2025-02-13_bethann.rosario_Independent Sales Consultant Agreement (Seth Gaynes).docx

INDEPENDENT CONTRACTOR AGREEMENT

September 2, 2020

Seth Gaynes

Company Name

Company Address

Dear Seth:

This is an Independent Contractor Agreement (the “Agreement”), pursuant to which Home Care Assistance of NY, LLC (“HCA”) retains the services of Seth Gaynes/Company Name (the “Contractor”) as an independent contractor in accordance with the conditions set forth herein.

In consideration of the mutual promises made herein, the parties agree as follows:

Services.  Subject to the provisions herein, Contractor shall perform the services set forth in the schedule of services (the “Services”), attached hereto as Exhibit A.

Verification of Independent Contractor Status.

The Services to be performed herein shall be performed by Contractor as an independent contractor and not as an employee of HCA.

Nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship.  Contractor is not the agent of HCA and is not authorized to make any representation, contract, or commitment on its behalf.

Contractor will not be treated as an HCA employee for federal or state tax or any other purposes, nor will Contractor be eligible for any HCA benefits, including but not limited to, workers’ compensation, disability, and retirement benefits (and waives the right to receive any such benefits, to the extent permitted by law).

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 the Services and receipt of fees under this Agreement.

Contractor shall supply HCA with a duly executed IRS Form W-9 on or prior to the commencement of services, and HCA shall issue 1099 tax forms with respect to fees paid to Contractor.

Contractor is solely responsible for the manner and means of the performance of the Services to be provided hereunder.  Contractor hereby acknowledges and agrees that any deadlines specified by HCA do not constitute direction or control by HCA over Contractor’s Services or direction by HCA of the time for performance by Contractor.   Contractor is solely responsible to supply and use its own tools or equipment that may be necessary for the performance of the Services herein.  Contractor is also solely responsible for the hiring and payment of any subcontractors or assistants.

Contractor Representations and Warranties.  Contractor represents and warrants that:

Its Services (and any element thereof) will not infringe or misappropriate the proprietary rights of any third party.

It has full right and power to enter into and perform this Agreement without the consent of any third party.

It is experienced and skilled in performing the Services hereunder.  HCA will not provide Contractor with any training or instructions concerning the means or methods of performance under this Agreement.

It offers the Services to the public.  Its website can be found at __________________. [if applicable]

It has the right to provide (and does provide) the Services or similar services to other businesses and/or entities, including __________________. [list other business with which the Contractor has worked].

It will not engage in any conduct that is unlawful and shall perform the Services in a professional manner consistent with industry standards.

Term and Termination.

Contractor hereby agrees to provide services to HCA as an independent contractor, for the term set forth in Exhibit A.

Either party may terminate this Agreement by providing the other party five (5) business days’ written notice.  If HCA terminates this Agreement prior to the expiration of the stated term, Contractor shall immediately deliver to HCA the following:  (i) a written invoice for the pro-rated compensation owed to Contractor; and (ii) any then-existing Work Product resulting from Contractor’s Services. To be clear, HCA will pay Contractor only those fees related to services actually performed before and during such notice period.

Payment.

HCA will pay Contractor the fees specified in Exhibit A as Contractor’s sole compensation for the Services, provided the services meets the terms of Exhibit A and this Agreement and are of a quality consistent with industry standards.

Contractor agrees that the fees were freely negotiated by HCA and Contractor.

Contractor shall be responsible for all expenses incurred in performing services under this Agreement, except as otherwise agreed to in Exhibit A.

Contractor will submit invoices for the Services rendered, to the individual listed in Exhibit A.

Contractor will receive payment in the form of a check within 30 days of HCA’s receipt of the invoice and no later than the last day of the month following the month in which the amounts are earned. Contractor shall not be paid unless and until Contractor invoices HCA.

The end “value” of Contractor’s Services shall be measured separately per each project,  and shall be equal to the total amount paid by HCA to the Contractor after all invoices related to the Services listed in Exhibit A have been submitted and approved.  This subsection applies for purposes of Int. 1017-C, Local Law 140 (colloquially known as the NYC Freelance Isn’t Free Act) only.

Confidentiality.

Contractor agrees that by performing the Services under this Agreement, Contractor may become familiar with certain Confidential Information.

