BEN AMARE LLC CONTRACTOR AGREEMENT
CONTRACTOR AGREEMENT is entered at the time of submitting this form(the “Effective Date”), by and between BEN AMARE LLC, a Florida limited liability COMPANY (the “COMPANY”), and the submitter to the team member onboarding form (“CONTRACTOR”) also knowns as the sub-contractor hired by COMPANY.
RECITALS
WHEREAS, COMPANY provides full production services and consult for events, activations, media and all commercial services (the “Services”);
WHEREAS, CONTRACTOR desires to refer potential clients (each, a “Referral”, and together the “Referrals”) of the Services to the COMPANY in exchange for a commission on any revenue generated by the COMPANY as a result of such introductions, in accordance with the terms herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Term and Termination.
⦁ The term (the “Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months. Prior to the end of the Initial Term and each “Renewal Term” (as hereafter defined), this Agreement will automatically extend for an additional twelve (12) month period (each, a “Renewal Term”) unless either party sends the other party a notice of non-renewal at least thirty (30) days prior to the expiration of the “Term”. The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.” This Agreement may be terminated by either party upon thirty (30) days prior written notice.
⦁ The following provisions shall survive the Termination Date: Sections 4 (Representations and Warranties), 5 (Indemnification), 6 (Limitation of Liability), 7 (Confidentiality), and 9 (Non-Competition and Non-Solicitation) and 11 (Miscellaneous).
2. Representations and Warranties.
Each of CONTRACTOR and COMPANY represents and warrants that: (i) it has the right to enter into this Agreement and the right to grant the rights granted herein; (ii) it is not a party to any agreement, contract, or understanding that would prevent, limit or hinder its performance of this Agreement; and (iii) it is not a party to any pending claims or litigation which might affect its performance of this Agreement.
3. Indemnification.
⦁ Each party (an “Indemnifying Party”) shall indemnify, defend and hold harmless the other party (the “Indemnified Party”), its affiliates, and each of their directors, officers, employees, and agents from and against all claims, suits and proceedings and any and all related liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) incurred by the Indemnified Party, relating to or arising out of the breach by the Indemnifying Party of any of its duties, obligations, representations or warranties under this Agreement.
⦁ An Indemnified Party will (i) promptly notify the Indemnifying Party of any claim, suit, or proceeding for which indemnity is claimed (but the Indemnifying Party shall be relieved from liability only to the extent any delay in providing such notice prevents the Indemnifying Party from defending such claim, suit or proceeding); (ii) cooperate reasonably with the Indemnifying Party at the Indemnifying Party’s expense; and allow the Indemnifying Party to control the defense or settlement thereof. The Indemnified Party will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense.
4. Limitation of Liability.
⦁ NEITHER PARTY HERETO WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
⦁ A party’s failure to bring a claim against the other party within one (1) year after the date on which the claiming party becomes aware of the existence of a potential claim, constitutes a waiver of such claim.
5. Confidentiality.
⦁ For purposes of this Section 7, “Confidential Information” means (1) business or technical information or data (oral, written, electronic or otherwise), including, without limitation, a trade secret (as defined under applicable law), of or about a party provided or made available by such party to the other party that is competitively or commercially valuable to that party and not generally known or readily available by legal means to others, and (2) information regarding the existence, content or status of the business relationship described herein. Confidential Information shall not include information which (i) at the time of disclosure, was published, known publicly, or otherwise in the public domain, (ii) after disclosure, is published, becomes known publicly, or otherwise becomes part of the public domain through no fault of the party receiving the Confidential Information, (iii) prior to the time of disclosure, is known by that receiving party or, after disclosure, is independently developed by that receiving party as evidenced by its written records, (iv) after disclosure, is made available to that receiving party in good faith by a third party who is under no obligation of confidentiality or secrecy to the party disclosing the Confidential Information, or (v) information agreed to be disclosed in accordance with Section 7 hereof.
⦁ CONTRACTOR and COMPANY, and either party’s affiliates, and their or their affiliates’ officers, directors, trustees, employees, advisers, agents and other personnel, shall use at least the same care and discretion to prevent disclosure of Confidential Information (as hereinafter defined) of the other party as it uses with similar Confidential Information of its own that it does not desire to disclose, but in no event with less than a reasonable degree of care. Either party may use Confidential Information of the other party in order to carry out its obligations hereunder, but in doing so will only allow dissemination of Confidential Information internally on a need-to-know basis (provided such persons are first informed of the confidential nature of such information and directed to use or disclose it only as permitted herein). If either party must disclose any Confidential Information of the other party as required by law, then that party may make such disclosure after providing the other party with reasonable notice so that the other party may seek protective relief.
