commission on Net Profits shall be computed solely on the Net Profits of the ___ Advertising Division, and the determina-tion of those Net Profits by the Company shall be binding.

3. Independent Contractor Relationship. The parties intend that this Agreement create an independent contractor relationship between them. Company is interested only in the results achieved by the services of Associate; the manner of legally achieving those results is the responsibility of Associate. Associate is a professional person and is not an agent or employee of Company for any purpose. Company is not responsible for deducting from payments to Associate any amounts for withholding tax, FICA, insurance or other similar items

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relating to Associate. Associate shall be solely responsible for paying such items.

4. Covenants of Associate. Associate covenants to Company as follows:

(a) During the term of this Agreement and for a period of one (1) year immediately after termination of this Agreement, Associate will not directly or indirectly own, manage, be employed or engaged by, operate or control any other advertising, marketing, promotions or public relations business within the State of Florida or within one hundred (100) miles of any client of Company, unless Associate obtains the prior written consent of Company.

(b) Associate will not at any time, directly or indirectly, make known or divulge to any person, firm, corporation or other entity the names or addresses of any of the clients of Company, unless Associate obtains the prior written consent of Company.

(c) During the term of this Agreement and for a period of two (2) years immediately after termination of this Agreement, Associate will not directly or indirectly call upon, solicit, or otherwise attempt to divert clients of Company to any other person or entity.

(d) All books, records, notes, reports, copy, paste-ups, drafts, accounts, documents and other information and property relating to the Company, its Division, or its clients, whether prepared by Associate or otherwise coming into the possession of Associate, is and shall be the exclusive property of Company and shall be returned to Company upon demand at any time.

(e) These matters are important and material to the success of the Division and Company. Any breach of the provisions of this paragraph is a material breach of this Agreement, for which Associate may be enjoined and assessed damages. If Associate breaches this Agreement, Associate shall pay reasonable attorneys fees incurred by Company arising out of the breach.

5. Term. This Agreement commences as of __ _, 19_, and continues until terminated by either party upon written notice to the other party.

6. Assignment. Company may assign its rights and delegate its duties under this Agreement at any time and from time to time without consent of Associate. Associate may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of Company.

7. Law. This Agreement shall be construed and governed under the laws of Florida.

8. Waiver of Breach. The waiver by Company of the breach of any provision of this Agreement by Associate shall not operate or be construed as a waiver of any subsequent breach by Associate.

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Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.100 IN WITNESS WHEREOF, the parties hereto have executed this

Agreement the day and year first above written.


Witnesses

Witnesses

COMPANY:

By:---------__ _, President

(Corporate Seal)

ASSOCIATE:

________ (SEAL)

§§ 20.27-20.99 are reserved for supplementary material.

C. AGREEMENTS RESTRICTING CONDUCT

§ 20.100 Agreements (Covenants) Not to Compete

A. Sellers Agreements Not to Compete (Fi.rst Alternative) The seller agrees not to ___ within the

radius of ___ miles from the city of ___ for a period of five (5) years from the date hereof.

(Second Alternative) The parties recognize that the buyer, in acquiring and purchasing the business, is acquiring and taking over the good will connected with such trade and business. In order to protect the purchase of the property and business and the good will thereof, it is agreed that the sellers will not, individually or collectively or in conjunction with others, for a period of ___ years, engage in the ___ business, either directly or indirectly in the city of ___ or within a radius of ___ miles. The seller also agrees that in the event of a breach of this covenant, the buyer may protect his property rights in the good will of the business by injunction or otherwise, and that the seller will not individually, collectively or in conjunction with others, directly or indirectly, within said period of time, use or simulate the name of the business or any of its products, trademarks or trade names used by the business which is the subject of this agreement.

(Third Alternative) The ___ company, in order to protect the good will hereby sold or transferred, and as a material inducement to the buyer to purchase said property and business, covenants and agrees that for a period of t.en (10) years from the date hereof they will not engage, either directly or indirectly as principal or on their own account, either solely or jointly with others, or as stock.holders in any

353


corporation or joint stock association, engage in the business of selling ___ or any such goods or merchandise at ___ in the state of ___ or any place within a radius of 10 miles thereof.

