It is an independent contract, I believe. The question I have is whether I can file some type of motion for breach on the part of the company that offered it to me. They have said the terms have changed without putting it in the contract(payment terms). They also have made it difficult for me to begin the work by claiming that their clients haven't paid for the service for which they hired me.
Independent Contractor Agreement <English Language Learner Instructor> As of July 30th, 2013 (“Effective Date”), this Contractor Agreement (“Agreement”) is entered into by and between New Oasis International Education Inc., a corporation, located atXXXXX Room 384, Herndon VA 20171 (“Company”) and Laura Virginia Sisler, an individual, residing at 5403 Deer Trail Rd., Summerfield, NC 27358 (“Contractor”). 1. Term. This Agreement shall begin on the date noted above and shall remain in force until terminated by either Contractor or New Oasis under the provisions of Paragraph 20 below. 2. Services. Contractor shall, to the best of his or her ability, render services ("Services") as set forth in Exhibit “A” and any other services as requested by New Oasis and agreed to by Contractor by the completion dates set forth by New Oasis. Contractor agrees to exercise the highest degree of professionalism, and to utilize his or her expertise and creative talents in completing such Services. In completing the Services, Contractor agrees to provide her or her own equipment, tools and other materials at his or her own expense, unless a particular task requires the Contractor to utilize the equipment or facilities of the Company in order to meet the needs of the students or families or schools who have engaged the Company for service. Contractor shall ensure Services are performed and completed in a timely and professional manner consistent with industry standards, and at a location, place and time which the Contractor deems appropriate and to which Company agrees. Due to the student-centered nature of the Services to be performed, Contractor may not subcontract or otherwise delegate his or her obligations under this Agreement without Company’s prior written consent. 3. Payments, Fees & Charges. New Oasis shall provide payment on a regular, periodic basis as established on Exhibit “B” for the services provided by the Contractor. The Company requires as a condition of payment, for Contractor to submit an invoice detailing hours worked, a description of work and dates worked, at the end of pay period in which Services were performed. 4. Relationship. Contractor’s relationship with Company shall be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Contractor is not the agent of Company and is not authorized to make any representation, contract, or commitment on behalf of Company. Contractor shall not be entitled to any of the benefits or her which Company may make available to his or her employees, such as options, group insurance, profit-sharing or retirement benefits. Contractor shall 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 shall regularly report amounts paid to Contractor by filing Form 1099-MISC with the Internal Revenue Service as required by law. Because Contractor is an independent contractor, Company shall not withhold or make payments for social security; or make unemployment insurance or disability insurance contributions. Contractor agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid to Contractor under this Agreement. Contractor hereby agrees to indemnify and defend Company against any and all such taxes or contributions, including penalties and interest. Contractor is free to enter any contract to provide 13800 Coppermine Road #384 Herndon VA 20171 (tel) XXX-XXX-XXXX (fax) XXX-XXX-XXXX email:XXX@XXXXXX.XXX website: www.newoasisedu.com Where the dream begins New Oasis International Education services to other business entities, except any contract which would induce Contractor to violate this Agreement. 5. Confidentiality. While performing Services for Company, confidential information and trade secrets about Company's or third parties’ businesses ("Confidential Information") shall be disclosed to Contractor. Confidential Information includes, without limitation, Company's or third parties’ business plans, partnership/affiliation arrangements, clients, financing arrangements, technical data, marketing plans, software, source codes, programming techniques, ranking techniques, sources of services and goods, costs, profits or her, methods of obtaining new clients, competitive analyzes, personnel information, and financial data. Confidential Information does not include (i) information which Contractor can show is or becomes generally known by the public other than as a result of a disclosure by Contractor, or (ii) information which Contractor can show was known by Contractor prior to employment and was not first disclosed to Contractor by Company. Contractor agrees that Contractor shall not disclose in any form, oral, electronic or paper, Confidential Information by any means to any third party, and that he or she shall only use Confidential Information for the purposes of performance of Services, unless otherwise authorized by Company, during performance of Services and for a period of three (3) months thereafter. Contractor understands that misusing Confidential Information to divert business away from Company during or following conclusion of Contractor’s performance of Services with the Company is a material breach of this Agreement. Contractor agrees to immediately return all Confidential Information to Company upon end of performance of Services or upon termination of this Agreement, or at any other time requested by the Company. 6. Conflicts of Interest. Contractor warrants that, to the best of Contractor’s knowledge and belief, there are no relevant facts or circumstances that could give rise to an organizational conflict of interest, defined as activities or relationships with any third party (whether a person or organization) which would cause Contractor to be unable or potentially unable to render impartial assistance or advice to the Company, or Contractor’s objectivity in performing the work might be impaired, or resulting in an unfair competitive advantage, or that Contractor has disclosed all such relevant information to Company. Contractor further agrees that if an actual or potential organizational conflict of interest is discovered after this Agreement is executed, Contractor will make a full disclosure in writing to Company. This disclosure shall include a description of actions which Contractor has taken or proposes to take, after consultation with Company, to avoid, mitigate or neutralize the actual or potential conflict. 