INDEPENDENT CONTRACTOR AGREEMENT

THIS INDEPENDENT CONTRACTOR AGREEMENT (the “Agreement”) entered into this __day of _______, 20___ (the “Effective Date”), by and between ALAKAZAM TRAVEL & CRUISE, INC., an Ohio corporation, whose principal address is 1460 Meadowlawn Drive Macedonia, OH 44056 (the “Company”), and ________________, whose address is ____________________________________________ (“Independent Contractor”).

Independent Contractor

First Name *

Last Name *

Effective Date * +

Street Address *

Address Line 2

City *

State *

Zip Code *

RECITALS:

A.        The Company is a full-service travel agency (the “Company’s Business”).

B.        Independent Contractor desires to perform the duties of a travel agent (the “Services”).

C.        The Company desires to engage Independent Contractor to perform the Services as an independent contractor on the terms and conditions set forth in this Agreement.

D.        Independent Contractor has indicated to the Company a desire and willingness to undertake an engagement as an Independent Contractor for the Company upon the terms and conditions set forth below.

ACCORDINGLY, in consideration of the foregoing premises and the mutual covenants, promises and representations contained herein, the parties hereby agree as follows:

1.         Engagement. The Company does hereby engage Independent Contractor, and Independent Contractor does hereby accept the engagement, to provide the Services to the Company, in accordance with and subject to the terms and conditions set forth in this Agreement.

2.         Duties. Independent Contractor’s duties hereunder shall be to act as an independent travel agent under the Company’s umbrella and to otherwise independently perform the Services as set by the Company from time-to-time and on such terms and conditions as set forth in this Agreement. Independent Contractor will conduct business under the Company’s name, and shall be covered under the Company’s Errors and Omissions Policy. During the Term, as defined herein, the Company agrees to provide coverage for Independent Contractor under its Errors and Omissions Policy and to comply with all statutory and regulatory requirements in relation to operations of a travel insurance agency.

3.         Term. Unless otherwise cancelled or terminated pursuant to the terms hereof, the term of this Agreement shall be a period from the Effective Date through the first anniversary of the Effective Date (the “Initial Term”). The Initial Term shall automatically be renewed on an annual basis for an additional one year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party within sixty (60) days of the end of the Term provides written notice to the other party of its intent to terminate this Agreement.

4.         Independent Contractor.

(a)        The parties mutually acknowledge that Independent Contractor is not an employee of the Company for any purpose whatsoever, but is and shall be at all times an independent contractor. The Company shall not have control over Independent Contractor as to the location of Independent Contractor’s place of business, the employment of his or her personnel, or the manner or means of his or her performance of his or her duties and responsibilities hereunder (except as specifically provided in this Agreement).

(b)       As an independent contractor, all expenses for the operation of Independent Contractor’s activities, including, without limitation, insurance, employees (including the withholding and payment of all applicable taxes with respect to employees), office rent, supplies, telephone, email accounts, agency licenses and taxes, all traveling expenses, etc. shall be borne by Independent Contractor except as may otherwise be expressly provided pursuant to this Agreement.

(c)        Independent Contractor is not authorized to incur any expenses in the name of the Company, and Independent Contractor shall bear all costs and expenses related to providing the Services.

(d)       Independent Contractor acknowledges that he or she remains responsible for all personal injury, property damage and other liability which may arise as a result of his or her conduct, to the fullest extent permitted by Ohio law, and that Independent Contractor understands that the Company has not assumed any liability or other responsibility for damages which may be caused by Independent Contractor.

5. Fees. [SELECT ONE OF THE BELOW OPTIONS] *

(a) Independent Contractor shall pay the Company ninety-nine ($99.00) on the Effective Date and thereafter shall pay the Company Ninety-Nine ($99.00) on each anniversary of the Effective Date.

(b) Independent Contractor shall pay the Company ninety-nine ($99.00) on the Effective Date. Commencing on the first (1st) day of the second month after the Effective Date, and continuing on the first (1st) day of each month thereafter, Independent Contractor shall pay the Company a monthly fee of thirty dollars ($30.00).

6. Commissions [SELECT ONE OF THE BELOW OPTIONS] *

(a) If Independent Contractor selects the option in Section 5(a) above, the Company shall pay Independent Contractor Fifty Percent (50%) of the commissions and service charges received by the Company resulting from the work of Independent Contractor from the work of Independent Contractor (“Receivables”) during the term of this Agreement.

