This independent contractor agreement (the “Agreement”) is made and entered into as of May 15th, 2021 between DeepFeet Bar Therapy (the “Company”), a continuing massage education company and Kathryn Cady (the “Contractor”)
The Company requests the Contractor to perform services for it and may request the Contractor to perform other services in the future; and
The Parties therefore agree as follows:
1.0.Term and Termination.
1.1. This Agreement takes effect immediately as of the Effective Date, and remains in full force and effect until June 1st, 2022, and auto-renews each year for a total of 5 years. Either party may terminate this contract with 90 days written notice.
1.2. Either Party may terminate this Agreement for cause by providing the other Party written notice if the other Party: (i) is in material breach of this Agreement and has failed to cure such breach within five (5) days after its receipt of written notice of such breach provided by the non-breaching Party; (ii) engages in any unlawful business practice related to that Party's performance under the Agreement; or (iii) files a petition for bankruptcy, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or has a receiver, trustee or similar party appointed for its property.
2.1. During the Term, the Company may engage the Contractor to provide the following services as needed (the "Services"), or other such services as mutually agreed upon in writing by the Parties (email is acceptable):
Services provided by the contractor:
- Conducts ashiatsu restore courses under the Deepfeet umbrella.
- Email & Phone Correspondence with students enrolled in ashi restore classes.
- Confirmation that proper bars and equipment are installed before the course start date
- Carries commercial and professional liability insurance for their building and teaching.
2.2. The Contractor shall provide the necessary equipment to perform the Services. If the Contractor has obtained employees or agents (the "Contractor Personnel"), the Contractor shall be solely responsible for all costs associated with the Contractor Personnel.
Describe all of the services the contractor is expected to perform under this agreement:
The commitment of Time and Intellectual Development
- Continued development of the manual to include collaboration and input from DeepFeet to completion prior to class offerings
- 1 free proctor class currently scheduled May 4-7th (Maybe rescheduled due to force majeure, including government closures or mandates, attendee scheduling conflict, illness or family crisis of Kathryn Cady)
- 1 additional proctor class, if determined helpful and necessary, to be completed at half price
- Commitment to collaborating in the development of the online curriculum
- Possible filming
- Online portal collaboration
- Commitment by Kathryn Cady to teach each course at a minimum of 4 times a year with the intent to teach the courses 6 times per year, or more if/when offered online (Maybe less due to force majeure, including government closures or mandates, attendee scheduling conflict, illness or family crisis of Kathryn Cady with no consequence)
- Compensation for teaching the course, online or in-person, to be commensurate with the current compensation package offered to current instructors for DeepFeet
- Compensation for teaching the course will be in addition to the ongoing fees proposed above
- The commitment of Kathryn Cady to instruct other instructors for DeepFeet on how to teach proposed courses
- Compensation for teacher training to be commensurate with other instructors, and previous instructors, training other instructors
- Commitment to come for a retreat to teach instructors as a group
- Airfare and accommodations paid with compensation for a time teaching the class.
- Commitment to engage in ongoing support and marketing of the course
- 1 – 1 hour max Zoom Meeting Per Month
- Support for potential students and graduates not to exceed 4 hours per month including the proposed Zoom meeting
2.3 As a result of providing the Services, the Contractor or Contractor Personnel may create a certain work product (the "Work Product").
2.4. The Contractor shall notify the Company of any change(s) to the Contractor’s schedule that could adversely affect the availability of the Contractor, whether known or unknown at the time of this Agreement, no later than 14 days prior to such change(s). If the Contractor becomes aware of such change(s) within the 14 day period, the Contractor shall promptly notify the Company of such change(s) within a reasonable amount of time.
2.5. The work performed by the Contractor shall be performed at the following rate:
- 7.5% of the total price of mat courses, IE: $500 class = $37.50 fee to Kathryn Cady
- Ashi Restore (proposed names)
- Beginner & Advanced
- Or Beginner & Stretch
- 10% of the total price of the aerial courses, IE: $500 class = $50 fee to Kathryn Cady
- Aerial Atsu (proposed names)
- 10% possible profits for any additional courses proposed by Kathryn Cady and accepted into the DeepFeet course offerings
- Kids Restore
- Kids Aerial Restore
- Class fees commensurate with current DeepFeet course offerings.
2.6. The Company shall not be responsible for federal, state and local taxes derived from the Contractor's net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers' compensation, disability benefits or other legal requirements applicable to the Contractor.
3.0.Independent Contractor Status.
3.1. The Parties intend that the Contractor and any Contractor Personnel be engaged as independent contractors of Company. Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
3.2. The Contractor may not act as agent for, or on behalf of, the Company, or to represent the Company, or bind the Company in any manner.
3.3. The Contractor will not be entitled to worker's compensation, retirement, insurance or other benefits afforded to employees of the Company.
4.1. The Parties intend that to the extent the Work Product or a portion of the Work Product qualifies as a "work made for hire," within the definition of Section 101 of the Copyright Act of the United States (17 U.S.C. § 101), it will be so deemed a work made for hire. If the Work Product or any portion of the Work Product does not qualify as work made for hire, and/or as otherwise necessary to ensure the Company's complete ownership of all rights, titles, and interest in the Work Product, the Contractor shall transfer and assign to the Company all rights, titles and interests throughout the world in and to any and all Work Product. This transfer and assignment include, but is not limited to, the right to publish, distribute, make derivative works of, edit, alter, or otherwise use the Work Product in any way the Company sees fit.
4.2. The Company grants the Contractor, a limited, non-exclusive, non-transferable, non-assignable, royalty free, worldwide license to display the Work Product on a platform personally controlled, in whole or in part, by the Contractor. The Company may revoke this license at any time by requesting the removal of the Work Product displayed by the Contractor. Upon such request, the Contractor shall remove the Work Product from the platform, and provide written notification of such removal.
5.0. Representations. Both Parties represent that they are fully authorized and empowered to enter into this Agreement and that the performance of the obligations under this Agreement will not violate or infringe upon the rights of any third-party, or violate any agreement between the Parties and any other person, firm or organization or any law or governmental regulation.
6.0. Indemnification. The Contractor shall indemnify and hold harmless the Company, its affiliates, and its respective officers, directors, agents and employees from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of or relating to, the Contractor’s services under this Agreement.
7.1 Each Party (on its behalf and on behalf of its subcontractors, employees or representatives, or agents of any kind) agrees to hold and treat all confidential information of the other Party, including, but not limited to, trade secrets, sales figures, employee and customer information and any other information that the receiving Party reasonably should know is confidential (“Confidential Information”) as confidential and protect the Confidential Information with the same degree of care as each Party uses to protect its own Confidential Information of like nature.
7.2 Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publically available sources generally known by the public (other than as a result of a disclosure by the receiving Party or its representatives); (ii) is available to the receiving Party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving Party without violating its obligations under this Agreement or under any federal or state law.
8.0. Liability. EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.
9.0. Disclaimer of Warranty. THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. EACH PARTY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY DOES NOT PROVIDE ANY WARRANTY THAT OPERATION OF ANY SERVICES HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE.
10.0 Miscellaneous Provisions.
10.1. This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.
10.2. This Agreement may be amended only by written agreement duly executed by an authorized representative of each party (email is acceptable).
10.3. If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.
10.4. This Agreement shall not be assigned by either party without the express consent of the other party.
10.5. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
10.6. This Agreement is be governed by and construed in accordance with the laws of the State of Oregon without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either party arising out of this Agreement will only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in the State of Oregon. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN THE STATE OF OREGON.
The Parties are signing this Agreement on the date stated in the introductory clause.