Exhibit 10.32
(SYKES(SM) LOGO)
INDEPENDENT SUBCONTRACTOR AGREEMENT
THIS AGREEMENT is made by and between ▇▇▇▇▇ Enterprises, Incorporated
("Sykes"), a Florida corporation, with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Subcontractor"), with offices at
_________________________________________________________________.
WHEREAS, the parties wish to enter into an agreement whereby
Subcontractor will provide services to Sykes as an independent contractor.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. SERVICES. Subcontractor will provide all services under this Agreement as
an independent contractor. Sykes may retain Subcontractor to provide
services on a project-by-project basis as assigned by the President and
COO. Subcontractor will perform all services necessary to complete each
project assigned to him/her in a professional manner, including performing
those duties customarily performed by one providing similar services.
Subcontractor will accept only that work which Subcontractor is qualified
and able to perform. Wherever practicable, the specific requirements and
terms of each work project shall be set forth in writing on a work order or
statement of work signed by both parties.
2. STANDARDS. All services provided by Subcontractor will be under his/her own
direction and control. Subcontractor will perform services in accordance
with the standards and parameters established by Sykes, including, but not
limited to, the time for completing each project, the format of the product
produced or services performed, and the standards of quality set by Sykes.
Subcontractor will perform all work hereunder in accordance with the
highest applicable standards for the relevant industry. All services will
be performed to the satisfaction of Sykes and its clients.
3. RESPONSIBILITIES.
a. Subcontractor shall comply with all of Sykes' and Sykes' clients'
rules, procedures and policies relating to or affecting the
services to be provided hereunder (including clients' standards
of quality). Subcontractor will comply with clients' rules and
policies with respect to security of and access to clients'
premises and telephone and electronic mail facilities.
b. In its performance of this Agreement, Subcontractor will comply
with all applicable federal, state and local laws.
c. Subcontractor will maintain in effect during the term of this
Agreement any and all federal, state and local licenses and
permits that may be required.
4. INVOICING. Subcontractor will be paid a retained fee of Ten Thousand
Dollars ($10,000.00) per month for which Subcontractor will perform 100
hours of work, as mutually agreed between the parties. Any hours of work
above 100 hours per month will first be approved by the President and COO,
and will be billed by Subcontractor at the rate of one hundred dollars
($100.00) per hour worked. Subject to the satisfactory completion of the
services, as determined by Sykes in its reasonable discretion, Sykes will
pay Subcontractor within thirty (30) days following receipt of invoice,
less any portion thereof in dispute. In the event of any disputed invoice
(including disputes over whether work was performed in a satisfactory
manner), Sykes and Subcontractor agree to negotiate in good faith toward a
quick resolution of the dispute and payment of the mutually agreed upon
amount. If the parties cannot resolve their payment dispute within ninety
(90) days from the date Subcontractor presents the invoice to Sykes, such
dispute shall be referred to binding arbitration in accordance with Section
14 below.
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5. NON-SOLICITATION. During the term of this Agreement and through March 5,
2006, Subcontractor covenants and agrees not to directly or indirectly
solicit business from any client of Sykes, or solicit the services of any
employee of Sykes who was providing services or work to Sykes or to any
client of Sykes.
6. OWNERSHIP OF MATERIALS.
a. All materials provided to Subcontractor by Sykes or Sykes'
clients, or produced by Subcontractor for Sykes or Sykes'
clients, including, but not limited to, all information and
materials relating to products, services, customers, business
methods, strategies and practices, internal operations, pricing
and billing, financial data, costs, personnel information,
customer and supplier contacts, sales lists, technology,
software, computer programs, computer systems, inventions,
developments, trade secrets of every kind, information designated
by Sykes or any of its clients as confidential and all other
information or documents that might reasonably be deemed
confidential, shall belong exclusively to and remain the property
of Sykes or Sykes' clients, as the case may be. All materials and
property of Sykes must be returned to Sykes upon completion of
the assignment or project or termination of this Agreement. All
materials and property of Sykes' client must be returned to such
client upon completion of the assignment or project for such
client.
b. Subcontractor hereby irrevocably transfers and assigns to Sykes
or Sykes' designee any and all of his/her right, title, and
interest in and to all work product, inventions, discoveries and
materials produced in connection with this Agreement, including,
but not limited to, all copyrights, patent rights, trade secrets
and trademarks in such work product and materials. Subcontractor
agrees: (a) to promptly disclose in writing to Sykes all work
product, inventions, discoveries and materials developed or
conceived by Subcontractor in performing services hereunder; (b)
to cooperate with and assist Sykes or its clients in applying
for, and to execute any applications or assignments reasonably
necessary to obtain, any patent, copyright, trademark or other
statutory protection; and (c) to otherwise treat all work
product, inventions, discoveries and materials as confidential.
