CONSULTING AGREEMENT (ELECTRONIC VERSION)
THIS CONSULTING AGREEMENT (the “Agreement”) is entered into this effective as of the date executed by the Company (the “Effective Date”), by and between ProCoach.Network, LLC, an Ohio limited liability company (the “Company”) and the party executing this Agreement as Consultant (the “Consultant”).
WITNESSETH:
WHEREAS, Consultant is experienced with consulting athletes in the game of football and/or analyzing players skills and performance and the Company has engaged Consultant to render such services for the Company’s clients;
WHEREAS, Consultant and the Company now desire to enter into an agreement setting forth the terms and conditions pursuant to which the Consultant’s services are to be performed for the benefit of the Company as more specifically set forth in this Agreement.
NOW, THEREFORE, in pursuance of the above and in considera-tion of the terms and conditions contained herein and for other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1 Term and Termination: This Agreement shall commence on the Effective Date first set forth above and, except as set forth below, shall continue until terminated by either party, at any time, and for any reason or for no reason, upon thirty (30) days’ written notice to the other party (“Term”), provided, however, any provisions contained herein which survive termination of this Agreement shall remain enforceable and binding upon the parties. This Agreement may be terminated immediately by the Company upon Consultant’s death, disability, or upon the breach of, failure to fulfill, any of Consultant’s agreements or obligations hereunder. Upon any termination of this Agreement, the Company’s sole obligation to Consultant, or his estate shall be to pay any accrued but unpaid Fees (hereinafter defined), if any, through the effective date of termination
2 Consultant Services: Company will inform Consultant when a client has requested consulting services from the Company. Consultant agrees to promptly accept or reject the consulting work offered to Consultant in accordance with the performance guidelines of Company (“Company Guidelines”). If Consultant accepts said consulting work, Consultant agrees to make himself available at all reasonable times to provide the services and duties as may be mutually agreed upon by the Company and Consultant. The Consultant will perform his duties for the benefit of the Company faithfully and to the best of his ability. Consultant agrees that the Company may use the Consultant’s name and images of the Consultant or the Consultant’s likeness to promote the Company (collectively “Consultant’s Likeness”). The Company shall have the right and license to use Consultant’s Likeness in all of Company’s advertising and marketing materials, whether in print, electronic or any other form or media.
3 Fees:
a Free Form Consultations: In consideration of the services to be performed by Consultant hereunder and the Consultant’s compliance with the Restrictive Covenants, during the Term hereof, the Company agrees to pay the Consultant an hourly fee of Two Hundred Dollars ($200) per hour with respect to the services provided by the Consultant for the benefit of the Company. Consultant agrees that he will not exceed the amount of consulting time which the client has purchased prior to the consultation.
b Training Systems Analysis: In consideration of the services to be performed by Consultant hereunder and the Consultant’s compliance with the Restrictive Covenants, during the Term hereof, the Company agrees to pay the Consultant a flat fee of Two Hundred Dollars ($200) with respect to the services provided by the Consultant for the benefit of the Company. Such Training System Analysis typically require ninety minutes of service, and will not be less than sixty minutes not longer than 120 minutes.
c Notwithstanding the foregoing, with respect to the hourly rate for Free Form Consultations and the flat fee for Training Systems Analysis, Consultants who are specifically chosen by the client as “Premier Consultants” will receive an hourly rate or flat fee, as the case may be, of Two Hundred and Twenty Five Dollars ($225). Furthermore, Consultants may elect to designate their services as “Premier Plus” where they are able to set their own hourly fee and flat fee. Any and all fees payable pursuant to this Section 3 are collectively referred to herein as the “Fees.”
d The parties agree that Company may withhold a portion of the Fees payable hereunder until the Customers of Company have the opportunity to rate Consultant and Company has an opportunity to verify and investigate said ratings. The terms and conditions of said withholdings and ratings are set forth in more detail in the Company Guidelines. The Fees may be modified from time to time upon mutual agreement of the parties.
