This Agreement is entered by and between DeQuatrro Enterprise, Inc., a
Florida corporation d/b/a Call Center Gateway, hereinafter referred to as
"Company", and applicant, hereinafter referred to as "Contractor".
P R E A M B L E :
Company is in the business of operating a third party call center that
specializes in providing sales verification and live transfers of
prospective leads to client companies (“Clients”).
Company desires to retain the services of Contractor for the purpose of
providing services to the business of the Company.
Contractor desires to work for the business of the Company pursuant to the
terms and conditions set forth in this Agreement.
Now, therefore, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
Term. Company hereby agrees to retain Contractor and Contractor agrees
to perform services for the Company on the terms and conditions
hereinafter set forth. The term of service under this Agreement shall
commence upon Contractor verification, and shall continue until this
Agreement is terminated in the manner hereinafter provided.
Duties of Contractor.
Scope of Responsibilities. In connection therewith, Contractor shall
only use scripts that are provided by Company and/or its clients, never
deviate there from, and abide by all guidelines set forth on Exhibit
“A”, attached hereto and incorporated herein by this reference.
Contractor acknowledges, understands, and consents to the fact that all
of his/her telephone calls made or received through Company’s dialer
system are being recorded and subject to monitoring to assure
compliance with this agreement and applicable laws. Contractor shall be
solely required to obtain all required licensing for her/him to provide
the services required of her/him to be provided herein and shall supply
evidence of such licensing at any time upon request from Company.
Contractor shall provide services at such times and in such manner,
subject to the provisions of this Agreement, as Contractor determines
in his/her own discretion. Contractor shall adhere to all state and
Federal laws during the course of contacting and speaking with
consumers regarding any product or service Contractor is promoting
and/or verifying. Contractor shall be provided a personal access code
and password to enable her/him to use Company’s dialer, Contractor is
not to provide such access code and/or password to anyone.
Engaging in Other Services. During the term of this Agreement, the
Contractor may perform services of a business, commercial, or
professional nature to any other person or organization, whether for
compensation or otherwise.
Compensation. Upon commencement of Contractor's services hereunder,
Contractor shall receive during the term of this Agreement,
compensation for services rendered hereunder determined as follows:
Fees. Contractor will receive the amount defined in the Contractor
relationship document and may change from time to time.
No payroll or employment taxes of any kind shall be withheld or paid with
respect to payments to Contractor. The payroll or employment taxes that are
the subject of this paragraph include but are not limited to FICA, FUTA,
federal personal income tax, state personal income tax, state disability
insurance tax, and state unemployment insurance tax.
No worker’s compensation insurance has been or will be obtained by Company
on account of Contractor or Contractor’s employees. Contractor shall comply
with the worker’s compensation laws with respect to it and its employees.
No Benefits. Contractor shall be responsible for satisfying all
compensation and benefits to Contractor’s employees and shall satisfy
any and all taxes as may from time to time be required by law with
respect to its operations and fees received. Contractor shall and does
hereby indemnify and hold Company harmless from any liabilities,
claims, taxes and other costs related to the fees it receives and the
compensation paid to it and any other claims with respects to payments
made by Company to Contractor. Contractor shall not by virtue of this
Agreement be entitled to any benefits from Company to which employees
of Company receive, directly or indirectly from Company.
During the term of this Agreement, the Contractor shall not, directly
or indirectly, either as a contractor, employee, consultant, agent,
principal, partner, stockholder, corporate officer, director or in any
other individual or representative capacity, engage, assist or
participate in any business that is in competition in any manner
whatsoever with the business of the Company.
In consideration of the Company retaining the Contractor in a position
wherein he will gain specialized knowledge and experience and will
establish personal relationships with the Company's customers,
suppliers and employees, the Contractor covenants and agrees as
Following the termination of the Agreement, whether by termination of this
Agreement, by wrongful discharge, or otherwise, the Contractor agrees that
for a period of two (2) years following the termination of his/her services
hereunder, he/she will not solicit, hire or otherwise retain the services
of any employee or agent of Company and Contractor will not encourage or
induce any such persons to terminate their relationships with Company.
Contractor further agrees that for a period of two (2) years following the
termination of his/her services hereunder, he/she will not directly or
indirectly solicit or perform services for any client serviced by the
Company prior to the date of termination of his/her employment.
