Dance2Fit Certified Instructor Agreement
This Independent Contractor Agreement (the "Agreement")
is entered into by and between Dance2Fit, LLC, having its principal place of business at 8079 Kingston Pike, Knoxville (Knox County), Tennessee 37923 (Dance2Fit) and ("Certified Instructor")
WHEREAS, Company is a Tennessee limited liability company organized to teach dance and fitness in the State of Tennessee and is maintaining an ongoing dance and fitness studio at 8079 Kingston Pike, Knoxville (Knox County), Tennessee 37923.
WHEREAS, Certified Instructor is eligible, and duly authorized, to teach as a dance and fitness Instructor and desires to become a Certified Instructor for Company;
WHEREAS, Company desires to certify Certified Instructor and Certified Instructor desires to accept such certification from Company on the terms set forth in this Agreement;
WHEREAS, Company and Certified Instructor desires to enter into this Agreement for the purpose of setting forth the provisions under which Certified Instructor will become a Certified Instructor by Company during the term of this Agreement.
In consideration of the premises and mutual covenants hereinafter contained, the parties hereto agree as follow
1. THE SERVICES
Certified Instructor agrees to perform the services as set forth herein (the “Services”). Certified Instructor represents and warrants that: (i) Certified Instructor has all requisite power and authority to execute and deliver this Agreement and to perform and satisfy Certified Instructor’s duties and responsibilities as proscribed by Company to lawfully perform and satisfy such duties and responsibilities; and (ii) this Agreement constitutes Certified Instructor’s valid and legally binding obligation enforceable against her in accordance with its terms.
(a) Standard of Care. All services rendered by Certified Instructor shall be in accordance with commonly accepted methods and practices. Certified Instructor shall carry out her responsibilities in a fashion that supports the interests of good client care.
(b) Compliance with Studio and Company Rules. Certified Instructor shall comply with (i) all applicable requirements of Company’s compliance plans and programs (the “Plan”); (ii) all applicable provisions of law and rules and regulations promulgated by any and all governmental authorities thereunder; and (iii) as applicable, the ethical codes of conduct. If Certified Instructor becomes aware of any fact or circumstance that constitutes or creates a significant risk of a violation of any of the foregoing, whether by Certified Instructor or any other party, she shall promptly call it to the attention of the Company.
(c) Privacy Compliance. Certified Instructor shall comply, and take reasonable steps to assure that Certified Instructor, complies with applicable state and federal laws and regulations relating to the security, protection and privacy of individually identifiable personal information.
(d) Certification. Certified Instructor shall, at her sole cost and expense, maintain proper professional licensure, if required, and Dance2Fit certification, including completion of required continuing education to maintain such licensure and certification.
2. WORK FOR HIRE.
It is the intention of the parties hereto that all rights, with the sole exceptions provided in Section 3 below, in any financial and/or administrative reports, surveys, marketing promotional and collateral materials prepared by Certified Instructor pursuant to the terms of this Agreement, or otherwise for Company (hereinafter “the Work”) vest in Company.
3. PROPRIETARY INFORMATION.
(a) For purposes of this Agreement, “proprietary information” shall mean any information, specifically supplied to Certified Instructor hereunder, relating to the business of Company or any entity in which Company has a controlling interest and shall include (but shall not be limited to) information encompassed in all drawings, designs, programs, plans, formulas, proposals, marketing and sales plans, financial information, administrative information, costs, pricing information, customer information, and all methods, concepts or ideas in or reasonably related to the business of the Company.
(b) Certified Instructor agrees to regard and preserve as confidential, all proprietary information, whether Certified Instructor has such information in memory or in writing or other physical form. Certified Instructor shall not, without written authority from Company to do so, directly or indirectly, use for the benefit or purposes, nor disclose to others, either during the term of its engagement hereunder or thereafter, except as required by the conditions of Instructor’s engagement hereunder, any proprietary information. However, Certified Instructor may disclose information in order to comply with any applicable laws or to comply with lawful state and/or federal government requests for information. Certified Instructor also reserves the right to report to law enforcement any suspected illegal activity by the Company that it becomes aware of.
(c) Certified Instructor shall not disclose any reports, recommendations, conclusions or other results of the Services or the existence or the subject matter of this contract, without the prior written consent of Company.