4 Relationship of Parties: Consultant is retained by the Company only for the purposes and to the limited extent set forth in this Agreement, and Consultant’s relation to the Company under this Agreement shall at all times be that of an independent contractor and not that of an employee, partner or joint venturer. Consultant shall (i) not be eligible for any employee benefits, including without limitation, vacation and holiday time, sick leave, pension and profit sharing plan contributions, life insurance and medical plans, and indemnification for damages or injuries sustained while performing job services; and
(ii) be solely responsible for the withholding and payment of all income, employment, social security, workers compensation, disability and other taxes due on the Fees and other amounts payable hereunder, if any. Except to the limited extent specifically authorized by the Company in an advance writing, Consultant shall have no right or authority, whether express or implied, to enter into any commitments, agreements or other understandings on behalf of the Company, bind the Company in any manner whatsoever, or otherwise incur any obligations or liabilities of any kind on behalf of the Company.
5 Compliance with Law/Standards: Consultant shall provide the services hereunder in accordance with:
(i) all Federal, state and local laws, rules and regulations;
(ii) the Company’s policies, rules and regulations; and (iii) any contractual relationships between the Company and its customers, vendors or other third parties. Consultant, in connection with providing the services hereunder, shall: (a) maintain the highest ethical standards; and (b) provide services that meet or exceed applicable quality standards. Consultant shall provide services hereunder without regard to a person’s race, ethnicity, religion, national origin, citizenship, age, sex, sexual orientation or economic status.
6 Confidential Information:
a Consultant hereby agrees that he has in the past held, and at all times in the future shall continue to hold in strictest confidence, and not to use, except for the exclusive benefit of the Company, or to disclose to any person or entity, any Confidential Information of the Company. For purposes of this Section, “Confidential Information” means any Company proprietary information, trade secrets or know-how, including, but not limited to, all
(i) data, methods, techniques, product specifica-tions, know-how, formulae, compositions, processes, designs, samples, inventions and ideas, past, customer lists, current and anticipated customer requirements, suppliers and supplier lists, owners, members, agents, independent contractors and other representatives, price lists, market studies, business plans, computer software and programs (including object code and source code), structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information), and any other information, however documented, that is a trade secret within the meaning of the Ohio Uniform Trade Secrets Act (Ohio Revised Code §1333.61 et seq.); and
(ii) information concerning the business and affairs of the Company, which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the Consultant by the Company, or by any of its respective owners, employees, agents, consultants, advisors, or other representatives, including business brokers, legal counsel, accountants and financial advisors (“Representatives”), or is otherwise obtained from review of the Company’s documents or property or discussions with the Representatives, irrespective of the form of the communication, and also includes all products, notes, analyses, compilations, studies, summa-ries, and other material prepared by the Consultant containing or based, in whole or in part, on any information included in the foregoing.
b Consultant recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant hereby agrees that he has in the past held and shall in the future hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out Consultant’s duties for the Company consistent with the Company’s agreement with such third party.
c Fines for copying, recording or sharing video or other ProCoach.Network property is a minimum of $10,000 per infraction. We are very serious about protecting our information and as a ProCoach.Network consultant you need to agree to this honesty policy.
7 Non-Solicitation Agreement: At all times during the Term and for a period of twelve (12) months thereafter, Consultant shall not, either directly or indirectly, communicate with, solicit, or induce
(i) any customer, potential customer (a person or entity to which the Company has made a proposal or which has been specifically identified by name as a prospective customer) or prior customer (a customer having made a purchase from the Company within the two (2) year period prior to the date of termination of this Agreement) of the Company for the purpose of providing goods or services similar to those provided by the Company for someone other than the Company, or
(ii) attempt to hire, recruit, encourage, take away, hire any employee, contractor or other representative of the Company, or cause any such person to leave his or her position with the Company either for the Consultant or for any other entity or person.
8 Non-Competition Agreement: At all times during the Term and for a period of twelve (12) months thereafter, Consultant shall not, anywhere throughout the world, directly or indirectly, individually or through any other business entity, including, without limitation, any customer or competitor of the Company, invest in, control, manage, operate, be employed or engaged (whether as an independent contractor, consultant, or otherwise) by, participate or engage in, or own any interest in, any individual, proprietorship, partnership, corporation, limited liability company, joint venture, trust or any other form of business entity, whether as a proprietor, partner, member, shareholder, joint venturer, trustee, or in any other capacity whatsoever, in any online or virtual business or activity in which the Company participated in during the Term.
