Affiliate Terms
The Business Behind the Blooms
1. Duties.
Zimmerman engages Affiliate, and Affiliate accepts such engagement, as an independent contractor of Zimmerman for the purpose of assisting Zimmerman with certain responsibilities in producing Zimmerman’s course entitled “The Business Behind the Blooms” (the “Course”). The Course will be marketed and sold by Zimmerman, at Zimmerman’s discretion, on Zimmerman’s website and housed on Zimmerman’s kajabi online course platform. The primary responsibilities of Affiliate are set forth on Attachment “A.”
2. Term.
The term of this Agreement shall commence on the Effective Date and shall continue for a term of one (1) year. This Agreement shall automatically renew for successive periods of one (1) year each unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the current term.
In the event of a breach of a material provision of this Agreement, the non-breaching party shall give the breaching party written notice of such breach; thereafter, the breaching party shall then have no fewer than twenty (20) days to cure the breach and come into compliance; if such breach is not cured within such time period, the non-breaching party shall be free to terminate the Agreement immediately without consequence.
3. Relationship of the Parties.
Affiliate is an independent contractor and is not an employee, servant, partner, or joint venturer of Zimmerman. Zimmerman is contracting with Affiliate for a particular purposes and result, as set forth herein and the manner in which Affiliate achieves that result shall be, so long as reasonable, satisfactory, and acceptable to Zimmerman in the reasonable exercise of its judgment, and in compliance with all applicable laws, in the sole determination of Affiliate.
4. Equipment and Supplies.
Unless otherwise agreed by Zimmerman in writing in advance or as otherwise set forth herein, Affiliate shall be solely responsible for providing, paying for, and maintaining any and all equipment, computers, mobile devices, and other supplies necessary and appropriate for the performance of Affiliate’s services hereunder.
5. Other Agreements.
Affiliate hereby represents that Affiliate is not bound by the terms of any agreement with any other person or entity to refrain from using or disclosing any trade secret or confidential or proprietary information or to refrain from competing, directly or indirectly, with the business of such other person or entity. Affiliate further represents that Affiliate’s performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Affiliate in confidence or trust.
6. Specific Performance.
Zimmerman and Affiliate agree that the remedies of either of the Parties at law for a breach or threatened breach of any of the provisions of this Agreement would be inadequate and, in recognition of this fact, the Parties agree that, in the event of such a breach or threatened breach, in addition to any remedies at law, either of the Parties, without posting any bond, shall be entitled to equitable relief in the form of specific performance, temporary restraining orders, temporary or permanent injunctions or any other equitable remedy which may then be available.
7. Payment.
For his or her services, Zimmerman shall pay Affiliate the sum of 25% of all affiliate sales of the Course during the Term. Zimmerman shall submit payment to Affiliate 30 days after the sale for sales of the Course during the prior month.
8. Taxes.
Zimmerman is not responsible for withholding, and shall not withhold or deduct from payment to Affiliate, federal, state, or local withholdings, FICA, FUTA, or other taxes or withholding of whatever sort, unless such withholding becomes legally required. Affiliate is solely responsible for withholding and paying all appropriate income tax, employment tax, insurance, and other amounts due or claimed by any governmental authority to be due that are attributable to any payment made pursuant to this Agreement. Further, Affiliate is also solely responsible for withholding and paying over all appropriate income tax, employment tax, insurance, and other amounts due or claimed by any governmental authority to be due that are attributable to any remuneration paid by Affiliate to its employees, agents, representatives, contractors, or other affiliated person or entities. In the event that any governmental agency shall challenge the question whether withholdings ought to have been made from the payments from Zimmerman to Affiliate, and/or in the event that any governmental agency or court shall determine that withholdings ought to have been made or are otherwise due as a result of such payments (including any penalties assessed for the failure to make such withholdings), Affiliate agrees to reimburse, indemnify, defend, and hold Zimmerman harmless from any such claim or determination, including, without limitation, the payment of any amounts due, penalties, and attorneys’ fees and costs associated therewith.
9. Schedule and Hours.
Affiliate has no obligation to work any particular days or hours except for those agreed to by the parties (e.g. meetings). Affiliate shall expend as much time and effort as necessary to carry out her responsibilities hereunder.
