THIS INDEPENDENT CONTRACTOR AGREEMENT (the "Agreement") is entered into effective as of the date provided below (the "Effective Date"), but in no event later than April 25, 2018, by and between you, an independent contractor (the "Contractor") and Desert Hearts, LLC (the "Company").
1. Term of Agreement. The term of this Agreement (the "Term") shall begin on April 25, 2018 and shall continue until May 1, 2018.
2. Services. During the Term, the Contractor agrees to perform for the Company the services specified in Exhibit A hereto (the "Services").
3. Status of Contractor.
(a) Independent Contractor. The Contractor enters into this Agreement as, and shall remain while this Agreement is in effect, an independent contractor. The Contractor agrees that he is not and shall not become an employee, be in joint venture with, or partner of the Company while this Agreement is in effect unless otherwise agreed to in writing. The Contractor recognizes that it is the express intention of the parties to this Agreement that he work as an independent contractor, and not an employee, in a joint venture, or partner of the Company. Contractor and Company shall mutually determine the time(s) and place(s) in which Contractor renders services. Nothing in this Agreement shall be interpreted or construed as creating or establishing an employment relationship between the Company and the Contractor.
(b) No Entitlement to Employee Benefits. The Contractor agrees that Contractor is not entitled to the rights or benefits afforded to the Company's employees, including, without limitation, participation in the Company's stock plans (except as specifically provided in this Agreement, benefit plans, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, or any other employment benefits, notwithstanding a determination by a federal, state, or local government agency (such as the Internal Revenue Service) or a court that it, or anyone performing services on the Contractor's behalf, is deemed to be an employee of the Company for other purposes. The Contractor agrees that she is responsible for providing, at the Contractor's own expense, disability, unemployment, medical and other insurance, workers' compensation, training permits, and licenses for itself and for the Contractor's employees, if any. For the avoidance of doubt, Contractor shall be responsible for their own medical expense(s) in the event that Contractor is injured in the course of performing Services for Company during the Term.
(c) No Authority. The Contractor recognizes that he or she shall have no authority to act on or enter into any contract or understanding, incur any liability or make any representation on behalf of the Company.
(d) Taxes and Statutory Obligations. The Contractor acknowledges that she shall be solely responsible for the payment of all taxes and other statutory obligations that are imposed upon her as a self employed person.
4. Certain Covenants.
(a) Non-disparagement. The Contractor shall not make any disparaging remarks about the Company, or any parent or affiliated company, or any of their respective members, officers, directors, or employees. Contractor further shall not employ or invite any third parties on behalf of Contractor who make or have made disparaging remarks about the Company.
i. Contractor shall provide Company with a list of any and all invitees or guests of Contractor no later than April 11, 2018.
ii. Company reserves the right to refuse admission to any invitee or guest that has disparaged Company.
(b) No Subcontracting. This contract is for the personal services of the Contractor, who shall not subcontract any of the Services or obligations imposed upon him by this agreement without the Company's prior written consent.
(c) Risk Protection. Contractor agrees that Contractor shall not, directly or indirectly, market, sell, distribute, or license any product or service that competes with the business of the Company during the Term hereof. Contractor further warrants and represents that Contractor shall not, directly or indirectly, market, sell, distribute or otherwise provide services or products that require a permit and/or license issued by the city or state (individually and collectively referred to as “Required Authorization(s)”) without first obtaining the Required Authorization(s)
(d) The Contractor warrants and understands that the Contractor will encounter certain risks and hazards, including but not limited to those described in the attached Exhibit B: Assumption of Risk. Contractor assumes all risk(s) and shall be fully responsible for any damage(s) resulting from the manifestation of any such risk(s) or hazard(s), including but not limited to any injury or damage sustained by Contractor.
(e) Contractor hereby agrees to obey all laws, state and Federal. Company reserves the right to eject Contractor from Company’s premises if Contractor is in violation of any law(s).
(f) Contractor warrants and represents that any e-mail address(es) supplied by Contractor in connection with the application and other confirmation documents is owned and controlled by Contractor. Contractor hereby agrees that any e-mail(s) sent to Contractor shall satisfy notice to Contractor and shall be deemed received by Contractor upon sending by Company. Contractor further warrants and represents that any communications to or from the e-mail address(es) provided by Contractor shall be deemed to be communications to or from the Contractor whether or not such communication was actually received by or authored by Contractor.
5. Termination of Agreement. This Agreement shall terminate automatically on the occurrence of any of the following events:
(a) Bankruptcy or insolvency of either party. (b) The Contractor's death. (d) Assignment of this Agreement by the Contractor without the written consent of the Company. (e) The expiration of the Term. (f) Notwithstanding any other provision of this Agreement, either party may terminate the Term and this Agreement at any time for any or no reason, with or without cause. Termination of this Agreement shall not affect the obligations of either party arising out of events or circumstances occurring prior to such termination.
