Terms and conditions * I agree to the PayMeTravel Independent Contractor Agreement outlined below:
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (“Agreement”) is entered into as of the date of this agreement between Smolinski and Associates, Inc., doing business under various trade names including but not limited to, Oasis Travel Network, Palm Coast Travel and PaymeTravel, (collectively “PMT”), located at 2424 N. Federal Highway, Suite 166, Boca Raton, Florida 33431 and the independent contractor (“IC”) indicated below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Term & Renewal. The term of this Agreement is for one (1) year from the date of the last signature hereto. This Agreement shall automatically renew on its anniversary date unless either party provides the other party with notice of cancellation. Either party may terminate this Agreement at any time.
2. IC Fees & Payments. PMT reserves the right to charge and/or amend fees for services and programs provided to IC at any time with 10 days advance notice to IC. All fees paid by IC are non-refundable.
3. Duties of IC. The parties agree that the IC intends and agrees to perform this Agreement by booking travel related services including, but not limited to, hotel stays, cruise, vacation packages, etc. IC agrees to do business using its own name and will never present, imply or represent itself as an agent, representative or employee of PMT. The parties expressly agree that IC operates a total separate business from PMT and that PMT does not offer supervision of any type to the IC. IC shall have no authority to bind, obligate or commit PMT by any promise or representation unless specifically authorized in writing by an officer of PMT in a particular transaction. Any contract on behalf of PMT must be signed by the President or authorized senior officer (Senior Vice-President or higher) of PMT. IC certifies that it will register and obtain all licensing and registrations required pursuant to the laws of the jurisdictions where it books travel. IC warrants that it shall abide by all applicable local, state, national and foreign laws, treaties and regulations related to data privacy, international communications and the transmission of technical or personal data.
4. Payments to ICs. “Commissions” are defined as the point of sale, up-front commissions and incentives paid by travel suppliers for travel related bookings generated by the IC. PMT will publish the percentage or amount of the IC’s share of commission on the Paymetravel.com website at the time the specific travel related booking is made. Once commissions are received by PMT from the travel supplier and the customer of the IC has paid in full and completed travel for that booking, PMT will pay the IC’s share of the commission within 30 days electronically via direct deposit to the IC’s bank account.The IC must have a current W-9 or W-8 BEN on file with PMT and any other required government forms. PMT may, in its sole and absolute discretion, withhold payments to IC as an offset and guarantee of the performance of IC as required under this Agreement, including but not limited to potential or actual claims or actions that may require IC’s indemnification of PMT or others.
5. Non-Exclusivity & No Hire. PMT retains the right to contract for similar services with other ICs. IC similarly retains the right to enter into contracts with others to book travel services to its customers and is free to do business with any other entity other than PMT. This Agreement does not constitute a hiring by either party. IC is not required to work particular and/or regular hours, is not required to be at the PMT office to perform work, is not covered by PMT employee policies and procedures manuals, is not required to attend office meetings or training seminars, is not required to sell travel services or operate its independent business using any PMT system, program or suggestion, or restricted to any specific territory. PMT and IC confirm that their relationship is as independent contractor and nothing contained herein shall be interpreted or constructed as creating an employment, agency, association, partnership or joint venture relationship. IC agrees to be responsible for all of its own taxes, fees and assessments, including but not limited to Federal Income and Social Security taxes. PMT will submit to the Internal Revenue Service a 1099 form as required by law on behalf of the IC at the end of each fiscal taxable year. IC agrees to immediately reimburse PMT for, and agrees to indemnify and hold PMT and all Indemnified Parties (as defined in Section 7 below) harmless for any assessments against PMT and/or any of the Indemnified Parties arising out of any failure by IC to pay federal, state, employee payroll (for its own employees or others under the control of the IC), or local income taxes, including estimated tax payments, and file returns in connection therewith, or to pay Social Security, FICA, or workers’ compensation or any other fees, taxes or assessments, for anyone or any entity.