9 Expiration: the earlier of the expiration of the Term or request by the Company, Consultant will deliver to the Company (and will not keep in his possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, formulae, blueprints, sketches, materials, equipment, other documents or property, and summaries or reproductions of any aforementioned items developed by Consultant pursuant to his employment with the Company or otherwise belonging to the Company, its successors or assigns.
10 Confidentiality: No Slander. During the Term and thereafter, Consultant agrees to maintain in confidence the existence of this Agreement, the contents and terms of this Agreement, including any documents incorporated by reference, as well as the consideration for this Agreement. During the Term and thereafter, the Consultant shall not publicly make disparaging statements regarding the Company or any subsidiary or affiliate of the Company, including, without limitation, any of their respective managers, members, management team, employees, contractors, representatives, products or services.
11 Representation of Consultant: As a material inducement to the Company to enter into this Agreement, Consultant represents and warrants to the Company, on the date hereof and throughout the Term, that the execution and delivery of this Agreement by Consultant and the performance of his duties and obligations hereunder will not
(i) violate any law, regulation, rule, order, writ, judgment, injunction, decree, license or permit applicable to Consultant or the services to be provided by Consultant hereunder; or
(ii) violate or conflict with any contractual provisions of, or cause to be an event of default under, any other license, registration, document, agreement, instrument or other materials to which Consultant is a party or is bound.
12 Rights and Remedies Upon Breach of Restrictive Covenants: Consultant represents that.
(i) Consultant is familiar with the agreements, covenants and restrictions set forth in Sections 6, 7, 8, 9 and 10 above (“Restrictive Covenants”);
(ii) the Restrictive Covenants are fair and reasonably required for the protection of the Company’s legitimate business purposes;
(iii) the consideration received by Consultant pursuant hereto is sufficient for Consultant’s Restrictive Covenants;
(iv) Consultant is fully aware of his obligations hereunder; and
(v) the Restrictive Covenants will not interfere unduly with Consultant’s ability to earn a living after the Term. Consultant agrees that the applicable time period described above shall be tolled (i.e., no part of such period shall expire) during the pendency of any breach of the foregoing Restrictive Covenants. In the event that Consultant commits a breach, or threatens to commit a breach, of any of the Restrictive Covenants, the Company shall have the following rights and remedies, each of which shall be independent of the other and severally enforceable, and all of which rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity:
(a) the right to notify anyone entering, or anyone evidencing an intention to enter, into any agreement or arrangement with Consultant that is restricted or prohibited by this Agreement as to the terms and existence and provisions of this Agreement;
(b) the right and remedy to immediate injunctive relief from any violation, and/or specific enforcement, of the Restrictive Covenants, without the requirement of posting a bond or other surety, by any court of competent jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company;
(c) the right and remedy to require Consultant, or anyone engaged in any agreement or arrangement with the Consultant that is restricted or prohibited by this Agreement, to account for and pay over to the Company all compensation, profits or other benefits derived or received by such party as the result of such breach;
(d) the right to reimbursement by Consultant of all fees and expenses (including, without limitation, attorneys’ fees and expenses) incurred by the Company in enforcing its rights under this Agreement in any action in which the Company prevails; and/or
(e) the right to withhold and set off any amounts which may have otherwise been payable pursuant hereto, whether pursuant to Section 3 herein or otherwise.
13 Severability: All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and distinct covenant. In the event any term, provision, or restriction is held to be illegal, invalid or unenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Each party hereto agrees that any such unenforceable term, provision or restriction shall be deemed modified to the minimum extent necessary to permit its enforcement to the maximum extent permitted by applicable law.
14 Notification of Suit: Consultant shall at all times hereafter immediately notify the Company upon learning of any threatened or pending litigation or other action arising out of or related to this Agreement and the activities conducted pursuant hereto. The notification shall be in writing, shall include a detailed description of the action and its basis, and shall include copies of all available documents to such action.