These covenants on the part of the Contractor shall survive the
termination of this Agreement and shall be construed as agreements
independent of any other provision of this Agreement; and the existence
of any claim or cause of action of the Contractor against the Company,
whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants of this
Section. In the event of a breach or threatened breach by the
Contractor of his/her obligations under this restrictive covenant, the
Contractor acknowledges that the Company will not have an adequate
remedy at law and shall be entitled to such equitable and injunctive
relief as may be available to restrain the Contractor from the
violation of the provisions hereof. In the event that a court of
competent jurisdiction determines that either the geographical
restriction or the terms set forth herein are unreasonable, then either
of the above shall be adjusted by the parties hereto to a less
restrictive geographical area and/or term. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies
available for such breach or threatened breach, including the recovery
of damages from the Contractor.
In any action or proceeding by Contractor or by Company relating to or
involving the enforcement of the covenants set forth in this section,
CONTRACTOR HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY
JURY WITH RESPECT TO THE ACTION, PROCEEDING OR OTHER LITIGATION
RESULTING FROM, OR INVOLVING THE ENFORCEMENT OF, THE COVENANTS OF THIS
SECTION, INCLUDING, BUT NOT LIMITED TO ANY COUNTERCLAIMS OR OTHER
ACTIONS RELATED OR UNRELATED TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT. Contractor and Company hereby agree that the venue of any
action, proceeding, counterclaim, cross claim or any other litigation
relating to, involving or resulting from the enforcement of the
covenants of this section shall be in Seminole County, Florida. In
addition, in any action or proceeding by Company to obtain a temporary
restraining order and/or preliminary injunction to enforce these
covenants, Contractor hereby agrees that the posting of a bond, if
required by the Court, by Company in the amount of One Thousand Dollars
($1,000) shall be deemed reasonable in order to obtain the temporary
restraining order and/or motion for preliminary injunction. Should the
action of Company for a motion for a temporary injunction be granted in
whole or in part and Company is ultimately unsuccessful in obtaining a
permanent injunction to enforce the covenants of this section,
Contractor hereby waives any and all right Contractor may have against
Company for any injuries or damages, including consequential damages,
sustained by Contractor and arising directly or indirectly from the
issuance of the temporary restraining order and/or preliminary
Confidentiality. Contractor recognizes the interest of Company in
maintaining the confidential nature of Company's, its clients’, and
their respective customers’ proprietary matter and agrees that he/she
will not, directly or indirectly, disclose or use, except as required
in the course of performing his/her duties to Company, any proprietary
matter of Company, its clients, or their respective customers,
including, without limitation: records, files, data, software, methods,
formulae, products, apparats, customer lists, trade secrets, sales
lists, agent lists, plans, specifications, price lists, and other
similar information which is proprietary in nature. All such
proprietary matter which is in tangible form shall not be removed from
Company's premises or from the premises of Company's affiliates without
Company’s prior express written consent, except as required in the
course of Contractor's services. Upon termination of Contractor's
services, all such proprietary matters shall be promptly delivered to
Return of Materials. Contractor agrees that the expiration of this
Agreement any materials or documents, including copies thereof, which
contain confidential information of Company, or an of its clients or
their respective customers, shall be promptly returned to Company
except that copies may be retained, if required, for legal or financial
compliance purposes only.
Remedies. Both parties recognize that the services to be rendered by
Contractor for Company are special, unique, and of an extraordinary
character, and that in the event of a breach by the Contractor of any
of the terms or conditions of this Agreement, then Company shall be
entitled, if it so elects, to institute and prosecute proceedings in
any court of competent jurisdiction: (i) to enforce the specific
performance of this Agreement by Contractor, or (ii) to enjoin
Contractor from breaching any term, condition, or covenant of this
Agreement or from performing services in an individual capacity or for
any person, firm, or corporation if those services are performed in a
competing line of business with Company. Nothing contained herein shall
be construed to prevent such remedy in the courts as Company may elect
to invoke in case of any breach of this Agreement by Contractor.
Agreement by Contractor. Contractor agrees, warrants and represents to
Company that Contractor has the right and power to execute this
Agreement and perform his/her duties as indicated herein without
violation of any other agreements, whether written or oral, which would
prohibit him/her from providing services for the Company. Contractor
agrees to indemnify Company and hold it harmless from any such loss,
cost, damage or other expense incurred as a result of a breach of this
representation and warranty by Contractor.