(d) The foregoing obligations of this Paragraph 3 shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information, (ii) is, through no fault of Certified Instructor, hereafter disclosed in publicly available sources of information, (iii) is now in the possession of Certified Instructor without any obligation or confidentiality, or (iv) has been or is hereafter lawfully disclosed to Certified Instructor by any third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party.
4. AGREEMENT NOT TO COMPETE/NON-SOLICITATION PROVISION.
(a) Agreement Not to Compete. For purposes of this Agreement, the term “Prohibited Term” means the period beginning as of the effective date of this Agreement through the date that is one (1) year after the termination date of this Agreement. During the Prohibited Term, neither Certified Instructor nor any Related Party (as hereinafter defined) shall obtain any Financial Benefit (as hereinafter defined) from any Competing Business (as hereinafter defined) within the Restricted Territory.
(i) A “Related Party” includes a controlled person, partnership, corporation or other entity in which Certified Instructor has any interest, whether direct or indirect.
(ii) A “Competing Business” is an entity that, directly or indirectly, competes with the Company’s dance and fitness business or which provides services which are directly or indirectly competitive with the Company’s dance and fitness business.
(iii) A “Financial Benefit” shall include, but shall not be limited to, wages, salary, referral fees, consultation fees or any other payment or financial benefit from any entity, firm, or business, which competes directly or indirectly with the Company’s dance and fitness business.
(iv) “Restricted Territory” shall mean a one-hundred (100) mile radius, of any Dance2Fit, LLC. In any case, Certified Instructor shall, in no case, utilize any of the methods or techniques learned from Company during the term of this Agreement.
(b) Agreement Not to Solicit Clients. For these purposes, the term “Client” shall mean any client (i.e., consumer for which services are or have been performed, including individuals, corporations, partnerships, entities, firms and developers who have engaged the Company) who has utilized the services of the Company in any respect. Certified Instructor agrees that during the Prohibited Term (and except as authorized in this Agreement by the Company), she will not solicit, divert, appropriate or accept, whether individually or in conjunction with others, any business from any Client of the Company who was or is a Client of the Company during the Prohibited Term.
(c) Agreement Not to Solicit Certified Instructors. Certified Instructor agrees during the Prohibited Term not to solicit, divert, hire, or attempt to solicit, divert or hire any person who was an employee and/or Instructor of the Company at any time during the Prohibited Term.
(d) Remedies. Certified Instructor agrees that the covenants contained in this Section 4 are an essential part of this Agreement, represent a material inducement for the Company to enter into this Agreement, and that the Company would not be willing to enter into this Agreement without the provisions of this Section 4. A breach of the covenants contained herein by Certified Instructor will represent irreparable loss and damage to the Company. Therefore, Certified Instructor agrees and consents that in addition to any and all remedies provided by law or in equity or elsewhere in this Agreement, the Company shall be entitled to all equitable relief (including but not limited to injunctions and restraining orders) to prevent or terminate a breach or contemplated breach of these covenants.
(e) Severability. The parties hereto agree that to the extent any provision of this Section 4 shall be held, found or deemed to be unreasonable, unlawful or unenforceable by a court of competent jurisdiction or an arbitrator, then any such provision shall be deemed to be modified to the extent necessary in order that any such provision shall be legally enforceable to the fullest extent permitted by applicable law, and the parties agree that any court or arbitrator is authorized, requested and empowered to enforce any such provision or modify any such provision in order that such provision shall be enforced to the fullest extent permitted by applicable law.
Certified Instructor shall pay Company a one-time registration fee in the amount of $99.00. Thereafter, Certified Instructor shall pay a monthly payment in the amount of $20.00, to maintain said certification. Failure to pay the aforementioned monthly fee shall result in the immediate revocation of the Dance2Fit certification. Certified Instructors shall maintain said certification for a minimum of one (1) year, or Certified Instructor shall pay a cancellation fee in the amount of $250.00, to Company. Moreover, Certified Instructor shall not sell, reproduce, copy, distribute, and the like, any apparel or other materials, whatsoever, unless purchased from Company and sold and the proscribed price. Company retains and reserves all copyright, trademark and other intellectual property rights to all apparel and materials.