B. Agreements by Contractors Not to Compete

(First Alternative) The Contractor shall not within ___ years after the termination of the contract, directly or indirectly, as principal, agent, servant or otherwise, carry on or be concerned or interested in any ___ business within ___ miles from (location), or directly or indirectly solicit or endeavor to obtain as a customer any person or corporation who was a customer of ___ during such employment.

(Second Alternative)

Now, Therefore, It Is Agreed between the parties as follows:

1. During his contract with ___ and for a period of __ _ ( ____ ) [months/years] after termination of the contract, the Contrac-tor will not directly or indirectly own, manage, operate, control, participate in, or be connected in any manner with the ownership, management, operation, or control of any business similar to the type of business conducted by ___ at the time of termination.

2. This agreement shall be binding on the Contractor only in the areas of his past, present and future contracts with --~

(Third Alternative)

Now, Therefore, It Is Agreed between parties as follows:

1. During the period of contract with the Company and for a period of twelve (12) months after termination of the contract, the Contractor will not participate directly or indirectly, personally or as the agent or employee of another, in the ownership, management, operation or control of any business similar to the type of business conducted by the Company at the time of the termination of this agreement.

2. This agreement shall be binding on the Contractor only in the areas of his services during the twelve months preceding termination of contract.

(Fourth Alternative ) The Company has developed and continues to develop and use commercially valuable proprietary technical and nontechnical information which is vital to the success of the Company's business. Contractor is engaged by the Company in a capacity in which he may become acquainted with such information and may in fact contribute thereto either by inventions, discoveries, designs, improvements or otherwise. In order to guard the legitimate interest of the Company, it is necessary for the Company to protect certain information either by patents or by holding such information secret or confidential.

354

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.101 Therefore, in consideration of and as part of the terms of contract

of the Contractors by the Company, it is the Company's policy to require each of its contractors to comply with the following policy:

For a period of twelve months following the termination of the contract with the Company, he shall not directly or indirectly solicit any customer of the Company for whom he performed services while engaged by the Company or which he solicited on behalf of the Company.

(Fifth Alternative) The Company has maintained and continues to maintain and use commercially valuable proprietary information which is vital to the success of the Company's business, including, by way of illustration and without limitations, the names and addresses of the customers of the Company and the marketing needs, habits and strategies of each of the customers of the Company. The Contractor is engaged by the Company in a capacity in which he will become acquainted with all or part of this information. In order to guard the legitimate interest of the Company in this information, it is necessary for the Company to protect this information by holding it confidential.

Therefore, the Contractor agrees that for a period of twelve months following the termination of the Contractor's engagement with the Company, he shall not directly or indirectly solicit any customer of the Company for whom he performed services while engaged by the Company or which he solicited on behalf of the Company.

(Sixth Alternative) The Contractor shall not for a period of ___ years after leaving engagement with the Company, solicit or accept orders for goods without the written consent of the Company, either personally or on behalf of any other person, firm, or corporation, in any city or town which the Contractor visited as a salesperson, or from any person or corporation who during such employment shall have been a customer of the Company.

(Seventh Alternative ) The Contractor shall not during the period of engagement with the Company participate directly or indirectly, personally or as the agent or employee of another, in the ownership, management, operation or control of any business which sells or does business with the Company or its subsidiaries.

§ 20.101 Restrictive Stipulations Regarding Confidential Information

(First Alternative ) The Contractor agrees that any information received by the Contractor during his or her engagement, which concerns the personal, financial or other affairs of the Company will be treated by the Contractor in full confidence and will not be revealed to any other persons, firms or organizations.

(Second Alternative) The Contractor agrees to keep secret and not disclose to others nor make personal use of any confidential informa-

355


tion concerning the Company's business, which may have become known to the Contractor during the course of the Contractor's engagement with the Company.