10. Benefits.
Neither Affiliate nor its employees, agents, representatives, contractors, or other affiliated persons or entities is entitled to receive from Zimmerman the benefits which employees of Zimmerman are entitled to receive and shall not be entitled to workers’ compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or Social Security on account of services to Zimmerman.
11. Covenants of Affiliate.
Affiliate covenants and agrees that all property of Zimmerman, including, but not limited to the Course and its contents, information or writings relating to Zimmerman or its clients, customers, proposed customers, or vendors, whether prepared by Affiliate or otherwise coming into the possession of Affiliate, are and shall remain the exclusive property of Zimmerman and shall be returned to Zimmerman upon demand. Further, Affiliate agrees that Affiliate will not hold itself out to the public as being an employee of Zimmerman and shall instead be referred to as and, for payroll and other purposes, shall be treated as an independent contractor. Affiliate acknowledges that Zimmerman would not be entering into this Agreement if Affiliate had not made these covenants, and/or if these covenants were not legally enforceable.
12. Indemnification.
Affiliate assumes full responsibility for, and shall defend, indemnify, and save harmless Zimmerman, Jessica Zimmerman, and Zimmerman’s subsidiaries, parent, partners, and other otherwise affiliated companies and their agents and employees, from and against all liability, suits, claims, damages, costs (including attorneys’ fees) and expenses sustained by Zimmerman by reason of bodily injury, sickness, or death to any person whomsoever (including, without limitation, employees of Zimmerman, employees of Affiliate, and employees of other contractors and subcontractors) and any loss and/or damages to the real or personal property of any person or entity whomsoever (including, without limitation, Zimmerman, Affiliate and employees of Affiliate, and all contractors and subcontractors and their employees) in any way arising out of or in any manner occasioned by or related to i) the performance of Affiliate’s obligations hereunder; ii) the breach by Affiliate of any of its representations or covenants hereunder; or iii) the negligence or intentional misconduct of Affiliate, or her agents or employees.
13. Agreements Required of Affiliate’s Employees.
As material consideration for this Agreement, Affiliate hereby represents and agrees to require, as a condition of his/her employment, each and every of Affiliate’s employees (or principals (if not employees)) who will or may enter upon the premises or property of Zimmerman or any other premises or property to which Affiliate or its employees or principals may be designated on account of work under this Agreement to execute the agreement attached hereto as Attachment “B”. Affiliate assumes full responsibility for, and shall defend, indemnify, and save harmless Zimmerman from and against all liability, suits, claims, damages, and costs (including attorneys’ fees) and expenses sustained by Zimmerman, by reason of Affiliate’s failure to obtain and maintain such an agreement from each and every of its employees or principals who will or may enter upon Zimmerman’s premises.
14. Confidentiality.
Affiliate acknowledges that, during the term of this Agreement, she will have contact with and access to confidential, proprietary, and/or trade secret information of Zimmerman, which information could include, without limitation, customers, potential customers, or vendor lists, the particular needs of Zimmerman’s customers, Zimmerman’s methods of sales, services, pricing, and costs, business methods and techniques relating to the acquisition and servicing of customers generally and/or as to any particular customer, information regarding Zimmerman’s relationships with customers, potential customers, or vendors, business operating procedures, business plans, and similar information (“Confidential Information”). Affiliate acknowledges that such Confidential Information derives economic value from not being generally known and is information that is of economic value to Zimmerman and that would be of economic value to Zimmerman’s competitors and others. Affiliate acknowledges that all Confidential Information is owned and shall continue to be owned solely by Zimmerman. During the term of this Agreement and thereafter, irrespective of the reason for which this Agreement terminates or whether such termination is with or without cause, Affiliate agrees not to use Confidential Information directly or indirectly for any purpose whatsoever (except for purposes under this Agreement) or to divulge Confidential Information to any person or entity other than Zimmerman unless such Confidential Information already has become common knowledge through other than Affiliate’s conduct or unless Affiliate is compelled to disclose it by governmental process (e.g. a subpoena). In the event Affiliate receives or is advised that it will receive governmental process compliance with which would or might require disclosure of Confidential Information, Affiliate shall immediately notify Zimmerman of such and allow Zimmerman a reasonable opportunity to object to such disclosure.
15. Covenants.
Affiliate agrees that during the term of this Agreement and for a period of one (1) year following termination of this Agreement, she will not, directly or indirectly, write content for, produce, publish, or sell any course similar to or competitive with the Course, including any type of course or training on marketing or selling for wedding industry professionals, whether on her own or in connection with any other wedding professional.
