INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT (“Agreement”) is between the party written on the signature page and its successors or assigns (“Contractor”) and EXPERT NOTARY SIGNERS, INC., a California corporation, d/b/a ENS Inc. (the “Company”) as of the date written on the signature page (the “Effective Date”).
1. Engagement of Services. Contractor’s duties and responsibilities shall be to perform the services set forth on Exhibit A, and such other services that Company may request from Contractor from time to time (the “Services”). The manner, means, details and method by which Contractor chooses to complete the Services are in Contractor's sole discretion and control. Contractor agrees to exercise the highest degree of professionalism, and to utilize Contractor’s expertise and creative talents in completing such Services. In completing the Services, Contractor agrees to provide Contractor’s own equipment, tools and other materials at Contractor’s own expense. Contractor shall perform the services necessary to complete the Services in a timely and professional manner consistent with industry standards and in compliance with
(a) reasonable rules and regulations adopted by Company; and
(b) all applicable laws and regulations issued by local, state or federal authorities and laws, rules, and standards set by applicable notary licensing groups.
Such Services shall be performed at a place and time which the Contractor deems appropriate and as agreed with the clients of Company and Contractor. Contractor may not subcontract or otherwise delegate Contractor’s obligations under this Agreement without Company's prior written consent.
2. Compensation. Company shall pay Contractor in accordance with the terms and conditions set forth in Exhibit A for providing the Services. Contractor shall be responsible for all expenses incurred in performing Services under this Agreement, other than those expenses previously approved by Company’s President in writing. Company will pay the Contractor for Services within thirty (30) days of the provision of Services and will reimburse the Contractor for expenses previously approved in writing within thirty (30) days of the date of the Company’s receipt of the Contractor’s invoice.
3. Independent Contractor Relationship. Contractor’s relationship with Company will be that of an independent contractor, and nothing in this Agreement shall be construed to create a partnership, joint venture or employer-employee relationship. Contractor, in Contractor’s capacity as a notary, is not the agent of Company and is not authorized to make any representation, contract or commitment on behalf of Company. Contractor will not be entitled to any of the benefits which Company may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Contractor’s performance of services and receipt of fees under this Agreement. Company will regularly report amounts paid to Contractor by filing Form 1099-MISC with the Internal Revenue Service and as otherwise required by applicable law. Because Contractor is an independent contractor, Company will not withhold or make payments for Social Security; make unemployment insurance or disability insurance contributions; or obtain worker’s compensation insurance on Contractor’s behalf. Contractor shall be responsible for providing its own insurance coverage for Contractor and its employees, contractors, and agents, if applicable. Contractor agrees to accept exclusive liability for complying with all applicable local, county, state and federal laws governing self-employed individuals, including payment of compensation to Contractor’s employees, contractors, and agents, if applicable, and taxes, Social Security, disability and other contributions based on fees paid to Contractor under this Agreement. Contractor hereby agrees to indemnify, defend, protect and hold wholly harmless Company against any and all such taxes or contributions, including attorneys’ fees, penalties and interest.
4. Trade Secrets – Intellectual Property Rights
a) Confidential Information. Contractor agrees during the term of this Agreement and for two (2) years thereafter that Contractor will take all steps reasonably necessary to hold Company’s Confidential Information in trust and confidence, will not use Confidential Information in any manner or for any purpose not expressly set forth in this Agreement, and will not disclose any such Confidential Information to any third party without first obtaining Company’s express written consent on a case-by-case basis. By way of illustration, but not limitation, “Confidential Information” includes the following:
(i) trade secrets, inventions, works, mark-ups, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (collectively referred to as “Inventions”);
(ii) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and
(iii) information regarding the identity, skills and compensation of other employees and contractors of Company.