15 Force Majeure: The Company shall not be liable for any delays or failures in performance of any activities or obligations of the Company arising from the relationship created hereunder resulting from causes beyond the reasonable control of the Company, including, without limitation, acts of god, strikes, lockouts, riots, acts of war or terrorism, epidemics, governmental or quasi-governmental regulations superimposed after the fact, fire, communication line failures, power failures, earthquakes, floods, or other natural disasters.
16 Insurance: Consultant shall secure and keep in full force and effect throughout the Term of this Agreement, at his sole cost and expense, commercial general liability insurance, including, without limitation, contractual liability and personal injury liability, written on an occurrence form, with such nationally recognized insurers and with limits of liability acceptable to the Company, in its reasonable discretion. All such policies of insurance shall name the Company as an additional insured and shall provide that they may not be modified or terminated except upon thirty (30) days’ prior written notice to the Company. Consultant shall provide the Company certificates evidencing the insurance required above prior to performing any services hereunder.
17 Indemnification: In addition to any other remedies provided herein, the Consultant agrees to defend, indemnify and hold the Company, its subsidiaries and affiliates, and their respective members, managers, employees, agents, advisors and representatives (collectively, the “Indemnities”) harmless from and against, and pay or reimburse such Indemnities for any and all claims, demands, losses, damages, liabilities, obligations, costs and expenses (including reasonable attorneys’ fees), whether fixed or contingent, liquidated or unliquidated, matured or unmatured, and whether or not resulting from third party claims, resulting from Consultant’s breach of this Agreement, or negligence or intentional misconduct in the performance of his respective obligations and duties hereunder.
18 No Waiver of Rights: Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a single or partial exercise preclude any further exercise of any right, power, or privilege by any party.
19 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. With respect to any disputes arising pursuant hereto, each party: (i) irrevocably submits to the exclusive general jurisdiction of the courts located in Hamilton County, State of Ohio; (ii) consents that any such action or proceeding may be brought in such courts; (iii) waives any objection that he may have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in such or any inconvenient court and agrees not to plead or claim the same; and (iv) agrees that service of process in any such action or proceeding may be effected in accordance with the provisions of Section 21 hereof.
20 Assignment: This Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company. None of the rights of Consultant to receive any form of compensation payable pursuant to this Agreement may be assigned or transferred except by will, estate planning trust, or the laws of descent and distribution. Any other attempted assignment, transfer, conveyance or other disposition of Consultant’s right to compensation or other benefits will be null and void. The obligations, duties and services to be provided by Consultant hereunder are personal and as such may not be assigned or delegated, in whole or in part.
21 Notices: Any notice required to be given to either party pursuant hereto shall be in writing and shall be deemed to have been given when delivered personally or one (1) day after having been sent by overnight courier service or three (3) days after having been sent by certified or registered mail, postage prepaid, return receipt requested, duly addressed to the party concerned at the address indicated on the signature page hereto or to such changed address as either party may subsequently give such notice of in accordance with this Section.
22 Integration: This Agreement represents the entire agreement and understanding between the parties as to the subject matter herein and supersedes all prior or contemporaneous agreements whether written or oral. No waiver, alteration or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the parties hereto.
23 Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement.
24 Legal Representation: The parties acknowledge that they understand the terms and conditions of this Agreement, and that they have had the opportunity to review the Agreement with legal and accounting advisors of their own choosing.
25 Legal Construction. This Agreement is to be deemed to have been prepared jointly by the parties hereto, after arms-length negotiations, and any uncertainty or ambiguity existing herein shall not be interpreted against any party, but according to the application of the rules regarding interpretation of contracts.
26 Headings; Gender; Number: The headings contained in this Agreement are for convenience only and shall not be construed as substantive provisions of this Agreement. Words of any gender shall include any other gender, unless the context requires otherwise. Singular words shall include the plural and plural words shall include the singular, unless the context requires otherwise.
27 Survival: The agreements, covenants and obligations contained in this Agreement shall survive any termination of this Agreement.
COMPANY:
ProCoach.Network, LLC
5390 Crestwood Drive
Mason, OH 45040