(Third Alternative ) a. The Contractor agrees that the names of customers are and

shall remain the exclusive property of the Company, are confidential and are of great value to the Company. The Contractor further agrees that all other information used by the Contractor in soliciting customers, including, but not by way of limitation, pricing lists, sales invoices and the names of customers' personnel are trade secrets, are confidential and are the valuable property of the Company, and that any such information developed by the Contractor during the course of such engagement is and shall remain the property of the Company.

b. The Contractor recognizes and acknowledges that certain services which the Company performs will be confidential, that the good will of the Company depends, among other things, on keeping such services and information confidential, and that unauthorized disclosure of the same would irreparably damage the Company.

c. Further, the Contractor recognizes and acknowledges that the business matters and affairs of the Company, and the methods of business operations of the Company, are valuable and confidential and that unauthorized disclosure of the same would irreparably damage the Company.

d. The Contractor therefore acknowledges that the Company's remedy in the form of monetary damages for any breach by the Contractor of any of the provisions of this section may be inadequate and that, in addition to any remedy for such breach, the Company shall be entitled to institute and maintain any appropriate proceeding or proceedings including an action for specific performance and/or injunction.

(Fourth Alternative) The Contractor further agrees that during the period of one year immediately after the termination of his or her contract with the Company, the Contractor will not either directly or indirectly make known or divulge the names and addresses of any of the customers or patrons of the Company to any person, firm or

. corporation. The Contractor also agrees that after termination of contract with the Company, the Contractor will not, either directly or indirectly call upon, solicit, divert, or take away, or attempt to solicit, divert, or take away any of the customers, business or patrons, of the Company, upon whom the Contractor called or solicited or catered or became acquainted with while employed with the Company.

(Fifth Alternative) The Contractor further agrees not to communicate during the continuance of this agreement, or at any time subsequently, any information relating to the secrets of the traveling, advertising, and canvassing departments, nor any knowledge or secrets

356

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS § 20.101 which he or she then had or might from time-to-time acquire pertaining to the other departments of the business of the Company, to any person not employed by the Company, except as requested in writing by the Company. In case of violation of this agreement, the Contractor agrees to pay the Company or its successors the sum of$, ___ as liquidated damages, but such payment is not to release the Contractor from the obligations undertaken, or from liability for further breach thereof.

(Sixth Alternative) The Contractor acknowledges that prior to his or her engagement by the Company, that he or she had no knowledge of the formulas, processes, or methods of manufacture utilized by the Company, and that such information is of a confidential secret character and is vital to the continued success of the Company's business. The Contractor further acknowledges that he or she is engaged by the Company in a capacity in which he or she will become acquainted with all or part of such information. In order to guard the legitimate interest of the Company in such information, it is necessary for the Company to protect such information by holding it secret and confidential.

Therefore, the Contractor agrees not to divulge to anyone, either during or after the termination of his or her engagement, any information concerning such formulas, processes, or methods of manufacture or other secret or confidential information of the Company. Upon termination of his or her engagement, the Contractor agrees forthwith to deliver to the Company all notebooks and other data relating to research or experiments conducted by him or her or relating to the products, formulas, processes or methods of manufacturer of the Company.

(Seventh Alternative) The Contractor agrees not to divulge to any other person, firm or corporation, during the period of engagement by the Company or at any time thereafter, the names of the Company's customers or any other trade secrets which the Company may impart to the Contractor or which may become known to the Contractor, and that upon termination of engagement, the Contractor agrees to deliver to the Company all lists of customers, samples, price lists and any other property belonging to the Company or relating to the business of the Company.

(Eighth Alternative ) The Contractor agrees that during the period of engagement by the Company, or any time thereafter, the Contractor will not divulge to any other person, firm or corporation, the names of any customers of the Company or any of the trade secrets which the Company may impart to the Contractor, or of which the Contractor may otherwise become aware. The Contractor also agrees that upon termination of engagement the Contractor will deliver to the Company all lists of customers, samples, price lists and all other property belonging to the Company or relating to the Company's business. The Contractor will treat as confidential any information obtained by the

357


Contractor concerning customers of the Company or it's business, products, techniques, methods, systems, price books, plans or policies; and will not during the period of employment or at any time thereafter disclose such information in whole or part to any person, firm or corporation for any reason or purpose whatsoever, or use such information in any way or in any capacity other than as a Contractor of the Company in furtherance of its interests. Upon the termination or cessation of engagement or sooner if it is required by the Company, the Contractor will forthwith deliver to the Company, any and all literature, documents, data, information, order forms, price lists, memorandum, correspondence, customer and prospective customer lists, customer's orders, records and cards acquired or coming to the knowledge and custody of the Contractor in connection with the Contractor's activities as a Contractor of the Company, and all machines, parts, equipment and other materials received by the Contractor from the Company or from any of its customers in connection with such activities.

