THIS INDEPENDENT CONTRACTOR AGREEMENT (this "Agreement") is by and between The Caddie Connection, Inc., a California corporation (hereinafter "TCC"), and the applicant, an independent contractor and professional golf caddie (hereinafter "Caddie"):
1. SERVICES COVERED
1.01 Description of Services. Caddie agrees to provide professional caddie services and expert guidance to golf players at resorts, clubs, hotels, and tournaments, on assignments referred to Caddie by TCC.
1.02 Method of Performing Services. Caddie will determine the method, details, and means of performing the above-described services.
1.03 Time and Location. The nature of the services requires that Caddie work at various golf courses. Within that limitation, Caddie shall have the right to perform the services in such manner, at such times, and at such locations, as Caddie deems appropriate. TCC shall have no right to interfere with Caddie's judgment with respect to the manner, time, and place of performance of the services, so long as any commitments made by Caddie as to any particular assignments are satisfied. Caddie may perform the services under this Agreement at any suitable time and location he or she chooses.
1.04 Equipment and Tools. Caddie will supply and be responsible for maintaining all tools, materials, and equipment required to perform the services under this Agreement.
1.05 No Training or Instructions. TCC enters into this Agreement based on Caddie's demonstrated ability to perform the services. Consequently, TCC will not provide Caddie with any training or instructions with respect to the services. Any such services will require a separate contract.
2. STATUS OF CADDIE
2.01 Status of Caddie. Caddie enters into this Agreement as, and will remain throughout the term of the Agreement, an independent contractor. Caddie agrees that he or she is not and will not become an employee, partner, agent or principal of TCC while this Agreement is in effect. Caddie agrees that he or she is not entitled to the rights, or benefits afforded to TCC's employees, including disability or unemployment insurance, workers' compensation, medical insurance, sick leave, or any other employment benefit. Caddie is responsible for providing, at his or her own expense, disability, unemployment insurance, workers' compensation, and other insurance, training, permits, and licenses for himself or herself and for his or her employees and sub-Caddies.
2.02 Payment of Income Taxes. Caddie is responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation paid by TCC to Caddie for services under this Agreement. On request, Caddie will provide TCC with proof of timely payment. Caddie agrees to indemnify TCC for any claims, costs, losses, fees, penalties, interest, or damages suffered by TCC resulting from Caddie's failure to comply with this provision.
2.03 Right to Engage Assistants. Subject to specific golf course requirements in section 7 of this Agreement, Caddie shall have the right to engage others to assist in the performance of the services. Caddie shall be solely responsible for paying all compensation owed to any assistants he or she engages and for paying, and/or withholding and remitting to the appropriate government agency, any applicable employment taxes that might be owed with respect to this compensation. Caddie also shall indemnify and hold TCC harmless against any and all liabilities attributable to the obligations imposed on Caddie under this paragraph. The Parties acknowledge that Caddie shall retain the exclusive right to determine which workers Caddie shall engage for these purposes.
2.04 Non-Exclusive Relationship. Caddie may represent, perform services for, and contract with as many additional clients, persons, or companies as Caddie wishes in his or her sole discretion.
3. COMPENSATION AND FEES
3.01 Caddie agrees to pay to TCC an agreed upon membership fee every six months. This fee will be automatically billed to Caddie's credit card every six months.
3.02 Caddie shall have the right to keep any tips or gifts received by Caddie directly from customers. Caddie is responsible for paying any and all income tax liability incurred as a result of receiving any such tips or gifts
3.03 Caddie will be solely responsible for all expenses incurred in performing services under this Agreement.
3.04 Caddie membership cancellation must be expressed and confirmed via email, phone call, or other form within the paid six month period. Failure to do so within that time will result in a nonrefundable membership fee charge for the next six month period.
4. OBLIGATIONS OF CADDIE
4.01 Workers' Compensation. Caddie agrees to provide workers' compensation insurance for Caddie's employees and agents, if any, and agrees to hold harmless and indemnify TCC for any and all claims arising out of any injury, disability, or death of any of Caddie's employees or agents.
4.02 Liability Insurance. Caddie shall be responsible for maintaining his or her own policy of insurance to cover any negligent acts or omissions committed by Caddie or Caddie's employees or agents during the performance of the services under this Agreement. Caddie further agrees to indemnify and hold TCC free and harmless from any and all claims arising from any such negligent acts or omissions.