⦁ Nothing herein shall be construed as granting either party any property rights, by license or otherwise, to any Confidential Information of the other party, or to any invention or any patent, copyright, trademark, or other intellectual property right of the other party except as specifically provided for in this Agreement. Neither party shall make, have made, use or sell any product or service or other item using, incorporating or derived from any of the other party’s Confidential Information except as provided in this Agreement.
⦁ The obligations under this Section 7 will survive the Termination Date, but Confidential Information that is not a trade secret will cease to be protected hereunder two (2) years after the Termination Date. On or before the Termination Date, each party will return to the other party all of that other party’s Confidential Information embodied in tangible form, and will destroy, unless otherwise agreed, all such other Confidential Information in that party’s possession.
6. Miscellaneous.
⦁ Notice. All notices under this Agreement will be given in writing or by written telecommunications via overnight mail, facsimile, or electronic mail to the addresses set forth below or such other address as either party may substitute by notice hereunder and all such notices given in accordance hereunder will be deemed as given as of the date of sending:
If to COMPANY:
BEN AMARE LLC
c/o Ben Amare
2045 Biscayne Blvd, PMB 123
Miami FL, 33137
If to CONTRACTOR:
CONTRACTORs filled out the information form that is submitted and attached to this Terms & Conditions page known benamarephoto.com/team
⦁ Partial Invalidity. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination will not affect the validity or enforceability of any other part or provision of this Agreement.
⦁ Waiver. The waiver by any party of any breach of any provision of the Agreement by any other party will not be construed to be a waiver of that party’s rights regarding any succeeding breach of any such provision or a waiver of the provision itself.
⦁ Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to this subject matter and supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings, and all other communications among the parties. This Agreement may not be released, discharged, or modified except by an instrument in writing signed by the parties.
⦁ Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to any applicable conflicts of laws.
⦁ Relationship of Parties. Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership between COMPANY and CONTRACTOR. Neither party, by virtue of this Agreement, is authorized as an agent, employee, or legal representative of the other. Except as specifically set forth herein, neither party will have the power to control the activities and operations of the other and their status is, and at all times will continue to be, that of independent CONTRACTORs.
⦁ Assignment; Effect of Change in Control. Neither party may assign its rights or obligations under this Agreement (whether by merger, consolidation, sale of assets, sale of stock, or otherwise) without the other parties’ written consent.
⦁ Waiver of Jury Trial. EACH OF COMPANY AND CONTRACTOR SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT BECAUSE THE PARTIES HERETO, EACH OF WHOM IS REPRESENTED BY COUNSEL, BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALING WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
NON-CIRCUMVENTION, NON-DISCLOSURE SECTION
A. CONTRACTOR wishes to enter into this agreement to define certain parameters of their future legal obligations, and considering their mutual promises herein and other good and valuable consideration, the receipt of which is hereby acknowledged, solely for the purposes of any legal business endeavors or business transactions contemplated or completed by the parties hereto, as well as to strictly enforce the confidentiality and to safeguard certain trade secrets and other proprietary information that may be disclosed to CONTRACTOR by COMPANY during the course of the negotiations and contemplated mutual business endeavors; (the “Transaction”),
and
B. CONTRACTOR wishes to enter into this Agreement to define certain parameters of their future legal obligations, and considering their mutual promises herein and other good and valuable consideration, the receipt of which is acknowledged hereby, solely or the purposes of any legal business endeavors or business transactions, contemplated or completed by the parties hereto, as well to strictly enforce the confidentiality of and to safeguard certain trade secrets and other proprietary information that may be disclosed to COMPANY by CONTRACTOR during the course of the negotiations and contemplated mutual business endeavors.