(b) If Independent Contractor selects the option in Section 5(b) above, the Company shall pay Independent Contractor a percentage of the commissions and service charges received by the Company resulting from the work of Independent Contractor (“Receivables”) during the year beginning on the Effective Date or the anniversary of the Effective Date and ending on the next anniversary of the Effective Date (the “Anniversary Year”). The percentage paid will be as follows: (i) Seventy Percent (70%) of all Receivables before the total Receivables obtained by the Company during the Anniversary Year is over Five Thousand Dollars ($5,000) (the “Threshold”); and (ii) Ninety Five Percent (95%) of all Receivables after the Threshold and until the end of the Anniversary Year. By way of clarification, the Threshold shall reset on each Anniversary Year, and the commissions shall be 70% on each new Anniversary Year until the Threshold is met for that Anniversary Year.

(c) The Company will pay Independent Contractor all payments owed on a monthly basis. Independent Contractor acknowledges and agrees that he or she is not entitled to any benefits from the Company, (including but not limited to health insurance, 401k, vacation, sick pay or paid time off).

(d) The Company shall not withhold or pay over on behalf of Independent Contractor any amounts relating to federal, state or local income taxes, unemployment compensation, workers compensation, social security or other taxes or assessments. The Company will file and issue to Independent Contractor a copy of Form 1099 reporting the compensation received by Independent Contractor pursuant to this Agreement. Independent Contractor acknowledges that he or she shall be solely responsible for the reporting and payment of all federal, state and local income taxes, social security taxes, all federal and state self-employment taxes, and other governmental obligations resulting from the receipt of compensation under this Agreement. Independent Contractor hereby agrees to indemnify and save harmless the Company from any liability for any taxes, penalties or interest that may be assessed by any taxing authority with respect to compensation received by Independent Contractor under this Agreement.

7. Covenants of Independent Contractor. Independent Contractor covenants and agrees as follows:

(a) Non-Solicitation. Independent Contractor agrees that during the Term of this Agreement, he or she will not, directly or indirectly, divert or take away, solicit or contact any of the Company’s Customers (defined herein), potential customers, other independent contractors or potential contractors; provided that Independent Contract shall contact customers and other persons for purposes directly related to his or her performance of the Services during the term of this Agreement. For purposes of this Agreement, the term “Customer” shall mean any person or other entity that has purchased goods or services from the Company in the preceding twenty-four months and those persons or other entities that the Company is actively pursuing for purposes of the Company’s Business.

(b) Confidentiality. During the course of performing the Services, Independent Contractor may have access to the Confidential Information, as defined below. Independent Contractor agrees to maintain the Confidential Information in confidence during the term and after termination of this Agreement, and not disclose or permit access by any third party to any such Confidential Information, except to the extent disclosure is expressly permitted by Company. The foregoing obligations shall not extend to any information which Independent Contractor can establish (a) was, at the time of disclosure, generally, available to the public through no fault of Independent Contractor, (b) was in Independent Contractor’s possession on the Effective Date and was not obtained from Company, (c) was lawfully received from a third party who rightfully acquired it and did not obtain it in violation of any confidentiality agreement, or (d) was required to be disclosed by a court or other governmental authority and, if permitted by law, reasonable notice was given to Company. The obligations set forth in this Paragraph shall survive the termination of this Agreement.

For the purposes of this Agreement, “Confidential Information” shall be defined as all information directly or indirectly disclosed to Independent Contractor as a consequence of his relationship with the Company (or its affiliates) or the Company’s (or its affiliates’) clients and/or vendors, which information is not generally known to the public or competitors of the Company (or of its affiliates) or to the Company’s (and its affiliates’) clients and vendors, and which shall include, but shall not be limited to unique and proprietary methods of coaching, training and instruction, methods of operation, methods of calculation for pricing, sales information, employment information, tax records, personnel history, accounting procedures, object code and source code of computer programs, methods and manners of programming, financial information, employee compensation or policies, future plans, and all other information and knowledge in whatever form used in management, marketing, finance, operations in relation to the Services or otherwise.

(c)        Non-Competition. Independent Contractor expressly covenants and agrees that during the Term Independent Contractor will not him or herself, or on behalf of any other person, firm, partnership or corporation without the prior written consent of Company (which may be withheld or conditioned in Company’s sole discretion), anywhere within the United States either as an individual for Independent Contractor’s own account, or as a partner, joint venturer, employee, agent or independent contractor for any other entity, or as an officer, director, manager, shareholder or member of a corporation (if a public corporation, then owning more than 1% of the issued and outstanding stock of such corporation), trustee of a trust, member or manager of a limited liability company or in any other manner whatsoever, engage or participate in or provide services to any business that, directly or indirectly, sells, supplies or provides products or services that are similar to, compete with or are substitutes for, in whole or in part, any of the services or products being created, developed, or marketed by the Company during the Term or otherwise competes with the business of Company as it exists on the date of expiration or termination of this Agreement (in each case, a “Competitive Business”).