As used in this Agreement, the term “Confidential Information” means trade secrets, “know-how,” and other proprietary data of HCA or of any of its partners, consumers, clients, suppliers, advertisers or vendors, that is not publicly known (other than public knowledge due to the Contractor’s disclosure in breach of this Agreement), that HCA designates as proprietary or confidential or otherwise seeks to keep confidential, or that HCA is bound to keep confidential. Confidential Information includes, but is not limited to:

information that is central to HCA operations such as future plans (including ideas, files, designs, research, and drafts) and “know how” about HCA operations that are unique (including referral, client and financial information.

information of a business nature, such as non­public financial information and results, business plans, finances, operations, strategic plans, staffing plans, and other plans, ideas, research and other data regarding key personnel, sales, costs, marketing profits, prices, advertising, merchandising, suppliers, customers, clients or readers;

sensitive information or information of a private nature, such as client and consumer files, and other information about former, current or prospective clients and consumers which may include personally-identifiable information;

computer and technical data, such as software (source code, object code, documentation, diagrams, flow charts, etc.), designs, drawings, specifications, models, data, client and consumer information contained therein;

business files and records, including paper files, electronic files, e-mail, and voicemail;

any legal, business, communications/public relations or financial advice sought by or received by HCA;

any information of the type described above that HCA obtained from another party that either designates or treats as proprietary or confidential, whether or not owned or developed by HCA; and

any notes, analyses, summaries, memoranda or other reports, compilations or other derivative materials (regardless of the medium, form or format) prepared by Contractor that contain, reflect or are based upon, in whole or in part, any Confidential Information.

Contractor agrees that during the term of this Agreement and thereafter, except as expressly, authorized in writing by HCA representative who signed this Agreement on behalf of HCA (“Authorized Representative”):

will not use or permit the use of Confidential Information in any manner or for any purpose not expressly set forth in this Agreement to any third party (i.e., publicly or outside HCA; its agents, employees, officers and directors), without first obtaining the express written consent of Authorized Representative on a case-by-case basis;

disclose, lecture upon, or publish to any third party or permit others to disclose, lecture upon or publish to any third party, any such Confidential Information without first obtaining the express written consent of Authorized Representative on a case-by-case basis; and

will not remove any tangible embodiment of any Confidential Information from HCA premises without the prior written consent of Authorized Representative. To be clear, this obligation applies during and after the term of this Agreement.

Nothing in this Agreement prohibits Contractor from reporting an event that Contractor reasonably and in good faith believes is a violation of law to the relevant law-enforcement agency, or from cooperating in an investigation conducted by such a government agency.  This may include disclosure of trade secret or confidential information within the limitations permitted by the Defend Trade Secrets Act (DTSA).  Contractor is hereby notified that under the DTSA, no individual will be held criminally or civilly liable under Federal or State trade secret law for disclosure of a trade secret (as defined in the Economic Espionage Act) that is: (i) made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and made solely for the purpose of reporting or investigating a suspected violation of law; or, (ii) made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public. And, an individual who pursues a lawsuit for retaliation for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.

Upon termination of the Agreement or the Services described in Exhibit A, or upon HCA request at any other time, Contractor will deliver to HCA all of HCA property, equipment, and documents (together with all copies thereof), if any, that are in the possession of Contractor, and any other material containing or disclosing any Work Product related to the Services or Confidential Information and, upon HCA request, certify to HCA in writing that Contractor has fully complied with this obligation.

During the term of this Agreement and for six (6) months thereafter and unless prohibited by applicable law, neither party will solicit or induce or instruct another to solicit or induce the employment or clients of the other party’s then current employees or clients without the other party’s prior written consent. By way of clarification, a general advertisement or notice of a job opening or other similar general publication, including on the internet, is not construed as a solicitation or inducement for the purposes of this section.

During the term of this Agreement, Contractor shall exclusively refer to HCA any leads for home care services (including in-home residence care and residential care facilities) within Nassau County, New York.  Contractor is not bound by exclusively for any other work or services.

Ownership of Work Product.

As used in this Agreement, the term “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Proprietary Rights therein.  The term “Proprietary Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country.  The term “Work Product” means any Invention that is solely or jointly conceived, made, reduced to practice, or learned by Contractor in the course of any services performed for HCA or with the use of materials of HCA during the term of this Agreement.

Contractor agrees to disclose promptly in writing to HCA, or any person designated by HCA, all Work Product.

