INDEPENDENT CONTRACTOR SERVICES AGREEMENT (SALES)
* Certain portions of this exhibit have been omitted pursuant to a
request for confidential treatment and those portions have been filed separately
with the Securities and Exchange Commission.
INDEPENDENT CONTRACTOR
SERVICES AGREEMENT (SALES)
This
Independent Contractor Agreement (this “Agreement”) is effective as of the 23
day of, 2009, and is by and between RockHard Laboratories, LLC ("the Company"),
and Health and Wellness Partners, Inc. (the “Independent
Contractor").
WHEREAS,
The Company desires to retain the Independent Contractor as an independent
contractor, to sell and promote the Company's products in the State of
California, and Independent Contractor desires to be engaged by the Company to
provide such services to the Company.
NOW
THEREFORE, in consideration for the covenants and promises set forth below, the
Company and the Independent Contractor agree to the following terms and
conditions:
1. Services. Upon
the terms and conditions set forth in this Agreement, the Company retains the
Independent Contractor to sell and promote the Company's products, and the
Independent Contractor agrees to provide such services and the provision of such
other services as are requested by the Company from time to time (collectively,
the "Services").
2. Term
and Termination. Retention of the Independent Contractor to perform
the Services shall commence on the date hereof and shall continue for one (1)
year, and at the end of any term, shall automatically be extended for a
successive one (1) year period unless either party gives written notice to the
other of their intent not to extend this Agreement not less than two (2) days
prior to the end of the current term; provided however, that such term may be
terminated at such earlier time designated by either party upon two (2) days
written notice, or immediately upon Good Cause. "Good Cause" means conduct
amounting to fraud or dishonesty against the Company; independent contractor's
material breach of any representation or agreement contained herein; Company's
material breach of any representation or agreement contained herein; and/or
either party's violation of any applicable laws or regulations. In the event the
Agreement terminates by its term, the parties may review the relationship and
may thereafter enter into a new Independent Contractor Services Agreement if so
desired. In the event the Agreement is not renewed or is otherwise terminated at
an earlier time, the Independent Contractor shall only be paid for such services
as were performed through the date of termination of the Agreement, or the
prorated portion thereof, and no other sums or amounts.
3. Fees
and Expenses.
a. Service
Fee. In consideration of the Independent Contractor's performance of
the Services to the Company, the Independent Contractor will be an Authorized
Distributor for RockHard Laboratories (Makers of RockHard Weekend) and have
Distributor Pricing (Exhibit Attached).
b. Expenses. The
Service Fee shall be the sole compensation to Independent Contractor under this
Agreement, and the Company shall not reimburse Independent Contractor for any
expenses incurred by Independent Contractor for services provided
hereunder.
4. Rights
to Sounds and Images
a. Independent
Contractor hereby grants to the Company the irrevocable, unrestricted, and
unlimited right and permission to create. produce, use, make derivative works,
reproduce, publish, and exhibit in any form, in any medium, whether existing or
to be developed, and in any manner whatsoever, any and all sounds, quotations,
statements, images, artistic interpretations, photographs, video or audio tapes,
digitized sounds or images or other means of reproduction (the "Sounds and
Images") of Independent Contractor, Independent Contractor's physical likeness
or otherwise taken of independent Contractor, or words and/or statements said,
written, or otherwise made by Independent Contractor, during or related in any
to the performance of the Services for the Company, without restriction as to
purpose or the date of use. Independent Contactor hereby assigns to the Company
all copyrights provided under the Copyright Laws of the United States or any
other applicable sovereign government that Independent Contractor may have in
any such Sounds and Images. If requested by the Company, Independent Contractor
agrees to execute any additional documents necessary to effectuate the Company's
sole ownership of the Sounds and Images, Including, but not limited to, sole
ownership of all copyrights. Independent Contractor also expressly permits the
Company to transfer any rights granted in the Sounds and Images to any other
party.