(d)       Remedies, Injunctive Relief; Tolling. Independent Contractor acknowledges and understands that the Confidential Information and relationships with its clients and providers of professional services are unique assets of the Company. Independent Contractor acknowledges that the Company (and its affiliates) would suffer material and irreparable damage if Independent Contractor violates the provisions of Section 6 of this Agreement. In the event of any breach or threatened breach by Independent Contractor of any of the provisions of Section 6, the Company (and/or its affiliates) shall be entitled to seek, in addition to any other remedies available to it, at the Company’s sole cost, an immediate injunction to restrain the violation of any or all such provisions by Independent Contractor. In the event of an actual or threatened breach of Section 6, the prevailing party shall be entitled to reimbursement for all attorneys’ fees in addition to any other relief to which that party may be entitled. If any provision of Section 6 shall be found by a court of competent jurisdiction to be invalid or unenforceable as against public policy, such court shall exercise its discretion in reforming such provision so that Independent Contractor shall be subject to non-disclosure, non-competition and noninterference covenants that are reasonable under the circumstances and enforceable by the Company (and/or its affiliates). Independent Contractor hereby waives any claim or defense that he may otherwise have that there is an adequate remedy of law. Independent Contractor acknowledges that the provisions of Section 6 are supported by adequate and sufficient consideration.

            The existence of any claim or cause of action of Independent Contractor against the Company, whether predicated on the Agreement or otherwise, shall not constitute a defense to the enforcement by the Company (and/or its affiliates) of the covenants contained in 6. The covenants contained in said Section shall survive any termination of Independent Contractor’s services, whether such termination shall be by the Company or Independent Contractor, whether voluntary or involuntary, whether for cause or without cause, and whether by reason of the expiration of this or any other agreement or arrangement (or any extensions thereof) with the Company.

7.         Termination. Upon the expiration of this Agreement, or its termination for any reason: (i) Independent Contractor shall immediately thereupon cease and desist from acting on behalf of the Company in any manner whatsoever; (ii) Independent Contractor shall return to the Company any documents, forms, written information, or other data provided by the Company to Independent Contractor during the course and operation of this Agreement, including both Confidential Information and information which is not confidential; and (iii) the termination shall not affect any financial obligations of either party to the other with respect to obligations incurred prior to the date of termination.

8.         Assignment. This Agreement is a personal services contract and it is expressly agreed that the rights and interests of Independent Contractor and the Company hereunder may not be sold, transferred, assigned, pledged or hypothecated; provided, however, that the Company may assign its rights and obligations hereunder (i) to its parent company, to a wholly owned subsidiary or to an affiliate of the Company, whether presently existing or formed after the date hereof, (ii) by operation of law in connection with a merger, consolidation or similar transaction involving the Company, and (iii) to the buyer in connection with a sale of all or substantially all of the assets of the Company.

9.         Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their heirs, agents and successors.

10.       Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

11.       Remedies Cumulative; No Waiver. All remedies specified herein or otherwise available shall be cumulative and in addition to any and every other remedy provided hereunder or now or hereafter available. No waiver or failure (intentional or unintentional) to act with respect to any breach or default hereunder shall be deemed to be a waiver with respect to any subsequent breach or default, whether of a similar or different nature.

12.       Notices. All notices, requests, demands, applications, services of process, and other communications which are required to be or may be given under this Agreement shall be deemed to have been duly given if sent by facsimile transmission, or personally delivered, or mailed via regular US Mail, to the parties hereto at the address set forth in the first paragraph of this Agreement, or to such other address as a party shall furnish to the other by notice given in accordance with this section.

13.       Governing Law. This Agreement and all provisions hereunder shall be governed by and construed in accordance with the substantive law of the State of Ohio and shall, for all purposes, be deemed to have been entered into in the State of Ohio. The parties hereby consent to the jurisdiction of any state or federal court located in Cuyahoga County, Ohio, for purposes of the enforcement of this Agreement and waives personal service and all process. Each party waives any objection to venue of any action instituted under this Agreement.

14.       Counterparts. This Agreement may be executed by the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. The execution of counterparts shall not be deemed to constitute delivery of this Agreement by a party until the other party has also executed and delivered his/her/its counterparts.

15.       Amendment. This Agreement may not be changed orally, but may be amended, superseded, cancelled or modified, and the terms hereof may be waived, only by an instrument in writing signed by each of the parties, or, in the case of a waiver, signed by the party against whom enforcement of such waiver is being sought.

16.       Entire Agreement. This Agreement embodies the entire agreement and understanding between the Company and Independent Contractor with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect thereof.

17.       Invoicing. Independent Contractor acknowledges all sales must be invoiced under our invoicing program. Training will be provided on using the invoicing program. Failure to invoice will result in delayed commission processing to Independent Contractor.

IN WITNESS WHEREOF, the parties have hereunto executed this Agreement on the date and year first set forth above.

I agree to all of these terms and conditions.

First Name *

Last Name *

* +

clear

ALAKAZAM TRAVEL & CRUISE, INC.

Janet M. Hornik, President

Report abuse