6. Confidential Information and Non-Disclosure. For the purposes of this Agreement, “Confidential Information” means the terms and conditions of this Agreement and any and all information of PMT that has been disclosed to IC, whether before or after the execution of this Agreement, and that is not generally known and is proprietary to PMT, all its present and future subsidiaries, affiliates, consultants and/or suppliers. Confidential Information may include, without limitation, client, employee, supplier, independent contractor, commissions, overrides, pricing, PMT Customers, trade secrets of or about PMT, and its products and information or other proprietary information relating to designs, formulas, developmental or experimental work, know-how, products, processes, computer programs, software, databases, designs, schematics, any subject matter related to PMT’s research and development, purchasing, finance, marketing, promotion, operations, distribution and selling activities, whether now existing, acquired, developed or made available anytime in the future to PMT, and any other information which would be valuable to third parties and detrimental to the interests of PMT, as well as all information that the IC has a reasonable basis to consider confidential or is treated by PMT as confidential shall be presumed to be Confidential Information. IC agrees that any Confidential Information acquired by him/her is the property of PMT. PMT and IC agree that the Confidential Information for purposes of this relationship is to be broadly defined. For purposes of this Agreement, Confidential Information excludes information that: (a) was lawfully known to IC before receipt from PMT without restriction; (b) is or becomes publicly available through no fault of IC; (c) is rightfully received by IC from a third party without a duty of confidentiality; (d) is disclosed without restriction by PMT to a third party; (e) is independently developed by IC without the use of any Confidential Information of PMT or any breach of this Agreement; or (f) is disclosed by IC with PMT’s prior written approval. If IC is required by a government body or court of law to disclose Confidential Information of PMT, IC agrees to give PMT reasonable advance notice so that PMT may contest the disclosure or seek a protective order.
a. Confidentiality. During the term of this Agreement and at all times thereafter, IC shall hold in strictest confidence and shall not use Confidential Information except for the benefit of PMT as authorized under this Agreement, nor to disclose, transfer or reveal, directly or indirectly to any person or entity, any Confidential Information without the prior written authorization of PMT. IC agrees and acknowledges that PMT’s Confidential Information and intellectual property are and shall remain at all times the exclusive property of PMT. IC shall exercise at least the same degree of diligence in preserving the secrecy of PMT’s Confidential Information as the diligence it uses in preserving the secrecy of its own confidential information of a similar nature, but in no event less than reasonable diligence. IC agrees that at no time, including after termination of this Agreement, will it, either individually or through or with the aid or assistance of others, (i) directly or indirectly, solicit, take, misappropriate, or misuse any of the property of PMT including but not limited to the Confidential Information, nor (ii) assert any claim that PMT’s Confidential Information or intellectual property infringes anyone’s intellectual property rights. Any breach by IC of any term or condition of this Confidentiality Agreement may result in immediate termination of this Agreement and forfeiture of unpaid IC Share.
b. No Interference. IC further agrees, during the term of this Agreement and at all times thereafter, not to: (i) solicit, induce, refer or contact, directly or through others, any PMT Customer, for the purpose of competing with PMT; (ii) disparage PMT or any of its employees, managers, owners, other independent contractors, suppliers, agents or representatives in any manner; (iii) disrupt, damage, impair or interfere with the business of PMT in any manner, including, without limitation, by soliciting, inducing, referring or contacting, directly or through others, any employee, independent contractor, representative, consultant or supplier of PMT to sever or change that person’s or that entity’s relationship with PMT; (iv) interfere with any of PMT’s employees, customers, PMT Customers or independent contractors, by directly or indirectly soliciting, inducing or referring, any such person or entity, to leave PMT or begin doing business with another entity or person; or (v) disrupt in any way PMT’s relationships with PMT customers, agents, employees, consultants, suppliers, independent contractors and/or representatives.
c. Third Parties. IC recognizes that PMT has received, and in the future will receive confidential or proprietary information from third parties, subject to a duty on PMT’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. IC agrees that it owes PMT and such third parties, during the term of this Agreement and at all times thereafter, a duty to hold all such confidential or proprietary information in the strictest of confidence, and not to (i) disclose it to any person, firm or corporation (except as necessary in carrying IC’s duties pursuant to this Agreement), consistent with PMT’s agreement with such third party, or (ii) use it for the benefit of anyone other than for PMT or such third party (consistent with the PMT’s agreement with such third party), without the express written authorization of PMT. Any such information shall be considered Confidential Information for the purposes of this Agreement.
d. Responsibility of IC for its Employees, Contractors and Agents. IC accepts full and complete responsibility and liability for the actions, inactions, omissions and/or mistakes of all of its employees, agents, partners, representatives, contractors and/or Associates, and shall cause all such parties to comply with the terms and conditions of this Agreement. IC further agrees that a breach of this Agreement committed by its employees, agents, partners, representatives, contractors and/or associates shall be treated the same under this Agreement as if IC committed the breach.