b. Independent
Contractor hereby waives any and all rights Independent Contractor may have to
inspect or approve any of the finished or unfinished Sounds and Images, or to
approve the use made of any such Sounds and Images, so long as they are used for
lawful purposes. The Independent Contractor may not set or change any prices on
any product lines unless notifying the company first or the contract will be
terminated. No Online Merchants may use our products to sell or compete against
the Company unless authorized by the company. Our names (e.g. RockHard Weekend,
RockHard Laboratories/Distributors) may not be used in any Sponsored Links
Online to sell the company products or compete against the Company or this
contract is terminated and all Legal Fees and losses are paid by Independent
Contractor. All Prices for the products are set by the Company set forth in this
contract.
c. The
Independent Contractor agrees they are in good financial standing. The
Independent Contractor is responsible financially for all the product the
Company turns over to the Independent Contractor for distribution if loss or
theft occurs after the product is released out of the Company's hands the
Independent Contractor is responsible to replace the cost of the product if not
paid for in full.
5. Non-Disclosure
of Confidential Information. Independent Contractor agrees not to
use, disclose or communicate to any person, firm, or corporation any
Confidential Information learned by Independent Contractor In the course and
scope of performing Services for the Company and for three (3) years following
termination of this Agreement, so long as such information remains confidential.
“Confidential information" means information not commonly known by or available
to the public that the Company treats as confidential, including but not limited
to, the identity, preferences, or other practices of any of its customers or
clients; customer or mailing lists; information contained in the Company's
computer or other systems, including but not limited to, marketing, sales or
business plans, presentations or similar work products; financial, accounting,
or other data or information; fees charged to customers or clients; contracts,
obligations, or negotiations affecting the Company's business: the identity
performance or practices of its vendors, subcontractors or suppliers, the rates,
prices, commissions, or discounts it obtains or has obtained; sales costs:
compensation or benefits paid to employees, and other terms of employment; and
other information regarding the Company's employment and business practices not
generally known to the public.
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6. No
Disclosure of Trade Secrets. Independent Contractor agrees not to
use, disclose or communicate to any person, entity or enterprise, any Trade
Secrets learned by Independent Contractor in the course and scope of the
performance of Services for the Company pursuant to this Agreement or at any
time thereafter, so long as such information remains a trade secret. The
definition of a Trade Secret is a matter of state law, but generally means
information related to the Company's business which is not commonly known by or
available to the public and which (i) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (ii) is the subject of efforts to maintain its
secrecy that are reasonable under the circumstances.
7. Compliance
with Laws. Independent Contractor will provide the Services in
accordance with federal and state laws and local ordinances. Independent
Contractor hereby represents, warrants and covenants to Company that, to the
best of Independent Contractor's knowledge (i) the Independent Contractor is not
in violation of any laws or regulations which would prohibit the Independent
Contractor from legally performing its duties hereunder and (ii) the performance
of Independent Contractor's duties hereunder will not result in the violation of
any laws or regulations.
a. Payment
of Taxes and Fees. Independent Contractor will furnish and pay for
all taxes, fees, assessments and licenses imposed on the Independent Contractor
or the Fee. The Independent Contractor is aware of the federal and state income
tax consequences that are applicable to income received by individuals,
including the Independent Contractor, as a consequence of the work done in
performing the Services.
b. Non-Discrimination. Independent
Contractor shall not discriminate because of race, color, religion, sex, age,
national origin, known handicap or disability or status as a Vietnam era veteran
or disabled veteran, and as further defined and prohibited by applicable federal
and state government laws, in the recruitment, selection, training, utilization,
promotion, termination, or other employment-related activities.