4.03 Caddie's Qualifications. Caddie represents that he or she has the qualifications and skills necessary to perform the services under this Agreement in a competent, professional manner, without the advice or direction of TCC. This means Caddie is able to fulfill the requirements of this Agreement. Failure to perform all the services required under this Agreement constitutes a material breach of the Agreement. Caddie has complete and sole discretion for the manner in which the work under this Agreement will be performed.
4.04 No Show or Late Cancelation Reimbursement. Caddie acknowledges that TCC is relying on Caddie to show up on time and perform the services in a professional manner. If Caddie fails to show up for a booked caddie session or cancels booked caddie session with less than 24 hours notice, Caddie will be required to pay any cancellation fees that TCC is subject to for Caddie's failure to perform. This is not a penalty, but a reimbursement of any loss TCC suffers by Caddie's failure to perform via showing up late or canceling a session. Even with payment of the reimbursement, TCC may still elect to terminate this Agreement pursuant to section 8 of this Agreement.
4.05 Indemnity. Caddie agrees to indemnify, defend, and hold TCC free and harmless from all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, attorney's fees, and costs, that TCC may incur as a result of a breach by Caddie of any representation or agreement contained in this Agreement.
4.06 Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Caddie without the prior written consent of TCC.
4.07 Notice of Availability. Caddie agrees to make TCC aware of Caddie availability each month by submitting Caddie's schedule of availability for the upcoming month prior to the 1st of that month. TCC will not schedule Caddie for jobs if Caddie's schedule has not been received.
5 OBLIGATIONS OF TCC
5.01 Cooperation of TCC. TCC agrees to comply with all reasonable requests of Caddie necessary to the performance of Caddie's duties under this Agreement.
5.02 Efforts of TCC. So long as Caddie is current in payment of his or her membership dues and makes himself or herself available to perform the services, TCC will use reasonable efforts to secure the quantity and quality of assignments desired by Caddie subject to paragraph 7.03. Notice of possible assignments will be sent via email to Caddie for Caddie to accept or reject. When several Caddies seek to secure the same assignment, TCC will determine who receives the final assignment based on a preference system. The details of the preference system are outlined below.
5.03 Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by TCC without the prior written consent of Caddie.
6. GOLF COURSE REQUIREMENT NOTICE
6.01 Acknowledgement of Requirements. Caddie acknowledges that each golf course that contracts with TCC will have its own requirements Caddie will be subject to in order to perform services mentioned in paragraph 1.01. These requirements include but are not limited to; dress code, uniform, professional conduct, experience requirements, and insurance coverage. Caddie acknowledges that he or she must meet any of these requirements in place by the golf course in order to accept assignments from that golf course. Caddie acknowledges that TCC does not make, control, or otherwise create any requirements for any golf course. Caddie agrees to abide by any golf course requirements while providing services at that golf course. In addition, some assignments may be for special events being sponsored by the golf course. Any additional requirements due to a special event will be stated in the email notice of that assignment, and these requirements must be met in order to accept the assignment.
6.02 Golf Course Requirement Notice. TCC will post current golf course requirements on its website (http://www.caddieconnection.com/), which the Caddie will have access to via a username and password. Golf course requirements will be as current as practically possible, but TCC does not accept any liability for changes in golf course requirements and does not warrantee the information.
6.03 Failure to Abide by Golf Course Requirements. Should Caddie fail to abide by, or follow any golf course requirements as posted in accordance with paragraph 7.01 after acceptance of an assignment, it will be considered a material breach of this Agreement. In addition, Caddie acknowledges that such a failure may result in their inability to be assigned to any such golf course in the future. Caddie acknowledges that TCC does not control whom a golf course may request not to receive assignments. Caddie acknowledges that should a golf course request that he or she no longer receive assignments from that golf course, TCC must honor the golf courses request. Any such issue will not prevent the Caddie from receiving assignments from other golf courses while this Agreement is still in effect.
7. TERMINATION OF AGREEMENT
7.01 Termination Upon Notice. Either party may terminate this Agreement by providing the other party with thirty (30) days advance written notice.
7.02 Termination on Occurrence of Stated Events. This Agreement will terminate automatically on the occurrence of any of the following events:
(a) Bankruptcy or insolvency of either party.
(b) Sale or dissolution of the business of either party.
(c) Death of Caddie.