7. Representations and Warranties. Contractor hereby represents and warrants that (a) the Services shall be performed in a professional, workmanlike manner, and with the exercise of good judgment, in light of applicable laws, industry standards and Company policies and that, for any defective or non-confirming Services identified by the Company during a period of one year after completion of the Services, Contractor shall re-perform such identified Services, to include deliverables or reports, without additional charge to Company; (b) Contractor’s work product for Company shall be an original work of Contractor and any third parties shall have executed assignment of rights reasonably acceptable to Company; (c) unless otherwise stated, neither the Contractor’s work product, nor any element thereof, shall infringe the copyright, trademark, patent or trade secret rights of any third party or be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments; (d) Contractor shall not grant, directly or indirectly, any rights or interest whatsoever in the Contractor’s work product to third parties; (e) Contractor has full right and power to enter into and perform this Agreement 13800 Coppermine Road #384 Herndon VA 20171 (tel) XXX-XXX-XXXX (fax) XXX-XXX-XXXX email:XXX@XXXXXX.XXX website: www.newoasisedu.com Where the dream begins New Oasis International Education without the consent of any third party; (f) Contractor shall take all necessary precautions to prevent injury to any persons (including employees of Company) or damage to property (including Company’s property) during the term of this Agreement; (g) 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, whether or not such claim is based upon his or her condition or on the alleged negligence of Company in permitting his or her use; (h) Contractor is eligible to legally work in the United States (being a citizen, documented resident alien or possessing other eligibility documentation), and free from any legal or contractual restraints prohibiting him or her from entering into this Agreement; (i) Contractor shall not display or disclose, anonymously or by true or fictional name, in any form or fashion including, but not limited to, publication on or via the Internet, a website, Blog, email, discussion group, bulletin board, by means now known or hereafter devised and/or by all other means of electronic dissemination, any Confidential Information, or disparage or defame the Company or anyone associated or employed therewith, or Contractor’s affiliation or experiences with Company; and (j) Contractor shall not use, copy, distribute, sell, infringe or violate any legal right of Company including, but not limited to, publicity rights, privacy rights, moral rights, copyright, trademark, trade secret and patent rights. 8. Indemnification. Contractor shall defend, indemnify and hold Company harmless from and against all claims asserted by a third party and related damages, losses and expenses, including attorneys’ fees, arising out of or resulting from the Services performed or neglected to be performed by Contractor, or from breach of the foregoing warranties by Contractor, provided that any such claim, damage, loss or expense is caused by the negligence of Contractor, anyone directly employed by Contractor, or anyone for whose acts Contractor may be liable. 9. Termination. Either party may terminate this Agreement with two-week notice to the other for any reason. Upon termination of the Agreement or earlier as requested by Company, Contractor shall deliver to Company any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Contractor’s work product for Company, third party information obtained through Company or Confidential Information of Company. Contractor shall not retain any copies of such materials. 10. LIMIT OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO CONTRACTOR FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. EXCEPT FOR PAYMENTS FOR SERVICES, UNDER NO CIRCUMSTANCES, REGARDLESS OF THE BASIS OF THE CLAIM SHALL COMPANY'S LIABILITY TO CONTRACTOR EXCEED ONE THOUSAND UNITED STATES DOLLARS (U.S. $1000). 11. Property and Inventions. Contractor and New Oasis further acknowledge and agree that all documents, graphic designs, and any other materials created, in whole or in part, by any Contractor in the course of providing services to New Oasis under this Agreement, shall be owned by New Oasis and the copyright and all other ownership rights in the materials shall be New Oasis’s. New Oasis and Contractor agree to immediately disclose to one another all discoveries, inventions, enhancements, developments, improvements and similar creations made in whole or in part by any Contractor in the course of providing services to New Oasis under this 13800 Coppermine Road #384 Herndon VA 20171 (tel) XXX-XXX-XXXX (fax) XXX-XXX-XXXX email:XXX@XXXXXX.XXX website: www.newoasisedu.com Where the dream begins New Oasis International Education Agreement. Contractor hereby agrees to assign and will make best efforts to cause the Contractor to assign to New Oasis all right, title and interest to all such materials, and to treat such as “work made for hire” as defined in the Federal Copyright Act. 12. Non-Solicitation of Employees. During the term of Contractor’s engagement with New Oasis and for a period of twenty-four (24) months following the termination of Contractor’s engagement with New Oasis for any reason (“Restrictive Period”), Contractor shall not, directly or indirectly, (a) contact, hire, solicit or encourage to leave New Oasis’s employment any employee, consultant or contractor of New Oasis, or (b) hire any employee, consultant or contractor who has left New Oasis’s employment or contractual engagement within two (2) years of the date such party has ceased his or her employment or engagement with New Oasis. 