8. Independent
Contractor. The Company is only interested in the results of the
Independent Contractor's performance of the Services. The Independent Contractor
shall have sale control of the manner and means of his or her performance
responsibilities and provision of services under this Agreement.
a. Independent
Contractor Relationship. Independent Contractor is entering into this
Agreement as, and will continue to be, an independent contractor, and is not and
shall not make any claim that he or she is an employee, agent, servant, partner,
joint venturer, or representative of the Company. Independent Contractor shall
have no authority to transact business, enter into agreements or otherwise make
commitments on behalf of the Company unless expressly authorized to do so in
writing by the Company. The Independent Contractor shall not engage in any
activities that give third parties the impression that Independent Contractor
has the actual or apparent authority to bind the Company.
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b. No
Benefits. Independent Contractor shall not be entitled to any
benefits accorded to the Company's employees, including, without limitation,
worker's compensation, disability Insurance, medical or dental benefits,
vacation or sick pay.
c. Compliance
with Company Rules. Independent Contractor agrees to provide and
perform the Services, subject to such policies, procedures, restrictions, rules
and regulations as may be established from time to time. Independent Contractor
further agrees to indemnify and hold the Company harmless for any claims,
demands, suits or the like arising from any activities performed by Independent
Contractor that are outside of the specific scope of the services agreed to in
this Agreement.
9. Non-Assignment. This
Agreement is personal in nature and shall in no way be subject to assignment by
the Independent Contractor or the Company, except upon the advance written
consent of the other party or as otherwise set forth in this Agreement. This
Agreement and the rights and obligations of the parties hereto will inure to the
benefit of, will be binding upon, and will be enforceable by the Company and the
Independent Contractor, and their lawful successors, representatives and
permitted assigns.
10. Choice
of Law. This Agreement will be governed by and construed In
accordance with the laws of the State of Georgia, without regard to conflicts of
laws principles. Time is of the essence.
11. Enforceability. If
any portion or provision of this Agreement shall to any extent be declared
illegal or unenforceable by a duly authorized court of competent jurisdiction,
then the remainder of this Agreement, or the application of such portion or
provision in circumstances other than those as to which it is so declared
illegal or unenforceable, shall not be affected thereby, and each portion and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
12. Entire
Agreement. This Agreement constitutes the entire agreement and
understanding between the parties in relation to the subject matter hereof and
there are no promises, representations, conditions, provisions or terms related
thereto other than those set forth in this Agreement. This Agreement supersedes
all previous understandings, agreements and representations between the Company
and the Independent Contractor regarding the Independent Contractor's engagement
by the Company, written or oral. The parties hereto have each negotiated the
terms hereof and carefully reviewed this Agreement and the policies and
procedures promulgated hereunder.
13. Waiver;
Amendment. No waiver in any instance by any party of any provision of
this Agreement shall be deemed a waiver by such party of such provision in any
other instance or a waiver of any other provision hereunder in any instance.
This Agreement cannot be modified except in writing signed by the party to be
charged.
14. No
Third Party Beneficiary Right. This Agreement and its terms and provisions shall
not confer any rights or remedies upon any person other than the parties hereto
and their respective successors and permitted agents.
15.
Severability. The parties agree that each of the provisions included in this
Agreement is separate, distinct, and severable from the other and remaining
provisions of this Agreement, and that the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of any other provision
or provisions of this Agreement. Further, if any provision of this Agreement is
ruled invalid or unenforceable by a court of competent jurisdiction because of a
conflict between such provision and any applicable law or public policy, such
provision shall be valid and enforceable to the extent such provision is
consistent with such law or public policy.
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16.
Arbitration. Any controversy or claim arising out of or relating to this
agreement or the breach of this agreement will be settled by arbitration in
accordance with the rules of the American Arbitration Association. Judgment on
the award rendered by the arbitrator maybe entered in any court having
jurisdiction over the award.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
specified above.
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INDEPENDENT
CONTRACTOR
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇
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ROCK
HARD LABORATORIES, LLC,
a
Georgia limited liability company
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Print
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Address:
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone
Number: ▇▇▇-▇▇▇-▇▇▇▇
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By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
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EXHIBIT
A
PRICES
*
* The
confidential portion has been omitted and filed separately with the Securities
and Exchange Commission