e. Return of Materials. At the request of PMT or upon termination of this Agreement, IC will immediately destroy or deliver to PMT, as directed by PMT, all Confidential Information furnished to IC and/or any of its employees, agents, partners, representatives, contractors and/or associates, and which was prepared or made, in whole or in part, by IC and/or any of its employees, agents, partners, representatives, contractors and/or associates at any time during IC’s association with PMT including without limitation, paper or electronic files, notes, forms and contact information about PMT Customers and PMT.
f. Trade Secrets of Others. IC understands that it is the firm policy of PMT to maintain the rights of any party with whom the IC may have in another confidentiality or proprietary rights agreement. IC will not disclose to PMT or induce PMT to use the proprietary information of others, other than information received by PMT from third parties. IC warrants he/she does not have any existing obligation to others that might be inconsistent with any of the provisions in this Agreement.
g. Equitable Relief. The parties acknowledge that PMT’s damages would be difficult to calculate in the event IC or its employees, agents, partners, representatives, contractors and/or associates should, directly or indirectly, take, induce, solicit or otherwise refer an PMT employee or independent contractor to another person, travel agency, company, service, or entity. In such event, IC therefore agrees to be liable to PMT as follows: (i) for each such employee or independent contractor of PMT a sum of twenty-five thousand dollars ($25,000). Furthermore, IC agrees and understands that if it violates or breaches any term or condition of this section, it is presumed that PMT will suffer immediate, irreparable harm for which monetary damages may not be adequate, and, in addition to any other available remedies, (ii) IC agrees that PMT may seek injunctive relief without posting bond against the IC or its employees, agents, partners, representatives, contractors and/or associates as a result of said breach or violation, (iii) all unpaid IC Share due is forfeited, and (iv) PMT shall be entitled to terminate this Agreement.
7. IC Expenses & Indemnification. PMT shall not be liable to IC for any expenses incurred by IC. IC will be responsible for its own office and for paying all charges related to operational expenses and day to day overhead, including but not limited to rent, employees, utilities, marketing and other promotional activities. IC shall be responsible and liable for all actions, inactions and omissions of any employees, agents, partners, representatives, contractors and/or associates of IC, and for all of the foregoing parties’ full compliance with the terms and conditions of this Agreement. Furthermore, IC agrees that before any such party is given any access to PMT Software Products (as defined in Section 8 below) or other Confidential Information, IC shall register with PMT the name of and contact information of each such employee, agent, partner, representative, contractor and/or associate of IC. IC agrees not to incur any costs or charges on PMT’s behalf, and to be fully responsible for all costs, charges and claims against PMT arising out of or related in any way to IC’s travel business, including but not limited to non-sufficient funds checks, credit card charges, debit memos, claims, booking errors, lawsuits, judgments and assessments. The IC agrees to immediately reimburse PMT for any such charges paid by PMT, at the request of PMT, and agrees to indemnify and hold PMT and its owners, shareholders, affiliates, employees and directors harmless for such charges. IC assumes the risk of incurring a loss if its IC Share does not cover the IC’s expenses. Promptly upon demand by PMT, IC shall defend, indemnify and hold harmless PMT and all of its directors, officers, affiliates, parent and subsidiary companies, shareholders, members, agents, other independent contractors and employees (collectively “Indemnified Parties”) against and in respect of the following matters: (i) any and all costs or expenses, losses, damages, claims or deficiencies arising from the assertion against PMT and any or all of the Indemnified Parties or their respective successors and assigns, related to the acts or omissions of IC and/or its employees, agents or representatives of each and every nature whatsoever; (ii) any and all costs or expenses, losses, damages, claims or deficiencies resulting, directly or indirectly, from any misrepresentation or omission, breach of warranty or non-fulfillment of any covenant, condition or agreement of IC and its employees, agents or representatives contained in this Agreement or in any certificate, instrument, agreement, guarantee or other document furnished or to be furnished to PMT hereunder or in connection with the transactions contemplated hereby; and (iii) any and all actions, suits, proceedings, demands, assessments and judgments relating, directly or indirectly, to the foregoing, and any and all costs and expenses reasonably incurred by PMT (including, by way of example and not limitation, all legal and accounting fees and court costs) incidental, directly or indirectly, to the foregoing.