AGREEMENT
For Good and Valuable Consideration and the mutual promises contained herein, the receipt of which is hereby acknowledged, COMPANY and CONTRACTOR mutually and voluntarily agree as follows:
A. Non-Circumvention.
1. Source Information. The Parties hereto and/or their affiliated persons and entities whether as a corporation, partnership, limited liability COMPANY or as an individual, shall not, in any manner, solicit and/or accept any business from sources that have been made available by and through COMPANY or CONTRACTOR, nor in any manner shall either access, contact, solicit and/or conduct any transaction with such sources, without the expressed and specific permission of COMPANY and CONTRACTORwhich made such sources available.
2. Prior Consent. COMPANY and CONTRACTOR each shall maintain complete confidentiality regarding the COMPANY ’s business and/or their affiliates and CONTRACTOR business and/or their affiliates. Each Party shall only disclose knowledge pertaining to the subject matter of this Agreement as mutually agreed and granted by express written permission by both Parties in writing in advance of such disclosure.
3. Contacts. COMPANY and CONTRACTOR expressly agree not to contact, directly or indirectly, any of the brokers, agents, buyers, sellers, representatives, lending institutions, or any other entities or individuals introduced to CONTRACTOR by COMPANY in connection with the Transaction, for the purpose of engaging in the Transaction, or related transactions, without the direct participation of COMPANY, or for the purpose of otherwise avoiding the payment in whole or in part, of compensation to COMPANY as contemplated in the negotiations that are the subject of this Agreement, or vice versa.
4. Non-Circumvention as to Confidential Information. COMPANY and CONTRACTOR shall not in any way whatsoever circumvent the other Party as to such information disclosed by COMPANY to CONTRACTOR and vice versa, or attempt such circumvention of the other Party. Each Party shall utilize good faith and its best efforts to safeguard all Confidential Information (as that term is defined below) provided by either Party relating to any sources involved in any of the transactions contemplated by this Agreement including but not limited to the assurance that the proprietary information is not disclosed, altered, or disturbed to a third party without the prior written consent of both Parties. Neither Party shall disclose any contact revealed by either Party to a third party and each Party fully recognizes that such information and contract(s) of each Party shall be maintained in the strictest of confidence. Neither Party shall reveal to another that this Agreement exists, without their mutual agreement. Neither Party shall in any manner be circumvented by any attempt to directly, or indirectly, in any manner, enter into direct and/or indirect offers, negotiations and/or transactions with such contacts revealed by either Party hereto.
5. Damages Caused by Circumvention. In the event of circumvention by any Party to this Agreement, whether direct and/or indirect, the Party found not to be in breach of this Agreement shall be entitled to a legal monetary compensation equal to the maximum fees it should realize from such a Transaction, plus any and all expenses, including any and all legal fees and costs incurred.
B. Confidential Information.
1. Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall mean, with regard to either party and their respective parent COMPANY, subsidiaries, and/or affiliates, all processes, procedures, trade secrets, and strategies, names of any trading companies, brokers, agents, buyers, sellers, representatives, lending institutions, corporations, organizations, individuals, or groups of individuals provided to either Party, including but not limited to customer, supplier or personal names and other information related to customers, suppliers, or personnel, and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible forms, and any other trade secrets. Confidential Information shall not include (a) information known to either Party prior to obtaining the same from the other Party; (b) information in the public domain at the time of disclosure by either Party;] (c) information obtained by either Party from a third party who did not receive same, directly or indirectly, from any Party to this Agreement, or (d) information approved for release by express prior mutual written consent of an authorized officer of either Party.
2. Use and Obligations Relating to Confidential Information. Each Party hereby agrees to use the Confidential Information solely for the purpose of evaluating and negotiating the terms of the Transaction, and related transactions, with the other Party, and not in any way detrimental to any parent COMPANY, subsidiaries, and/or affiliates. Each Party shall maintain the Confidential Information in the strictest confidence at all times during the course of negotiations for any reason. Neither Party shall use any Confidential Information for its own benefit or for the benefit of a third party, nor shall either Party disclose to any third party the fact that such Confidential Information has been made available to the other Party, without the prior mutual written consent of each Party, except that such party shall be permitted to discuss the Confidential Information with its directors and officers, agents and professionals in the negotiating process. Each Party shall cause each of its directors, officers, employees, agents, and representatives, to become familiar with, and abide by, the terms of this Agreement, and each Party further agrees to use its reasonable best efforts to prevent the unauthorized use or disclosure of the confidential information.