6. Miscellaneous Provisions.
(a) Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. The parties submit to the sole and exclusive jurisdiction and venue of federal and state courts located in the County of Los Angeles, State of California.
(b) Entire Agreement; Enforcement of Rights. This Agreement (with all of the exhibits, attachments and appendices attached hereto) sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.
(c) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(d) Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
(e) Notices. Any notice, consent, demand or other communication to be delivered to a party hereunder shall be deemed delivered and received when made in writing and transmitted to the applicable party either by receipted courier service, or by the United States Postal Service, first class registered or certified mail, postage prepaid, return receipt requested, or by electronic facsimile transmission ("Fax"), at the address or addresses indicated for such party below (and/or to such other address as such Party may from time to time by written notice designate to the other):
(f) Notice and shall be deemed delivered and received: (A) if delivery or Fax transmission is completed before 5:00pm recipient's local time on a Business Day, or if delivery is attempted but refused between the hours of 9:00am and 5:00pm recipient's local time on a Business Day, then on the day of actual delivery or attempted delivery and (B) otherwise, on the Business Day following the day of actual delivery or Fax transmission; provided, however, that delivery by Fax shall be effective only if the Fax transmission is confirmed within three Business Days by duplicate notice delivered as otherwise provided herein. Time of delivery or attempted delivery shall be established by postal or courier receipt; time of completion of Fax transmission shall be established by a transmission confirmation log sheet generated by the sending machine.
(g) Counterparts. This Agreement may be executed in two or more counterparts, including counterparts transmitted by facsimile, each of which shall be deemed an original and all of which together shall constitute one instrument.
(h) Successors and Assigns. The rights and benefits of this Agreement shall inure to the benefit of, and be enforceable by the Company's successors and assigns. The rights and obligations of the Contractor under this Agreement may only be assigned with the prior written consent of the Company.
(I) Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
(j) Number and Gender. Whenever used herein, the singular number shall include the plural and the plural the singular, and the use of any gender shall be applicable to all genders.
(k) Irreparable Harm. The Contractor and the Company agree that the covenants and obligations contained in this Agreement relate to special, unique and extraordinary matters and that a violation of any of such covenants or obligations may cause the Company or the Contractor irreparable injury for which adequate remedy at law shall not be available; and, therefore, that upon any such breach of any such covenant or obligation, or any threat thereof, the Company and the Contractor shall be entitled to the immediate remedy of a temporary restraining order, preliminary injunction or such other form of injunctive or equitable relief in addition to whatever remedies they might have at law.
(l) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered in the County of Los Angeles, California by the American Arbitration Association or JAMS under its Commercial Arbitration Rules. Both Parties hereby agree and waive their right(s) to challenge, vacate or otherwise seek to dispute an arbitration award. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to recover its reasonable legal fees and other costs of suit or arbitration. Notwithstanding the foregoing, in the event that Contractor is named in a claim filed by a third party against the Company or against the Company and Contractor, Company hereby agrees to defend and indemnify Contractor against any and all such claims. Furthermore, Company agrees to reimburse Contractor for any expense(s) incurred in connection with defense of any claim(s) brought against Company provided that Contractor was acting within the scope of Contractor’s duties for the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
EXHIBIT A Description of Services
During the Term of this Agreement, the Contractor shall provide the following services to the Company (the "Services"):
- Contractor shall provide services to Company or otherwise perform and/or vend goods at the 2018 Desert Hearts Festival
- Contractor shall obey all local, state and federal laws while providing services to Company
- Contractor shall not engage in sexual harassment or discrimination while rendering Services to Company
- Contractor shall not deliberately disturb the vibes
EXHIBIT B ASSUMPTION OF RISK:
Contractor hereby fully waives and releases Company, its owners, members and its assignees and licensees, from any and all claims for personal injury, property damage, or death that may result from Contractor’s services as a Contractor. Contractor acknowledges and understands that Contractor is not covered under any liability policy or protected by Worker’s Compensation laws. Contractor hereby acknowledges and understands there are dangers and risks associated with Contractor’s services as a Contractor, including but not limited to the contractor risks and inherent risks and other risks disclosed in the Vendor Agreement, which have been fully explained to me. Contractor hereby agrees to abide by all rules, instructions, policies and procedures imposed by Company relating to the use of Company’s facilities, Company’s property and/or the facilities and property of Company’s assignees or licensees. For the avoidance of doubt, the location of the Desert Hearts Festival shall be deemed a Company facility for purposes of this Agreement. By signing this Agreement, Contractor fully assumes all the risks of their participation in Desert Hearts Festival 2018, and agrees to use their best judgment while engaging in services as a Contractor. Contractor further agrees to indemnify and hold harmless the Company, its employees, agents, and officers, from and against any and all liability incurred as a result of or in any manner related to services as a Contractor. Contractor hereby certifies that Contractor is of legal age and competent to execute this Agreement. Contractor hereby certifies that they enter into this agreement voluntarily and without duress.