6. INDEPENDENT CONTRACTOR STATUS.
(a) Certified Instructor acknowledges and agrees that she is an independent contractor and not an employee of the Company and that it is Certified Instructor’s sole obligation to report as income all compensation minus expenses received by her from the Company pursuant to this Agreement. Certified Instructor further agrees that the Company shall not be obligated to pay withholding taxes, social security, unemployment taxes, disability insurance premiums, or similar items, in connection with any payments made to Certified Instructor by her clients. Certified Instructor further acknowledges and understands that the Company will not, under any circumstances, provide insurance coverage, liability insurance coverage, workers compensation insurance coverage, health insurance coverage, hospitalization insurance coverage and/or any other type of insurance coverage as part of this Agreement. If Certified Instructor desires such insurance, it shall be the sole obligation of Certified Instructor to obtain such insurance at her own expense and in her own name.
(b) Certified Instructor further acknowledges that she will provide all documentation necessary for her to perform her duties in accordance with the terms of this Agreement. Even though Company shall be providing Certified Instructor with a Dance2Fit Certification in accordance with this Agreement, this assistance by Company will in no way change the independent contract relationship between the Company and Certified Instructor.
(c) Nothing contained in this Agreement shall be construed as creating an employer/employee relationship between Company and Certified Instructor, nor shall this Agreement be construed to create any form of employment contract between the Company and Certified Instructor. Furthermore, Certified Instructor expressly agrees that she is not an employee of the Company.
7. (i) TERMINATION OF AGREEMENT.
Agreement shall be effective beginning as of the date of this Agreement and shall continue (except as otherwise provided for in this Agreement). Irrespective of anything to the contrary contained herein, the Company may terminate this Agreement in whole or in part at any time.(the “Term”).
(ii) Conviction of Certified Instructor of any felonious crime in any federal or state jurisdiction of the United States of America;
(iii) A finding of unprofessional, unethical, or fraudulent conduct by Certified Instructor by any professional society of such conduct;
i. In the event, due to death, disability or any other circumstances beyond Certified Instructor's control, Certified Instructor shall be unable to perform her duties under this Agreement;
ii. The intentional and/or grossly negligent act(s) of Certified Instructor which materially damages the Company.
Certified Instructor represents and warrants that: (i) all of the services to be performed by her hereunder will be rendered using sound, professional practices and in a competent and professional manner; (ii) Wear only approved Dance2Fit approval while instructing classes; and (iii) Certified Instructor will comply with all applicable federal, state and local laws in the performance of her obligations hereunder.
Certified Instructor agrees to indemnify and hold the Company harmless against any liability, damage, cost or expense (including costs and reasonable attorney’s fees) occasioned by or arising out of any claim, demand or action arising from any negligent and/or intentional acts and/or omissions of Certified Instructor and/or any willful misconduct of Certified Instructor or out of any action or inaction inconsistent with any agreement, representation or warranty made or assumed by Certified Instructor hereunder which is reduced to final judgment or settled with the indemnifying party’s written consent, which consent shall not be unreasonably withheld.
All notices and bills shall be in writing and sent via first class mail to the respective addresses of the parties set forth at the beginning of this Agreement or to such other address as any party may designate by notice delivered hereunder to the other party.
11. FORCE MAJEURE.
Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such party (“Force Majeure”).
a. The terms and conditions of Sections 2, 3, 4, 6, 8 and 9 hereof shall survive the termination of this Agreement.
b. Certified Instructor shall not assign this Agreement nor delegate her duties hereunder and shall not subcontract any of the Services to be performed hereunder without the prior written consent of the Company.
c. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.
d. This Agreement shall be governed by the laws of the State of Tennessee. The venue for any action hereunder shall be the state and federal courts located in Knoxville, Knox County, Tennessee.
e. This Agreement constitutes the entire understanding between Certified Certified Instructor and the Company respecting the Services described herein and may not be modified except in a writing signed by all parties hereto. The terms and conditions of any purchase order or invoice shall have no effect upon this Agreement and shall be used for accounting purposes only.
f. The failure of either party to exercise its rights under this Agreement shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach.
g. Titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way limit, define, extend or prescribe the scope of this Agreement or the intent of any provision.
h. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
i. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs and personal representatives and their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
For New York Residents only: This document is not an offering. An offering can only be made by a prospectus filed first with the Department of Law of the State of New York. Such filing does not constitute approval by the Department of Law.