3. Permissible Disclosures. Notwithstanding the provisions of this agreement, either Party may disclose Confidential Information if said Party is required to do so by the disclosure requirements of any law, rule, regulation or any order, decree, subpoena or ruling or other similar process of any court, governmental agency or regulatory authority. Prior to making or permitting any such disclosure, each Party shall provide the other Party with prompt written notice of any such requirement so that the non-disclosing Party (with the disclosing Party’s assistance if requested by such Party) may seek a protective order or another appropriate remedy.
4. Survival of Non-Disclosure and Non-Circumvention Provisions after Termination of Agreement. Notwithstanding the return or destruction of all or any part of the Confidential Information, the confidentiality provisions set forth in this Agreement shall nevertheless remain in full force and effect.
5. Equitable Remedies. Each Party acknowledges that the Confidential Information is valuable and unique proprietary information, and that damages would be an inadequate remedy for either Party based upon a breach of this Agreement. Accordingly, each Party agrees that in the event of a breach or threatened breach of this Agreement by one of the Parties, the other Party shall be entitled to a temporary and permanent injunction to enforce the terms hereof, without the necessity of proving damages or posting any bond. This provision with respect to injunctive relief shall not, however, prohibit any Party and its affiliates from pursuing any other available rights or remedies, at law or in equity, for such breach or threatened breach, including, without limitation, the recovery of money damages from the breaching Party or any third party. Each Party and its affiliates may seek injunctive relief in accordance with this paragraph in any court of competent jurisdiction.
6. Term of Agreement. The purpose of this instrument is to establish an internationally recognized Non-Circumvention, Non-Disclosure, and Working Agreement between the Parties. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties.
C. Miscellaneous.
1. Relationship of Parties. Nothing contained herein shall create any association, partnership, joint venture or agency relationship between the Parties to this Agreement. Neither Party shall be liable or bound by any representation, warranty, act or omission on the part of the other which is contrary to this provision.
2. Legal Representation. By executing this Agreement, each Party that it has been advised by the other Party to retain separate legal counsel in connection with this Agreement and each party has had the full and fair opportunity to consult with separate legal counsel, and any other professional that the Party deems appropriate, prior to executing this Agreement.
3. Integration and Modification of Agreement. This Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the Parties, oral and written, with respect to the subject matter hereof. If a conflict arises between any of the agreements relating to the subject matter hereof, this Agreement will control. This Agreement may not be modified, other than by writing signed by the Party to be charged with such a modification.
4. Invalidity or Partial Invalidity of this Agreement. In the event any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, this Agreement shall be interpreted and enforceable as if such provision were severed or limited but only to the extent necessary to render such provision and this Agreement enforceable.
5. Attorneys’ Fees and Costs. Any attorneys’ fees, costs and charges for litigation shall be reimbursed to the prevailing Party.
6. Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual Parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
7. Public and Press Announcements. Neither Party shall issue or cause to be issued any press releases without the mutual written consent of the other in advance.
8. Notices. All notices, requests and demands to be made hereunder to the Parties shall be in writing and shall be delivered by hand or sent by overnight or certified mail, return receipt requested, through the United States Postal Service to the addresses shown below or such other address which the Parties may provide to one another in accordance herewith. Such notices, requests and demands, if sent by mail, and if delivered by hand, shall be deemed given when delivered.
9. Captions and References; Numbers and Gender. The headings at the beginning of each section of this Agreement are solely for convenience and are not part of this Agreement. In this Agreement the singular shall include the plural and the masculine shall include the feminine and neuter gender and vice versa if the context so requires.
10. Incorporation of Preamble and Recitals. The preamble and recital are hereby incorporated into this Agreement.
11. Governing Law. This Agreement shall be deemed to be a contract entered into pursuant to the laws of the State of Florida and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State of Florida. Courts in Miami-Dade Florida shall have exclusive jurisdiction over any dispute between the parties.
12. This Agreement shall be binding upon Brokers, if any, and their Clients.
13. Counterparts and Facsimiles. This Agreement may be signed in one or more counterparts and the Parties agree that facsimile copies of this Agreement to be considered as a legal original and signatures thereon shall be legal and binding.
SIGNING
Upon clicking the Agree to Terms and Conditions button, and signing the form on the benamarephoto.com/team page, this contract will be finalized and binding. A copy of the email confirmation with CONTRACTORS information can be requested at anytime.