Subcontractor's obligations under this section shall survive any
termination of this Agreement.
7. CONFIDENTIALITY. Subcontractor will, during the course of providing
services to Sykes, have access to and acquire knowledge from material,
data, systems and other information of or with respect to Sykes and any of
its clients which may not be accessible or known to the general public,
including information concerning its hardware, software, business plans or
opportunities, business strategies, finances or employees and third-party
proprietary or confidential information that Sykes or its clients treat as
confidential. Any knowledge, material, or information acquired while
performing services for Sykes shall not be used, published or divulged by
Subcontractor in connection with any services rendered by Subcontractor to
any other person, firm or company, or in any advertising or promotion
regarding Subcontractor or his/her services, or in any other manner or
connection whatsoever without first having obtained the written permission
of Sykes, which permission Sykes may withhold in its sole discretion.
Subcontractor shall not disclose the terms and conditions of this Agreement
to any third party, including other independent contractors or employees
working for Sykes.
8. COVENANT NOT-TO-COMPETE. During the term of this Agreement and through
March 5, 2006, Subcontractor shall not, directly or indirectly, either for
his own account, or as a partner, shareholder, officer, director, employee,
agent or otherwise, own, manage, operate, control, be employed by,
participate in, consult with, perform services for, or otherwise be
connected with any business the same as or similar to the business being
conducted by Sykes. In the event any of the provisions of this paragraph 8
are determined to be invalid by reason of their scope or duration, this
paragraph 8 shall be deemed modified to the extent required to cure the
invalidity. In the event of a breach, or a threatened breach, of this
paragraph 8, Sykes shall be entitled to obtain an injunction restraining
the commitments or continuance of the breach, as well as any other legal or
equitable remedies permitted by law. Because of the worldwide nature of
Sykes' business activities, the parties agree that the reasonable scope of
this Covenant Not-to-Compete is worldwide.
9. INDEPENDENT CONTRACTOR. Subcontractor will perform services as an
independent contractor and not as an employee of Sykes. Sykes will not
withhold any amount for taxes, and will provide Subcontractor with a Form
1099 in January of each year indicating compensation paid over the previous
year. Subcontractor will pay and accepts full responsibility for payment of
any and all federal, state, and local taxes (including FICA and FUTA),
penalties and interest that may be lawfully due to any government unit, and
to indemnify and hold Sykes
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harmless from any liability from the non-payment of taxes, penalties, and
interest due from any other party to any governmental unit. Subcontractor
represents and warrants that he/she meets all requirements of Section 1706
of the Tax Reform Act of 1986, as amended. Subcontractor acknowledges that
he/she is not covered by Sykes for any form of worker's compensation
insurance coverage, unemployment compensation insurance coverage,
compensation provided under federal, state, or local compulsion or
compulsory legislation which affects contractors and employers, or
insurance for injury, sickness or retirement, whether in the form of Social
Security or otherwise as a result of providing services to Sykes.
Subcontractor waives all such claims relating to the items in this section.
In no event shall Subcontractor be deemed to be the agent or legal
representative of Sykes, and Subcontractor shall have no authority to
assume or create any obligations, or make any representations, on behalf of
Sykes. All activities and work performed by Subcontractor under this
Agreement shall be at its own risk.
10. NO BENEFITS. Subcontractor agrees and acknowledges that he/she is not
entitled to any of the benefits made available to employees of Sykes or
Sykes' clients. Subcontractor waives, discharges and releases any claim for
any benefit offered to the employees of Sykes or Sykes' clients.