13. Non-Solicitation of Clients. Contractor further agrees that during the Restrictive Period, Contractor shall not, directly or indirectly, on Contractor’s own behalf or in the service, or on behalf of any other individual or entity, divert, solicit or attempt to solicit or accept business from any individual or entity (a) who is or was a client of New Oasis’s, or actively was sought by New Oasis as a prospective client, at any time during the Restrictive Period ("Client"), and (b) with whom Contractor or Contractor’s Employee had material contact while engaged by New Oasis to provide any services to such Clients or prospects. Contractor further agrees that during the Restrictive Period, Contractor shall not, without the express, written consent of New Oasis, whether directly or indirectly, as an employee, independent contractor, agent or in any other capacity, be employed or engaged by any Client which received services from Contractor, or with which Contractor otherwise had material contact, while engaged by New Oasis. For purposes of this Agreement, “material contact” is defined as emails, phone calls, meetings, text messages, voice mails, and regular mails. 14. Right to Injunction. The parties hereto acknowledge that the Services to be rendered by Contractor under this Agreement and the rights and privileges granted to New Oasis under this Agreement are of a special, unique, unusual and extraordinary character, which gives them a peculiar value, the loss of which cannot reasonably or adequately be compensated by damages in any action at law; and the breach by Contractor of any of the provisions of this Agreement will cause New Oasis irreparable injury and damage. Contractor expressly agrees that New Oasis shall be entitled to injunctive and other equitable relief, without the need to post bond therefor, in the event of, or to prevent a breach of any provision of this Agreement by Contractor. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that New Oasis may have for damages or otherwise. The various rights and remedies of New Oasis under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law. 15. Obligation of Agreement. The provisions of this Agreement shall be binding upon the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns. 16. Severability. In the event that any provision of this Agreement (or any portion thereof) is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired hereby. 13800 Coppermine Road #384 Herndon VA 20171 (tel) XXX-XXX-XXXX (fax) XXX-XXX-XXXX email:XXX@XXXXXX.XXX website: www.newoasisedu.com Where the dream begins New Oasis International Education 17. No Waiver. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall in no way constitute a waiver of any of its rights as set forth herein, at law or equity, or a waiver by either party of any other provision or subsequent default by the other in the performance of or compliance with any of the terms and conditions set forth herein. 18. Assignment. This Agreement shall not be transferred or assigned by the Contractor without the written consent of New Oasis. 19. Costs of Enforcement. If either New Oasis or Contractor is forced to initiate an action or proceeding to enforce any of the terms or provisions of this Agreement as a result of a breach of the Agreement or otherwise, the prevailing party shall be entitled to recover all legal costs and expenses, including, without limitation, reasonable attorneys’ fees. 20. Notice. To be effective, any notice given under this Agreement must be in writing and shall be given to the parties at their respective addresses set forth above. Notice will be effective when received and will be delivered by hand or by overnight delivery service. 21. Governing Law. This Agreement shall be governed by, construed and enforced under the laws of the State of Virginia, notwithstanding any statutes or case law related to conflict of laws between parties residing in different jurisdictions. Venue of any actions between the parties shall be in Fairfax County, Virginia. 22. No Third Party Rights. No rights to any third party are created by this Agreement and no person not a party to this Agreement may rely on any aspects of this Agreement notwithstanding any representations, written or oral, to the contrary. 23. Entire Agreement. This Agreement with all the attached assignment schedules is the entire agreement and supersedes any previous agreement or representation with respect to the subject matter between New Oasis and Contractor. This Agreement shall not be modified in any way except by written agreement signed by both parties. By placing his or her signature below, Contractor affirms that he or she has read and understood the above, has the authority to bind the Contractor and agrees to the provisions of this Agreement. Understood and Agreed by: (Contractor Signature) (Date) (Contractor Name) Understood and Agreed by: (Signature of New Oasis Representative) (Date) (Name of New Oasis Representative) 13800 Coppermine Road #384 Herndon VA 20171 (tel) XXX-XXX-XXXX (fax) XXX-XXX-XXXX email:XXX@XXXXXX.XXX website: www.newoasisedu.com Where the dream begins New Oasis International Education Exhibit “A” ASSIGNMENT SCHEDULE 1. Scope of Services: Teach students English concepts in the areas of grammar, listening, speaking, reading, writing, and Test of English as a Foreign Language (TOEFL) preparation by using a provided ELL curriculum as guidance. Complete student progress reports every 2 weeks (includes accomplishments, overall student progress, and tasks for next 2 weeks). Communicate with the ELL Coordinator and Academic Coordinator as needed. Acknowledged and Agreed: Contractor [signature]: (Contractor Signature) (Date) By [print name]: Exhibit “B” SERVICE PAYMENT FOR ELL INSTRUCTOR 1. Service payment: The ELL program is designed for two semesters of the school year. There are totally sixty hours tutoring hours, thirty hours per semester. The contractor will be paid at the rate of $30.00 per hour for the tutoring hours spent on the students. Upon School and New Oasis’ approval, students may be allowed to drop the ELL classes in the middle of the school year. The Contactor’s total number of tutoring hours for the year will be impacted accordingly if any student drops the classes. The Contractor shall submit the invoice to New Oasis no later than 25th of each month starting from September 25th, 2013 till June 25th, 2014. New Oasis shall pay the Contractor the amounts due within seven business days after the invoice is received. Acknowledged and Agreed: Contractor [signature]: (Contractor Signature) (Date)
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