Termination by Either Party Without Cause. This Agreement may be
terminated by either party for any reason by giving written notice to
the other at least fourteen (14) days prior to the effective date of
Termination by Company for Cause. This Agreement may be immediately
terminated by the Company upon the occurrence of any of the following
The death of the Contractor;
Upon discovery that Contractor has committed an act of fraud or
dishonesty, willfully damaged or injured the Company's property,
business or goodwill; or breached any material term or provision of
this Agreement, including, but not limited to strictly adhering to
scripts and/or disclosing access code and/or password to anyone other
than an officer of Company for any reason; or
Upon the failure of Contractor to possess current and valid licenses
required by any city, county or governmental agency of the State of
Florida to perform his/her services.
Termination by Contractor for Cause. This Agreement may be immediately
terminated by the Contractor upon Company’s breach of any material term
or provision of this Agreement which is not cured by Company within ten
(10) days of having received written notice thereof.
Effect of Termination Upon Compensation. In the event of the
termination of this Agreement prior to the completion of any term of
services specified herein, the Contractor shall be entitled to the
compensation earned by him prior to the date of termination as provided
for in this Agreement computed pro-rata up to and including that date;
the Contractor shall be entitled to no further compensation as of the
date of termination.
Dispute Resolution. All determinations and calculations of
compensation, Net Profits, and adjustments to any of the foregoing,
shall be made by the certified public accountant regularly retained by
the Company, whose determinations and calculations shall be final and
not subject to dispute. [not sure if you need this as not sure how you
Prior Agreements. This Agreement supersedes in its entirety any and all
prior agreements between Company and Contractor.
Invalid or Unenforceable Provisions. The invalidity or unenforceability
of any particular provision of this Agreement shall not affect the
other provisions hereof and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted or
modified by a court of competent jurisdiction in such a way as to make
it valid and enforceable.
Benefit and Burden. This Agreement shall inure to the benefit of, and
be binding upon, the parties and their heirs, successors and assigns.
The provisions of Section 5 of this Agreement are specifically
enforceable by any person who acquires all or substantially all of the
assets of Company, and such person shall be considered a third party
Waiver and Modification. No change or modification of this Agreement
shall be valid unless it is in writing and is signed by the parties
hereto. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person against whom it is sought to
be enforced. Failure of any party at any time to insist upon strict
performance of a condition, promise, agreement, or understanding set
forth herein, shall not be construed as a waiver or relinquishment of
the right to insist upon strict performance of the same condition,
promise, agreement or understanding at a future time.
Headings. Headings and other captions in this Agreement are for
convenience of reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Agreement.
Gender. Whenever this Agreement refers to a party in any gender, it is
understood that such person may be a male, female or legal entity.
Notice. All notices given under any provisions of this Agreement shall
be deemed to have been duly given if mailed by registered or certified
mail, return receipt requested; if delivered personally; or if sent by
a commercial overnight courier, i.e., FedEx or UPS.
Notices shall be deemed effective when delivered in person or sent as
required herein. An address referred to in this section may be changed from
time to time by the party to whom that address refers by sending written
notice to the other party in accordance with the terms of this paragraph.
Law Governing Agreement. This Agreement shall be governed, enforced and
construed in accordance with the laws of the State of Florida.
Arbitration. Notwithstanding anything set forth in this Agreement to
the contrary, other than items subject to specific performance, if a
dispute arises out of or relates in any manner to the terms of this
Agreement or the breach or interpretation thereof, the parties hereto
covenant and agree that the same shall be resolved by arbitration,
pursuant to the commercial arbitration rules of the American
Arbitration Association. Said arbitration shall be held at a Regional
Office of the American Arbitration Association closest to Company
before a panel of three (3) neutral arbitrators, with said arbitration
taking place within ninety (90) days following the filing of the Demand
for Arbitration. Each party shall choose one arbitrator and the two so
chosen shall promptly select a third arbitrator. If either Party
refuses or neglects to appoint an arbitrator within thirty (30) days
after the receipt of written notice from the other Party requesting
arbitration and naming its arbitrator, the Requesting Party may name an
arbitrator for the other Party. Unless otherwise provided for in this
Agreement, each Party shall be responsible for their own costs and
attorneys’ fees associated with any dispute. [I put this in at request
of Robby, but not ure it will work for this type of agreement-in any
event, may want to change to locate closer to contractor and then may
be more likely to be enforceable] [in event you decide to delete, then
would just add a jury trial waiver]
Interpretation. The parties have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
In witness whereof, the Company has by its appropriate officer signed this
Agreement and affixed its seal and the Contractor has signed this
Agreement, on the date first appearing above.