Subcontractor understands and agrees that this specifically includes, but
is not limited to, pension coverage or benefits, savings and investment
plan benefits, employee stock option participation, holiday pay, separation
pay, or any other benefit of any type or description. In the event
Subcontractor is retroactively determined by a court or administrative
agency to be an employee of Sykes, Subcontractor shall continue to be
classified as a leased employee or contract employee for purposes of all
Sykes benefit plans and, notwithstanding such determination, shall not be
eligible to participate in Sykes benefit plans.
11. INSURANCE.
a. Subcontractor shall maintain, at its sole cost and expense,
commercial general liability and automobile liability insurance
with limits of liability acceptable to Sykes.
b. Subcontractor shall provide Sykes with properly executed
certificates of insurance prior to commencement of performance of
this Agreement and shall provide Sykes with at least thirty (30)
days' prior written notice of any reduction or cancellation of
the above insurance coverage.
12. INDEMNIFICATION. Subcontractor shall indemnify, defend and hold harmless
Sykes and its clients and all of their respective directors, officers,
employees, agents, successors and assigns, from and against all claims,
demands, actions, suits, judgments, losses, damages, costs and expenses,
including court costs and reasonable attorneys' fees, incurred as a result
of any of the following: (i) breach of or failure to perform any
obligation, provision or condition of Subcontractor contained in this
Agreement, (ii) Subcontractor's failure to comply with any applicable laws,
regulations or orders, (iii) any negligent act or omission or intentional
misconduct on the part of Subcontractor or his/her employees, (iv) the
termination of Subcontractor under this Agreement or any project or
assignment, (v) the alleged existence of any employer/employee relationship
between Subcontractor and Sykes or its clients, (vi) any direct claim for
workers' compensation benefits asserted against Sykes or its clients by
Subcontractor or any employee thereof, and (vii) any claim or action that
the services or products provided by Subcontractor under this Agreement
infringe the patent, copyright, trademark, trade secret or other
intellectual or proprietary right of a third party.
13. TERM; TERMINATION. The term of this Agreement shall be for one (1) year,
beginning August 2, 2004. Either party may terminate this Agreement at any
time, with or without cause, upon at least sixty (60) days' prior written
notice to the other party. Sykes may terminate this Agreement immediately
upon a material breach by Subcontractor.
14. ARBITRATION. Both parties agree that any action under this Agreement shall
be submitted to arbitration administered by the American Arbitration
Association (AAA) before a sole arbitrator in accordance with AAA's
then-existing Commercial Arbitration Rules. The arbitrator shall be
selected by AAA from a list of approved arbitrators for disputes of the
type presented. The site of any arbitration shall be Hillsborough County,
Florida, unless otherwise agreed by the parties in writing. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitrator will not decide as amiable
compositeur. The prevailing party will be awarded its costs, including
legal fees, incurred in connection with the arbitration, and the
arbitration proceedings will be confidential and will not be discussed by
the parties or the arbitrator with third parties, with the exception of
lawyers, consultants, and others engaged to assist the parties in the
arbitration. All documents and other evidence exchanged in the arbitration
and any copies thereof
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will be returned by the arbitrator and the other party to the party
producing such documents or other evidence promptly after the final
conclusion of any arbitration by award, stipulation, or continuance.
15. MISCELLANEOUS.
a. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Florida, without regard to its conflict of law
principles.
b. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the other
party's prior written consent, which shall not be unreasonably
withheld or delayed.
c. SEVERABILITY. In the event any provision of this Agreement is
found to be unenforceable, void, invalid or unreasonable in
scope, such provision shall be modified to the extent necessary
to make it enforceable, and, as so modified, this Agreement shall
remain in full force and effect.
d. NO WAIVER. Failure by either party to exercise any rights
contained in this Agreement shall not be construed as a waiver of
such rights.
e. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original copy of this
Agreement and all of which, when taken together, shall be deemed
to constitute one and the same Agreement.
f. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties, supersedes any prior understandings relating to
the subject matter hereof, and may be amended or supplemented
only in a written agreement signed by both parties.
g. SECTION HEADINGS. Section headings are provided for convenience
only. They do not modify or affect the meaning of any provision
herein and will not serve as a basis for interpretation or
construction of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the respective dates written below.
▇▇▇▇▇ ENTERPRISES, INCORPORATED SUBCONTRACTOR
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: Principal Consultant
Date: July 27, 2004 Date: July 27, 2004
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