Notwithstanding the other provisions of this Agreement, nothing received by Contractor will be considered to be Company’s Confidential Information if
(1) it has been published or is otherwise readily available to the public other than by a breach of this Agreement;
(2) it has been rightfully received by Contractor from a third party without confidential limitations;
(3) it has been independently developed for Contractor by personnel or agents having no access to Company’s Confidential Information; or
(4) it was known to Contractor prior to Contractor’s first receipt from Company.
b) Third Party Information. Contractor understands that Company may receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty, on Company’s part, to maintain the confidentiality of such information and use it only for certain limited purposes (e.g., Company’s privacy policy). Contractor agrees to hold Third Party Information in strict confidence and not to disclose to anyone (other than Company personnel who need to know such information in connection with the performance of their work for Company) or to use, except in connection with the Services, Third Party Information unless expressly authorized in writing by Company’s President or as otherwise required by applicable law.
c) No Conflict of Interest. During the Term (as defined below), Contractor may provide services to other parties, but Contractor agrees not to accept work or enter into a contract or accept an obligation, inconsistent or incompatible with Contractor’s obligations under this Agreement or the scope of services rendered for Company. Contractor warrants that to the best of Contractor’s knowledge, there is no other existing contract or duty on Contractor’s part inconsistent with this Agreement. Contractor further agrees not to disclose to Company, or induce Company to use any confidential information that belongs to anyone other than Company or Contractor. Contractor further agrees that for the Term hereof and for one (l) year after termination thereof, Contractor will not disrupt or interfere with the business of the Company by directly or indirectly soliciting, recruiting, attempting to recruit, or raiding the employees or customers of the Company or otherwise inducing the termination of employment of any employee of the Company or agreement with any customers of the Company, except pursuant to a general public employment solicitation.
5. Contractor Representations and Warranties. Contractor hereby represents and warrants that:
(a) Contractor has full right and power to enter into and perform this Agreement without the consent of any third party;
(b) Contractor will take all necessary precautions to prevent injury to any persons (including employees of Company) or damage to property (including Company’s property) while performing Services during the Term;
(c) should Company permit Contractor to use any of Company’s equipment, tools, or facilities during the term of this Agreement, such permission shall be gratuitous, and Contractor shall be responsible for any injury to any person (including death) or damage to property (including Company's property) arising out of use of such equipment, tools or facilities by Contractor, whether or not such claim is based upon its condition or on the alleged negligence of Company in permitting its use; and
(d) Contractor is duly licensed and has obtained all permits and/or permissions as required by law and by all applicable agencies and licensing bodies to perform the Services and all other obligations under this Agreement and is in compliance with all applicable laws.
6. Indemnification. Contractor hereby agrees to indemnify, defend, protect and hold wholly harmless Company, its members, shareholders, officers, directors, managers, employees, sublicensees, customers and agents from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) which result from (i) any gross negligence or willful misconduct by Contractor or its employees, contractors, or agents, if applicable, arising from or in connection with Contractor’s obligations under this Agreement; (ii) Contractor’s breach of any of its representations, warranties, obligations or duties under this agreement (collectively, the “Claims”), provided that Company gives Contractor written notice of any such Claim, and Contractor has the right to participate in the defense of any such Claim at Contractor’s expense.
7. Term and Termination.
a) Term. This Agreement will commence as of the Effective Date and continues for a period of one (1) year (the “Term”), unless earlier terminated pursuant to Section 7(b). The Term shall automatically renew for successive one (1) year periods, subject to earlier termination by the Parties as stated in Section 7(b).
b) Termination by Either Party. Either party may terminate this Agreement at its convenience and without any breach by the other party upon seven (7) days’ advance written notice to the other party. Company may also terminate this Agreement immediately in its sole discretion upon Contractor’s material breach of this Agreement.
c) Return of Company Property. Upon termination of the Agreement or earlier as requested by Company, Contractor will promptly deliver to Company any and all notes, memoranda, specifications, formulas, computer hardware, disks or drives containing software, and documents, together with all copies thereof, and any other material containing or disclosing any Third Party Information or Confidential Information of Company. Contractor further agrees that any property situated on Company's premises and owned by Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice.
d) Documentation. Upon notice of intent to terminate this Agreement by either party, Contractor shall document, in writing, the ongoing work Contractor is engaged in on behalf of Company. This documentation shall include at a minimum:
(i) lists of any login information including usernames and passwords needed to complete the tasks, and
ii) step-by-step instructions of how to complete such tasks so that a person of similar experience, ability and know-how would be able to complete such tasks.