(Ninth Alternatiue) The Contractor acknowledges that the Company's operating and marketing methods, prepublication writings, customer and supplier lists, press schedules, discount systems, computer and financial records are valuable and unique assets of the Company, and covenants and agrees not to disclose any confidential information relating to those items to anyone for any reason whatsoever during his or her employment and thereafter, or use such confidential information for his or her personal advantage or that of any third party.

§ 20.102 Restrictive Agreement tor

With Independent Contrac-

AGREEMENT made between ___ a Florida corporation, here-inafter called the "Corporation", and (name) , of (address) hereinafter called the "Contractor".

WHEREAS, Contractor is engaged as an agent of the Corporation; and

WHEREAS, the parties desire that the Contractor enter into covenants with the Corporation as allowed by Section 542.33(2), Florida Statutes Annotated;

NOW THEREFORE, in consideration of Corporation engaging Contractor at this time, which engagement Corporation may terminate at will, Contractor hereby agrees as follows:

1. Not Carry On Similar Business. As long as Contractor is an agent of Corporation, and also for the period of two (2) years after termination of engagement, Contractor will not directly or indirectly own, manage, be employed by, engage in, carry on or be connected in any other manner with any business in the State of Florida engaged in

358

Ch. 20 INDEPENDENT CONTRACTOR AGREEMENTS§ 20.102 or any other business similar to the type of business conducted by the Corporation at that time.

2. No Disclosure of Customers. Contractor will not at any time, either during engagement or after engagement terminates, directly or indirectly make known or divulge to any person, firm, or corporation the names or addresses of any of the customers of the Corporation.

3. Not Solicit Customers. Contractor will not, during the period of two (2) years after termination of engagement, directly or indirectly, either for himself or for any other person, firm, or corporation, call upon, solicit, divert, or take away, or attempt to solicit, divert, or take away, any of the customers of the Corporation.

4. Not Disclose Information. Contractor will not at any time, in any fashion, form, or manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm, or corporation in any manner whatsoever any information of any kind, nature, or description concerning any matters affecting or relating to the business of the Corporation, including, but not limited to, the names of any of its customers or prospective customers or any other information concerning the business of the Corporation, its manner of operation, its plans, or any other data of any kind, nature, or description, without regard to whether any or all of the foregoing matters would be deemed confidential, material, or important; provided however, that Contractor may disclose such information to a customer of the Corporation in the ordinary course of business and may disclose such information to an employee of the Corporation in the ordinary course of working for the Corporation.

5. Records Belong to Corporation. All books, records, files, forms, reports, accounts and documents relating in any manner to the Corporation's business or customers, whether prepared by Contractor or anyone else, shall be the exclusive property of the Corporation and shall be returned immediately to the Corporation upon termination of engagement or upon the Corporation's request at any time.

6. Breach. The parties hereby stipulate that each of the foregoing matters are important, material, and confidential, and gravely affect the effective and successful conduct of the business of the Corporation and affect its reputation and goodwill, and that any breach of the terms of this Agreement is a material breach of this Agreement, from which Contractor may be enjoined and for which the Contractor shall also pay to the Corporation all damages (including but not limited to compensatory, incidental, consequential and lost profits damages), which arise from the breach, together with interest, costs and attorneys fees to collect such damages. Any lawsuit for breach may be brought in ___ County, Florida, which shall be a proper venue.

7. No Waiver of Breach. Corporation may waive a provision of this Agreement only in a writing signed by any two officers of Corpora-

359


tion. The waiver by the Corporation of a breach by Contractor of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by the Contractor.

8. Assignment. The rights and obligations of the Corporation under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Corporation. Contractor shall not assign his rights or obligations under this Agreement.

IN WITNESS WHEREOF, the parties have executed this .Agree-ment as of the ___ day of __ _, 19_.

Witnesses

Witnesses

CONTRACTOR:

_________ (SEAL)

CORPORATION: __ _, a Florida Corporation

By:

Title:

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Documents

INDEPENDENT CONTRACTOR AGREEMENTS