7.03 Termination for Default. If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non-breaching party shall have the right to terminate this Agreement with no advance notice if after providing the breaching party with notice of the breach, the breaching party fails to cure the breach within three (3) days after receipt of the notice of breach. For the purposes of this paragraph, material breach of this Agreement includes, but is not limited to, the following:
(a) TCC's failure to pay Caddie any compensation due within thirty (30) days after written demand for payment;
(b) Caddie's failure to complete the services specified in paragraph 1.01 above;
(c) Caddie's failure to abide by golf course requirements in section 7 of this Agreement;
(d) Material breach by either party of any representation or agreement contained in this Agreement.
8. PROPRIETARY RIGHTS
8.01 Intellectual Property. Caddie expressly acknowledges and agrees that all discoveries, inventions, processes, designs, plans, and trade secrets, whether of a technical nature or not, made or developed by Caddie alone or in conjunction with any other person or entity while performing the Services, which relate to or affect the business of TCC ("Intellectual Property"), shall be the sole and exclusive property of TCC. Caddie expressly agrees to disclose and reveal to TCC all Intellectual Property, and all information regarding Intellectual Property, concurrent with the discovery or development of the Intellectual Property. Caddie hereby assigns to TCC all rights, title, and interest in any Intellectual Property. Caddie agrees that he or she will not use or disclose any Intellectual Property owned by TCC to benefit a competitor, customer, individual, or other entity without the express written permission of TCC.
8.02 Confidential Information. Any written, printed, graphic, or electronically or magnetically recorded information furnished by TCC for Caddie's use is the sole property of TCC. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning TCC's employees, products, services, prices, operations, and subsidiaries. Caddie will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with TCC's approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to Caddie's employees, agents and sub-Caddies. On termination of this Agreement, Caddie will return any confidential information in his or her possession to TCC.
8.03 Non-Solicitation. For a period of one (1) year following the termination of this Agreement, Caddie will not do either of the following: (1) call on, solicit, or take away any of TCC's customers or potential customers Caddies may become aware of as a result of performing services under this Agreement; or (2) solicit or hire away any of TCC's employees or Caddies that Caddie may become aware of as a result of performing services under this Agreement.
9. GENERAL PROVISONS
9.01 Notices. Any notice under this Agreement must be in writing and shall be effective upon delivery by hand or three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to TCC or to Caddie at the corresponding address below. Caddie shall be obligated to notify Company in writing of any change in his or her address. Notice of change of address shall be effective only when done in accordance with this Paragraph. TCC's Notice Address: The Caddie Connection, Inc. ATTN: Bobby DiMeo 2683 Via De La Valle, Suite G, #314 Del Mar, CA 92014
9.02 Payment of Monies Due Deceased Caddie. If Caddie dies before completing the services under this Agreement, any monies due Caddie from TCC under this Agreement as of the date of death will be paid to the Caddie's executors, administrators, heirs, personal representatives, successors, and assigns.
9.03 Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach of this Agreement will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction over the award. Subject to the foregoing sentence, THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS. The fees of the arbitrator shall be split between both parties equally. The Parties agree that this paragraph shall survive the termination of this Agreement.
9.04 Entire Agreement of the Parties. This Agreement supersedes any and all agreements, either oral or written, between the parties with respect to the rendering of services by Caddie and TCC and contains all of the representations, covenants and agreements between the parties with respect to the rendering of those services. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not contained in this Agreement, and that no other agreement, statement, or promise not contained in this Agreement will be valid or binding. This Agreement may not be amended except by an instrument in writing signed by each of the parties.
9.05 Partial Invalidity/Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way.
9.06 No Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing, specifies it is a waiver, and is signed by the party waiving the breach, failure, right, or remedy.
9.07 Attorney's Fees. In any legal action, arbitration, or other proceeding brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs.
9.08 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California.
9.09 Force Majeure. Neither party shall be liable for any damages or other losses resulting from failure to perform its obligations under this Agreement where such failure is the result of a cause beyond the party's reasonable control.
9.10 Right of Review by Counsel. Caddie acknowledges that he or she has had the opportunity to consult legal counsel about this Agreement, he or she has read and understands this Agreement, he or she is fully aware of its legal effect, and that he or she has entered into it freely and voluntarily and based on his or her own judgment and not on any representations or promises other than those contained in this Agreement.