8. General Provisions.
a) Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California as applied to transactions taking place wholly within California between California residents, without regard to any conflict of law principles. Contractor hereby expressly consents to the personal jurisdiction of the state and federal courts located in Orange County, California, for any lawsuit filed there against Contractor by Company arising from or related to this Agreement but only to enforce an arbitration or its award under Section 8(e).
b) Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If, moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
c) No Assignment. This Agreement may not be assigned by Contractor without Company’s consent, and any such attempted assignment shall be void and of no effect. This Agreement, and any rights hereunder, may be assigned, in whole or in part, by the Company without Contractor’s consent.
d) Notices. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. The mailing address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section.
e) Dispute Resolution. In the event of a dispute, Company may withhold only the reasonable value of the amount under dispute, including any amount incurred by Company to correct Contractor’s breach. The parties will immediately make authorized personnel available to meet and make good faith attempts to resolve the dispute. If within thirty (30) calendar days the dispute is not resolved, either party may commence an action for breach of the Agreement. Any such dispute between the parties related to this Agreement, its attachments or the transaction contemplated herein shall be settled by binding arbitration. The parties shall designate one (1) arbitrator, or, if they cannot agree upon an arbitrator, each party, or group of parties having a common position, shall designate an arbitrator, and the designated arbitrators shall agree upon an additional arbitrator or arbitrators sufficient in number to together constitute a panel having an uneven number of arbitrators. If no panel of arbitrators can be selected, arbitration shall be conducted by an arbitrator appointed by JAMS, who shall reach a decision employing its Comprehensive Arbitration Rules and Procedures. Without limiting the foregoing, the arbitration ruling shall assess costs and any attorneys’ fees and shall be binding upon the parties. The prevailing party shall be entitled to its costs and expenses, including but not limited to reasonable attorneys’ fees, incurred in connection with such action. Any such arbitration shall occur in Orange County, California.
f) Injunctive Relief. A breach of any of the promises or agreements contained in this Agreement may result in irreparable and continuing damage to Company for which there may be no adequate remedy at law, and Company is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
g) Survival. The following provisions shall survive termination of this Agreement: Sections 3 through 8.
h) Waiver. No waiver by Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by Company of any right under this Agreement shall be construed as a waiver of any other right. Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
i) Gender. Any words importing masculine, feminine, or neutral gender shall include the masculine, feminine, or neutral counterpart as applicable, and shall be interpreted to include any and all genders, or, in appropriate cases, business entities.
j) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all Services undertaken by Contractor for Company. This Agreement may be executed in one or more a counterparts, and delivered electronically or by facsimile, each of which will be deemed an original.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties have caused this Independent Contractor Agreement to be executed effective as of ________________________, 20____.
COMPANY:
EXPERT NOTARY SIGNERS, INC., a California corporation, d/b/a ENS Inc.
By: __________________________________
Kevin Stead, President
Address: P.O. Box 3023
Costa Mesa, CA 92628
CONTRACTOR:
Company (if applicable): ________________
By: ________________________________
Name of Signatory: ___________________
Title of Signatory (if applicable): _________
Address: _____________________________
____________________________________
[SIGNATURE PAGE TO INDEPENDENT CONTRACTOR AGREEMENT]
EXHIBIT A
DUTIES, SPECIFICATIONS, AND COMPENSATION FOR NOTARIES
1. Duties. The Contractor agrees to provide the following Services pursuant to the terms of the Agreement:
a) Upon receiving notice from the Company of any individual order (“Notary Assignment”) by a client who has engaged the Company to coordinate or provide notary services (“Client”), the Contractor and the Company shall determine certain notary services to be performed by the Contractor necessary for the completion of the Notary Assignment at a mutually agreed-upon price. The specific terms of each Notary Assignment, including but not limited to the identity of the Client, the documents that must be notarized (which may be provided either by the Company or the Client), the time frame by which notarization must be completed, and the amount of payment the Company will pay to the Contractor for such Notary Assignment will be mutually agreed upon at such time (“Project Terms”). Once Project Terms are agreed upon, the Company shall send a copy of the Notary Assignment with the Project Terms to the Contractor by email. If the Contractor does not provide any corrections to the emailed Notary Assignment within four (4) hours of its sending during normal business hours (seven days per week, 7:00 AM – 7:00 PM in the Contractor’s local time zone, and such time shall extend to the next day’s normal business hours, if such four [4] hour period extends beyond the normal business hours of the date the emailed Notary Assignment is sent), the Contractor shall be deemed to have accepted the Project Terms as stated in the emailed Notary Assignment. Upon acceptance of the Notary Assignment by the Contractor, the Contractor is obligated to perform such Notary Assignment in accordance with this Agreement and such Project Terms, unless such Project Terms are subsequently amended in writing.