8. Software License Grant. PMT grants to IC a limited, non-exclusive, non-transferable, non-assignable right and license solely for the purposes set forth and subject to the terms and conditions contained in this Agreement, to access the PMT website, travel portals and other PMT provided software, systems or technology, including any related updates or supplements, associated media, printed materials and “online” or electronic documentation, (“Software Product”) for use by IC, IC’s employees, agents, contractors and/or representatives with access to the Software Product. This license may not be shared with third parties other than those designated by IC and registered with PMT. IC may not reverse engineer, decompile, or disassemble any version of the Software Product or any part thereof. IC agrees and acknowledges that PMT shall be entitled to suspend IC’s access to any PMT Software Product at any time, without cause and without termination of this Agreement. PMT takes no responsibility for content provided by third parties appearing on any PMT Software Product or other PMT systems or technology (including, without limitation, any viruses or other disabling features), nor does PMT have any obligation to monitor such third-party content. PMT reserves the right at all times to remove or refuse to distribute any content, including but not limited to content that violates the terms of this Agreement. PMT also reserves the right to access, monitor, read, preserve, share and disclose any information created or stored within PMT systems or technology, including but not limited to messages or comments, customer and agent records and information, websites, emails, forum and instant messages, voicemails and telephone conversations as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests or customer service matters, e) meet universal servicing requirements or (f) protect the rights, property or safety of PMT, its users and the public. IC has no expectation of privacy in anything it creates, stores, sends or receives using any PMT system or technology. Without limitation, PMT is not responsible or liable for any direct or indirect loss of business or inconveniences resulting from malfunctions, failures, delays, software or hardware failures, programming bugs, downtime or maintenance of any PMT Software Product, provided system or technology including but not limited to paymetravel.com, email, web page hosting, telephone lines, intranet or internet access. PMT is not responsible for nonperformance caused by acts of God or governmental authority, strike or labor disputes, breach of contract by suppliers, or any other cause beyond the reasonable control of PMT. PMT will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement. IC accepts the Software Product on an “as is” basis. PMT makes no warranty or representation regarding the Software Products.
9. Limitation of Liability. In no event shall PMT be liable to the IC for any special, incidental, consequential, punitive or exemplary damages, whether arising in contract, tort (including negligence and strict liability) or otherwise, and whether or not either party was advised of the possibility of such damage. PMT shall not be liable to IC or any third party for any of the acts or omissions of IC or IC’s employees, agents, contractors or representatives. IC waives all claims for payments from PMT including but not limited to compensation, regardless of whether the sales are made by IC or others, if a claim for payment of the specific item is not made in writing within thirty (30) days of the termination of this Agreement, as allowed by governing state law.
10. Warranties & Representations. The IC represents and warrants that IC has the full legal power and authority to enter into this Agreement, and/or to perform its obligations, and by entering into this Agreement, IC does not violate any other agreement, promise or covenant including without limitation, any non-compete, conflict of interest or personal services contract in which IC is a party; and IC does not have any existing obligation to others that might be inconsistent with any of the provisions in this Agreement, and all information provided by IC to PMT, including without limitation information relating to its background, references, experience and abilities, is true and accurate. This Agreement shall not be assignable by the IC without the written consent of PMT.
11. Notices, Waiver & Severability. All notices and other communications hereunder must be in writing. All notices shall be given by delivery in person, by a nationally recognized next day courier service, by first class, registered or certified mail, via facsimile or by electronic mail to the address of the party specified in this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, or any future legislation causes any of the foregoing, the remaining provisions shall continue in full force without being impaired or invalidated in any manner. No failure of PMT to enforce any term of this Agreement will be deemed to be a waiver. All waivers of this Agreement or any part hereof must be in writing. No waiver of rights under this Agreement by PMT shall constitute a subsequent waiver of such right or any other right under this Agreement.
12. Attorney’s Fees, Governing Law & Jurisdiction. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs. This Agreement shall be governed and construed in accordance with Florida law. For all purposes, jurisdiction and venue shall be the state and federal courts situated in Palm Beach County, Florida, as the parties agree that this is the proper jurisdiction and venue for any action relating to this Agreement.
13. Non-Assignability. This Agreement shall not be assignable by the IC without the written consent of PMT.
14. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for the convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
15. Entire Agreement. The parties acknowledge that this Agreement expresses their entire understanding and agreement, and that there have been no warranties, representations, covenants or understandings made by either party to the other except such as are expressly set forth herein. The parties further acknowledge that this Agreement supersedes, terminates and otherwise renders null and void any and all prior agreements or contracts, whether written or oral, entered into between IC and PMT with respect to the matters expressly set forth in this Agreement. This Agreement may only be amended in writing and signed by an authorized representative of each party.
Understood, Agreed & Accepted
I have carefully reviewed this agreement, warrant I am authorized to sign and agree to and accept all of its terms and conditions as of current date.