Contractor also agrees that any and all Work Product are “works for hire” and shall be the sole and exclusive property of HCA.  Contractor acknowledges that the foregoing description of “works for hire” is a term of art that concerns intellectual property rights in the Work Product, and is not a term meant to generally describe Contractor’s relationship with HCA pursuant to this Agreement.  Contractor acknowledges that he or she is an independent contractor as set forth in Paragraph 1, and Contractor waives Contractor’s right, if any, to claim that Contractor is an employee of HCA by virtue of the agreement in writing herein to provide Work Product to HCA as “work for hire.”

If Contractor has any rights to the Work Product that are not owned by HCA upon creation or embodiment, Contractor irrevocably transfers and assigns to HCA all rights of every kind (including copyright and otherwise in the Work Product in all languages throughout the world in perpetuity for use in all media whether now or hereafter known or invented; provided however, HCA shall have no copyright in Contractor’s concepts, research or ideas expressed in the Work Product or in any proprietary tool(s) that Contractor developed before the date of this Agreement.  Except as set forth below, Contractor retains no rights to use the Work Product and agrees not to challenge the validity of HCA ownership in the Work Product.

If Contractor has any rights to the Work Product that cannot be assigned to HCA , Contractor unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against HCA with respect to such rights, and agrees, at HCA’s request and expense, to consent to and join in any action to enforce such rights.  If Contractor has any right to the Work Product that cannot be assigned to HCA or waived by Contractor, Contractor unconditionally and irrevocably grants to HCA during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sub-licensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights.

Contractor agrees to assist HCA in every way, both during and after the term of this Agreement, to obtain and enforce United States and foreign Proprietary Rights relating to Work Product in all countries.  In the event HCA is unable to secure Contractor's signature on any document needed in connection with such purposes, Contractor hereby irrevocably designates and appoints HCA and its duly authorized officers and agents as its agent and attorney in fact, which appointment is coupled with an interest, to act on its behalf to execute and file any such documents and to do all other lawfully permitted acts to further such purposes with the same legal force and effect as if executed by Contractor.

Liabilities and Indemnification.

To the fullest extent permitted by law, Contractor shall indemnify and hold HCA, its owners, officers, employees, agents and servants harmless from and against all claims, suits, damages, liabilities, losses, demands, costs and expenses, including reasonable attorneys’ fees and disbursements, and punitive damages of every kind and nature, by or on behalf of any person, firm, association or corporation, in connection with the performance of the Services under this Agreement. HCA shall not have any liability whatsoever for (i) any injury or death to Contractor or (ii) any damage to or loss of any property of Contractor arising in connection with this Agreement except for injuries, death or damage arising from the negligence of HCA or any of its employees or agents.

Contractor understands that, as an independent contractor, Contractor is not covered by, or entitled to, workers’ compensation benefits from HCA or its carrier as a result of any injury, illness or death incurred by Contractor while performing the Services.  Contractor also understands that, as an independent contractor, Contractor is also not entitled to any unemployment benefits from the state or federal government in the event this Agreement is terminated.

Contractor agrees to accept exclusive liability for complying with all applicable state and federal laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Contractor under this Agreement.

Waiver.  Failure to insist upon strict compliance with any of the terms, covenants or conditions under this Agreement at any time shall not be deemed as waiver of any terms, covenants, or conditions of the Agreement.

Severability.  If any provision of this Agreement is held to be invalid in any jurisdiction, either by statute or judicial decision, you and HCA agree that said provision shall be deemed modified to comply with the law.  If any provision is so stricken, the remainder of this Agreement shall remain in full force and effect.

Entire Agreement.  This instrument contains the entire Agreement between the parties.  It may not be changed orally, but only by signed, written agreement of the parties. It supersedes and merges all prior discussions between the parties with respect to such subject matters.  The terms of this Agreement will govern Exhibit A and the Services undertaken by Contractor.  In the event of any conflict between this Agreement and Exhibit A, the terms of Exhibit A shall govern, but only with respect to the Services set forth therein.

Notices.  Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party by e-mail or at the address listed on the signature page, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service.  Notice will be effective upon receipt or refusal of delivery.  If delivered by certified or registered mail, 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 courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. If delivered by e-mail, any such notice shall be considered to have been given on the sent date. Each party may change its address for receipt by giving written notice of such change to the other party.