Affiliate agrees that the time period and scope specified above are appropriate and reasonably necessary to protect Zimmerman’s business interests. If the restrictions in this Section are held invalid by a court of competent jurisdiction, then those restrictions shall be re-interpreted and deemed to be revised to include the maximum restrictions allowed by law. The Parties agree that Zimmerman’s interests and Affiliate’s obligations hereunder are unique and that monetary damages may not suffice to remedy a breach. Therefore, Zimmerman’s right to specific performance of this Agreement is essential to protect its rights and interests. Accordingly, in addition to any other remedies that Zimmerman may have at law or in equity, Zimmerman will have the right to have the obligations of this Agreement specifically performed by Affiliate. Further, Zimmerman will have the right to obtain injunctive relief (without a requirement to post a bond or other security) to ensure specific performance and prevent a breach of this Agreement.
16. Works Made for Hire.
All content for the Course and any other work performed by Affiliate during Affiliate’s association with Zimmerman pursuant to this Agreement shall be considered a “Work Made for Hire” as defined in the applicable copyright laws, and shall be owned and for the express benefit of Zimmerman. Affiliate acknowledges and agrees that all copyrightable material, including all content of the Course, all writings, software, drawings, and designs, and all ideas, inventions, improvements, developments, and discoveries made, conceived, or reduced to practice by Affiliate, whether individually or in collaboration with others, during the course of performance under this Agreement, are the sole property of Zimmerman. Affiliate agrees to assign or cause to be assigned to Zimmerman all rights, title, and interest in and to all such intellectual property, including without limitation any worldwide copyright(s), moral rights, patent(s), any and all other such rights of whatever kind, and the right to obtain registrations, renewals, reissues, and extensions of the same. Further, upon request, Affiliate shall sign all documents necessary to confirm or perfect the exclusive ownership of Zimmerman to its work product.
17. Waiver and Severability.
Waiver by either party of any breach by the other party shall not operate or be construed as a waiver of any subsequent breach by such party. If any provision, paragraph, or subparagraph of this Agreement is adjudged by any court of competent jurisdiction to be void or unenforceable in whole or in part, such adjudication shall not affect the validity of the remainder of the Agreement, including any other provision, paragraph, or subparagraph. Each provision, paragraph, and subparagraph of this Agreement is separate from every other provision, paragraph, and subparagraph and constitutes a separate and distinct covenant. Provided, however, that it is the intent of the Parties hereto to agree such that Affiliate shall provide to Zimmerman the listed services for the stated remuneration and any enforceable ruling from a court of competent jurisdiction that precludes or significantly impairs such a relationship between the Parties shall render this entire Agreement null, void, and of no effect as of the date of such ruling.
18. Applicable Law.
This Agreement shall be construed and governed in accordance with Arkansas law. The Parties consent to the exclusive jurisdiction of any court sitting in Faulkner County, Arkansas that is competent to hear matters arising under this Agreement for the litigation of any matter arising under or related to this Agreement.
19.Modifications.
This Agreement may not be modified or amended except in a writing signed by both parties hereto.
20. Assignment.
This Agreement may not be assigned by either of the Parties without the prior written consent of the other.
21. Entire Agreement.
This Agreement contains the entire agreement and understanding between Zimmerman and Affiliate with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto.
22. Amendments.
This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge be effected except by an instrument in writing executed by or on behalf of the Party against whom enforcement of any waiver, change, modification, consent or discharge is sought.
23. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and in pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of such counterparts.
24. Section Headings.
The section headings have been inserted for a convenience only and are not to be considered when construing the provisions of this Agreement.
Attachment “A”
Attachment “B”
Attachment “C”
WAIVER OF RIGHTS
In recognition of the fact that any work related injuries which might be sustained by me are covered by state Workers’ Compensation statutes, and to avoid the circumvention of such state statutes which may result from suits against Clay Zimmerman, Inc. d/b/a Zimmerman (“Zimmerman”) and its past and present subsidiaries, parents, partners, and/or otherwise affiliated companies and their agents and employees based on the same injury or injuries, and to the extent permitted by law, I HEREBY WAIVE AND FOREVER RELEASE ANY RIGHTS I MIGHT HAVE to make claims or bring suit against Zimmerman for damages based upon injuries which are covered under such Workers’ Compensation statutes.