b) If Contractor is unable to perform a Notary Assignment after the Project Terms have been agreed upon, Contractor must notify the Company of its unavailability immediately. Contractor shall not be paid for any such incomplete Notary Assignment. If Contractor provides such notice less than three (3) hours before the scheduled time for such Notary Assignment, Contractor shall be liable in full for any costs incurred by Company to find and retain a replacement notary, and Contractor consents to Company offsetting such expense against any amounts owed to Contractor. Such remedy is non-exclusive and shall not extinguish Contractor’s liability for any other amounts owed.
c) After completing any tasks specified in the Notary Assignment, the Contractor shall timely provide the Company with any related paperwork, filings, payment receipts, confirmations, or any other related document(s) as reasonably requested by the Company at no extra charge, including scanning and emailing all such documents to the Company after performing the Notary Assignment.
d) If the Company notifies the Contractor of any error (in the Company’s reasonable judgment) in any Services provided by the Contractor, the Contractor shall cure such error immediately, but in no event later than twenty-four (24) hours from any such oral or written notification from the Company or a reasonable amount of time agreed upon by both parties, at the Contractor’s sole expense. If Contractor fails to cure such error in the time period provided, Company may engage another party to cure such error at Contractor’s sole expense. Contractor consents to Company offsetting such expense against any amounts owed to Contractor. Such remedy is non-exclusive and shall not extinguish Contractor’s liability for any other amounts owed. If Contractor fails to perform any portion of the Notary Assignment that is not able to be corrected or unilaterally alters any portion of the Notary Assignment without Company’s written consent or otherwise deviates from the Project Terms without Company’s written waiver, Contractor forfeits any payment due from Company for such Notary Assignment.
e) The Contractor shall at all times maintain as active and in good-standing all licenses, insurances, permits, certifications, and other authorizations necessary to provide all Services hereunder according to applicable laws and rules in the jurisdiction in which it is performing, including but not limited to a notary commission, a notary bond, E & O insurance, background check and NNA certification.
f) If at any time during the Term of this Agreement, the Contractor has actual or constructive knowledge that any license, permit, certification, insurance policy, or any other authorization required to provide the Services hereunder has expired, been suspended, been revoked or is invalid or inactive for any reason, the Contractor will notify the Company in writing immediately, but in any event within three (3) business days. Failure to do so shall be a material breach under this Agreement.
g) The Contractor shall at all times properly maintain all materials and equipment used in performing the Services hereunder and ensure that all such materials and equipment is of good and merchantable quality according to the prevailing industry standards, including but not limited to reasonably up-to-date notary stamps that provide legible markings and complete and accurate journal of notary events and/or notary signature book.
2. Compensation. Company agrees to provide the following compensation (“Compensation”) to the Contractor in exchange for providing the Services:
a) For each Notary Assignment that the Contractor completes in compliance with the Project Terms to the satisfaction of the Company, not to be unreasonably withheld, the Company agrees to pay the Contractor in the amount specified in such Notary Assignment.
b) Notwithstanding the foregoing, in the event that there is an error in the Services provided by the Contractor, as determined by the reasonable judgment of the Company, then any out-of-pocket expenses that are paid by the Company as a direct result of that error, including but not limited to the cost of additional Fed-Ex or other overnight courier or express mail expenses, shall be born solely by the Contractor. If any of these costs or expense are not directly paid by the Contractor, then the Company may offset such costs from the amounts owed to Contractor.
By accepting this signing, the Parties agree to comply with all the requirements contained in this Exhibit A.
SIGNINGS PLACED ON HOLD:
The Company will keep the Contractor assigned to a specific Notary Assignment assigned so that when such Notary Assignment is rescheduled, the Contractor will be entitled to the “Right of First Refusal” and be compensated for the Project Terms originally agreed upon. Additional fees may apply, including the following: Print only fee: $10.00 /Print and travel fee: $35.00.