Applicable Law and Choice of Forum.  This Agreement and any dispute, controversy or proceeding arising out of or relating to this Agreement shall be governed by the substantive laws of the State of New York.  Any dispute, controversy, proceeding or claim arising out of or relating to this Agreement shall be brought exclusively in the Commercial Division of the Supreme Court of the State of New York in the County of New York, or if such court lacks subject matter jurisdiction, in the courts of the State of New York in the County of New York.

Injunctive Relief.  Contractor acknowledges that, because its services are personal and unique and because Contractor will have access to Confidential Information of HCA, any breach of this Agreement by Contractor would cause irreparable injury to HCA for which monetary damages would not be an adequate remedy and, therefore, will entitle HCA to injunctive relief (including specific performance). In particular, a breach of the provisions of Paragraphs 3 and/or 6 would give rise to irreparable harm to HCA (or, in the case of disclosure of certain Confidential Information, to the owner of that information) which cannot be compensated adequately by an award of damages.  Accordingly, if Contractor breaches or threatens to breach this Agreement, HCA (as well as the owner of any Confidential Information at issue, if not HCA) may seek and obtain injunctive relief against such breach or threatened breach, in addition to any other legal remedies which may be available.  Accordingly, Contractor consents to the entry of a restraining order, preliminary injunction or other court order to enforce this Agreement and expressly waives any security that might otherwise be required in connection with such relief.  The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party in law or in equity.

Counterparts.  This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same agreement.

Rule of Construction Waived.  The rule of construction that provides that agreements shall be construed against the drafter shall not be applied or considered in any action or proceeding to enforce any provision of this Agreement.

Voluntary Agreement.  The parties acknowledge that (a) they have each had the opportunity to consult with independent counsel of their own choice concerning this Agreement, (b) they have read and understand the Agreement and are fully aware of its legal effect, and (c) they have entered into this Agreement voluntarily and freely based on their own judgment and not on any promises or representations other than those contained in this Agreement.

Full and Complete Agreement. This Agreement constitutes the full and complete agreement between Contractor and HCA concerning the subject matter hereof, and fully supersedes any and all prior agreements, commitments or understandings between the parties.

EXHIBIT A

STATEMENT OF WORK

This Statement of Work is incorporated into the Independent Contractor Agreement by and between HCA and Contractor.  This SOW describes services to be performed and provided by Contractor pursuant to the Agreement.

Name of Contractor Assigned to Perform Services. Seth Gaynes, [Insert Company Name]

Scope of Services.

Generate leads for HCA in Nassau County, New York by promoting HCA products and services, building relationships with customers, and utilizing his own enterprise an initiate to drive clients to HCA.

Fees.

Contractor shall earn 10% of the active revenue produced by each client lead generated by Contractor for the first six months of the client’s contract with HCA.  Contractor cease earning compensation for revenue produced by a client lead generated by Contractor after the completion of six month period. Payment of fees will be due following presentation of a detailed invoice.

For purposes of Int. 1017-C, Local Law 140 (colloquially known as the NYC Freelance Isn’t Free Act) only, the “value” of the services performed pursuant to this SOW is equal to the total amount paid by the Company to the Contractor after all invoices related to the SOW have been submitted and approved by the Company.

Please send invoices to: Accounts Payable, Home Care Assistance Accounts Payable, 1255 Oakmead Parkway, Sunnyvale, CA 94108.  Invoices shall be issued monthly.

Expenses.    All expenses, including, but not limited to, phone, laptop, computer, paper, travel, and other such services and equipment, shall be borne by the Contractor.

Timing.  Specific project(s) with deadline shall be requested by HCA in writing.

By signing below, contractor acknowledges and affirms that contractor is an independent contractor and not an employee of HCA. Contractor acknowledges and affirms that contractor is responsible for determining the means and methods of preparing and providing the services.

HOME CARE ASSISTANCE 

By:					
	Ashley Mirone 
	Vice President, Business Development
1255 Oakmead Parkway
Sunnyvale, CA 94108
[Email]
	[Phone]

Date: | ACCEPTED AND AGREED TO:

By:					
	Seth Gaynes
	Owner
[Mailing Address]
[Email]
	[Phone]
	

Date:

HOME CARE ASSISTANCE 

By:					
	Ashley Mirone 
	Vice President, Business Development 

Date: | CONTRACTOR

By:					
	Seth Gaynes
	Owner

Date: