INDEPENDENT CONTRACTOR AGREEMENT
This INDEPENDENT CONTRACTOR AGREEMENT (“Agreement”) is made and entered into with an effective date of __________, 2019 (“Effective Date”) by and between ______________________ (“ Owner”) and tradegeeko.com (“TradeGeeko.com”), a subsidiary of IIEC Pvt Ltd ( Indian Institute of Ecommerce, Amar Shah is an authorized representative of TradeGeeko.com and is signing this Agreement on behalf of TradeGeeko.com with the TradeGeeko.com Owners’ authorization and consent.
WHEREAS, Owner desires to own and operate its own eCommerce business;
WHEREAS, TradeGeeko.com offers the services of building a plug and play eCommerce websites based on its wholesale template and providing training and consulting to eCommerce business Owners;
WHEREAS, Owner desires to engage TradeGeeko.com to build a website for Owner and provide initial training and twelve (12) months of consulting to Owner; and
WHEREAS, TradeGeeko.com desires to build a website for Owner and provide initial training and twelve (12) months of consulting to Owner for the consideration specified herein.
NOW THEREFORE, in consideration of the following dependent promises, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties hereby agree as follows:
1. Services to Be Provided by TradeGeeko.com. TradeGeeko.com shall provide all of the following services to Owner (collectively referred to as “Services”):
- TradeGeeko.com shall build Owner an ecommerce website (“Website”), the domain name (“Domain”) of which shall be mutually agreed upon by both parties (in writing or via electronic communication, such as email), which sells a product line mutually agreed upon by both parties (in writing or via electronic communication, such as email);
- TradeGeeko.com shall, upon completion and delivery of the Website to Owner, provide extensive operational training (“Up-Front Training”) to Owner regarding store operations, product management, advertising, marketing, and reporting, among other topics. Up-Front Training shall include one or more of the following, at TradeGeeko.com’s discretion: one-on-one consulting over the phone, Skype, web meeting, or similar communication platform; pre-recorded training videos; pre-written guides and tutorials; and/or other forms of training. The Up-Front Training period shall begin immediately after the Website is delivered to Owner (“Delivery Date”) and shall conclude ten (10) business days after the Delivery Date;
- TradeGeeko.com shall provide twelve (12) months of consulting (“Consulting”) to Owner subsequent to the completion of the Up-Front Training period. Consulting may be provided in one or more of the following ways, at TradeGeeko.com’s sole and absolute discretion and according to the schedule and availability of the consultant (“Coach”) assigned by TradeGeeko.com to consult Owner: telephone consultation, web meeting, email, support ticket system, instant messaging (via Skype, text message, etc.), and/or via other communication platforms. The Scope of this Consulting is specified in Section 6 below. Consulting shall end on the twelve (12) months after the Delivery Date; AND
- TradeGeeko.com shall grant Owner full access to its eCommerce training course at NicheBlueprint.com.
2. Consideration for TradeGeeko.com’s Services. Owner agrees to pay TradeGeeko.com all of the following amounts as compensation for the Services TradeGeeko.com provides to Owner:
- An up-front payment (“Up-Front Payment”) of seventeen thousand five hundred Dollars ($10,000.00 USD), payable within five (5) business days of the Effective Date;
- Ten percent (10%) of the ongoing Net Operating Profits (defined below) generated by the Website and all other sales channels and selling platforms where the Website’s products are sold, including but not limited to Amazon, eBay, Wish, Jane, alibaba, Etsy, Rakuten and other marketplaces, as well as B2B, wholesale and/or offline sales and direct sales (collectively referred to as “Business”); AND
- Ten percent (10%) of the Net Sale Proceeds (defined below) upon the eventual sale of the Business.
The parties agree that the above is fair and equitable consideration for the Services being provided by TradeGeeko.com.
3. Calculation of Net Operating Profits. “Net Operating Profits” shall be calculated by subtracting Allowable Expenses (defined below) from the gross revenues (net of refunds) the Business generates from the Website and all other sales channels and platforms encompassed by the Business.
“Allowable Expenses” include only the following costs and expenses specifically related to the Business: cost of goods sold (calculated using the accrual basis of accounting and using a First In First Out (FIFO) inventory tracking system, and net of cash back through cash-back-generating purchasing portals), shipping/freight costs, third-party fulfillment costs, credit card processing (merchant) fees, dispute and chargeback fees, fraud detection/prevention fees, domain and SSL fees, direct advertising expenses (such as pay-per-click costs, banner ad costs, monthly ad account fees, etc.), affiliate commissions, third-party selling fees, store/web hosting fees and app costs, Website-specific software licenses and subscriptions, costs for outsourced labor and services (only if mutually agreed upon by both parties), and other mutually agreed upon costs and expenses directly related to operating the Business.
The following costs and expenses are specifically excluded from Allowable Expenses, unless mutually agreed upon by both parties: salaries and/or wages to employees (including Owner and parties related to Owner), office/warehouse rent and utilities, computer and/or office equipment costs, office supplies, auto expenses, travel expenses, meals and entertainment, phone expenses, Internet fees, and other Owner discretionary expenses.
On or before the 10th day of the month following each calendar month, Owner shall a) provide a report to TradeGeeko.com showing the calculation of the prior month’s Net Operating Profits (based on the form and/or instructions provided by TradeGeeko.com, which is subject to change at TradeGeeko.com’s discretion), and b) shall make payment to TradeGeeko.com for the amount specified in Section 2(b) above. If the Net Operating Profits for a particular calendar month is zero or less, no payment shall be due to TradeGeeko.com for that month. However, future payments to TradeGeeko.com for subsequent months shall not be reduced due to the net operating loss in prior month(s).
4. Sale of Business. As the Owner of the Business, Owner may choose to sell the Business at any time in its sole and absolute discretion. Owner agrees to notify TradeGeeko.com of its intent to sell the Business prior to selling the Business or listing the Business for sale.
When Owner notifies TradeGeeko.com of its intent to sell the Business, TradeGeeko.com may, in its sole and absolute discretion, choose to make an offer to purchase the Business from Owner. If TradeGeeko.com makes an offer to purchase the Business, Owner may choose to accept or reject TradeGeeko.com’s offer in its sole and full discretion.
If TradeGeeko.com chooses not make an offer to purchase the Business OR if Owner rejects TradeGeeko.com’s offer, TradeGeeko.com shall have the right, in its sole and absolute discretion, to act as the broker for the sale of the Business (either under the tradegeeko.com business entity or under a related business entity). Owner may not sell the Business or list the Business for sale on its own or through another broker without first giving TradeGeeko.com the option, in TradeGeeko.com’s full and absolute discretion, to broker the sale of the Business.
If TradeGeeko.com (or a party related to TradeGeeko.com) chooses, in its sole and absolute discretion, to broker the sale of the Business, the brokering fee shall be fifteen percent (15%) of the gross selling price of the Business. TradeGeeko.com (or the party related to TradeGeeko.com that is brokering the sale eg: iiec Pvt Ltd ) shall have six (6) months to complete the sale of the Business. If TradeGeeko.com (or the party related to TradeGeeko.com that is brokering the sale) fails to complete the sale of the Business within six (6) months, Owner may then use any broker it desires or attempt to sell the Business on its own without the assistance of a broker.
If TradeGeeko.com chooses, in its sole and absolute discretion, not to broker the sale of the Business, Owner may use any broker it desires or attempt to sell the Business on its own without the assistance of a broker.
Regardless of whether TradeGeeko.com (or a party related to TradeGeeko.com) brokers the sale or not, upon the successful sale of the Business, Owner shall pay TradeGeeko.com the portion of the Net Sale Proceeds outlined in Section 2(c) above. “Net Sale Proceeds” is defined as the net amount of money received from the sale of the Business after paying all brokering fees, listing fees, sale commissions, escrow fees, wire transfer fees and any other selling expenses and after satisfying all of the Business’ debts and payables to suppliers, vendors and other creditors.
5. Term & Termination. This Agreement shall remain in force until such time that any one (1) of the following events occurs:
- The Business is sold in accordance with the terms outlined in Section 4 above;
- Owner chooses, in its sole and absolute discretion, to terminate this Agreement, as follows: Owner may choose, in its sole and absolute discretion, to terminate this Agreement at any time after the six (6) month anniversary of the Delivery Date. If Owner terminates the Agreement, Owner shall be required to immediately pay TradeGeeko.com the amount TradeGeeko.com would have received under Section 2(c) if the Business were sold (assuming zero brokering fees or selling costs) for thirty-six (36) times the average monthly Net Operating Profits over the twelve (12) month period immediately preceding the termination date (or, if terminated prior to twelve (12) months from the Delivery Date, the average monthly Net Operating Profits over the lifetime of the Business); OR
- The parties execute another agreement that formally terminates this Agreement and sets forth the terms of the termination of this Agreement.
6. Scope of Consulting. In providing Consulting to Owner, the Coach will provide instruction, training, suggestions, ideas and/or opinions about how Owner should operate the Business, but neither TradeGeeko.com nor the Coach shall perform operational tasks of the Business. Consulting shall be limited to the scope of the Business itself and shall not include consulting about Owner’s other websites, projects or ventures, or general ecommerce or Internet marketing topics not directly related to Business. TradeGeeko.com may, in its sole and absolute discretion, limit Consulting to eight (8) hours per month, with no more than four (4) hours over the phone/Skype. If such a limit is imposed by TradeGeeko.com, Owner may not “bank” unused Consulting hours in one calendar month and receive additional Consulting hours in a subsequent month.
7. Business Accounts. Unless mutually agreed upon in writing (or electronic communication, such as email) by both parties:
- The Domain shall be held in Owner’s domain registrar account;
- Website shall be hosted by WordPress, and the WordPress store subscription shall be held in IIEC Pvt ltd’s WordPress account (and Owner shall have admin access to the WordPress store admin panel);
- If the Business carries inventory, the Business’ stock of inventory shall be stored at Amazon Fulfillment and orders shall be fulfilled by Amazon Fulfillment ( Owner shall control the Amazon Fulfillment account, but TradeGeeko.com shall have admin access to it); AND
- The Business’ Facebook page, Facebook Pixel, and Facebook Ads Manager account shall all be held in TradeGeeko.com’s Facebook account (and Owner shall have admin access to all said accounts).
8. Owner Representations. Owner represents, warrants and covenants that, during the term of this Agreement:
- Owner will not re-brand the Website or the products sold on the Website or re-launch the Website on a new domain other than the Domain without the express written consent of TradeGeeko.com;
- Neither Owner nor a party related to Owner will launch a separate website or business (or consult or receive any benefit whatsoever from a separate website or business) that sells the same or substantially similar products as those sold on Website;
- Neither Owner nor a party related to Owner will launch a separate website or business (or consult or receive any benefit whatsoever from a separate website or business) that sells products sourced from the same manufacturer that Business sources products from; AND
- Owner will not make any structural changes to the Business (including but not limited to “spinning off” a portion of the Business to another website or entity, merging with another website or business, discontinuing a profitable product line of the Business, or discontinuing or restructuring a profitable sales channel) that would reduce the Net Operating Profits of the Business and/or the expected Net Sale Proceeds from the eventual sale of the Business.
9. Relationship of the Parties – Independent Contractor. The work and Services provided by TradeGeeko.com under this Agreement are done so as an independent contractor and not as an employee of Owner. This Agreement shall not render TradeGeeko.com an employee, partner, e, or party to a joint venture with Owner. TradeGeeko.com acknowledges that except as expressly contained in this Agreement, it does not have any right, privilege, power or benefit provided to employees of Owner. TradeGeeko.com shall not be entitled to vacation, retirement, sick leave, unemployment or other fringe benefits from Owner or as employees of Owner and TradeGeeko.com hereby waives any and all claims to such. Owner shall not withhold from sums payable to TradeGeeko.com any amounts for state or federal income tax or for FICA taxes or for taxes or other amounts owing to any other governmental entity of any kind anywhere in the world. TradeGeeko.com hereby represents, warrants and covenants that it understands that it is solely responsible for all state and federal taxes and social security payments and taxes or other amounts owing any other governmental entity of any kind anywhere in the world which are applicable to money received for services provided pursuant to this Agreement.
10. Method, Means and Manner of Performance. TradeGeeko.com shall have the sole right to control and direct the means, manner and method by which it performs the Services required by this Agreement. TradeGeeko.com is free to dispose of such portion of its time, energy and skill during regular business hours as it sees fit and to such persons and entities as it deems advisable. Subject to applicable law, TradeGeeko.com has the right to perform the services required by this Agreement at any place, location or time. Nothing in this Agreement shall be construed to interfere with or otherwise affect the rendering of services by TradeGeeko.com in accordance with its independent and professional judgment. During the term of this Agreement, TradeGeeko.com shall devote the time, energy, and skill necessary to perform its duties under this Agreement in a timely and productive manner. Services provided by TradeGeeko.com are on a best effort basis.
11. Dispute. If a dispute arises concerning this Agreement, the parties shall first make a good faith effort to settle the dispute privately or through mediation conducted by a mediator to be mutually selected by the parties. The cost of the mediator shall be paid 50% by Owner and 50% by TradeGeeko.com. The parties shall cooperate fully with the mediator and shall attempt to reach a mutually satisfactory resolution of the dispute.
In the event settlement is not reached within ninety (90) days after service of a written demand for mediation, any and all unresolved dispute, controversy or claim arising out of or relating in any way to this Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of this Agreement, shall be exclusively resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect, unless otherwise mutually agreed upon by the parties.
Any decision or award as a result of any arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact. The parties shall not be entitled to discovery in the arbitration. Each party shall be responsible for and bear their own legal fees, expenses and costs in any arbitration proceeding and in any proceeding in court to enter and enforce a judgment on any arbitration proceeding. The arbitrator shall have no authority to award attorney fees. The award in the arbitration proceeding shall be final and binding on the parties, and judgment on such award may be entered and enforced in any court having competent jurisdiction. The parties have no authority to revoke, amend, appeal, or overrule the arbitrator’s decision, except by the unanimous written consent of all of the parties. The arbitrator shall have no authority to award and in no event shall either party be liable to the other party or to any other person or entity with respect to any subject matter of this Agreement, under any statute, equity, common law, tort, contract, estoppel, negligence, strict liability or other theory, for any (a) punitive, incidental, special, consequential, future, or indirect damages or (b) damages resulting from loss of sale, business, profits, data, opportunity or goodwill, even if the remedies provided for in this Agreement fail of their essential purpose and even if such party has been advised of the possibility of any of the foregoing damages, nor shall the arbitrator be entitled to issue injunctive or other equitable relief.
The parties acknowledge that, by these arbitration provisions, they may be waiving their rights to seek relief in court, with or without a jury, for any breach or violation of this Agreement, and/or any violation of their constitutional or statutory rights. The parties agree that the determination of the damages for breach or other violation of this Agreement would be difficult, speculative and costly to determine, and that, as such, the parties agree, as being fair and not punitive, that in no event shall the amount awarded to the prevailing party in any dispute exceed the amount owed to the prevailing party under the terms of this Agreement. The arbitrator’s decision shall be confidential except that any judgment upon the award rendered by the arbitrator may be entered and enforced in any court having proper jurisdiction. This dispute section of the Agreement shall survive the termination or cancellation of this Agreement.
12. Disclaimer. While both parties anticipate that Owner’s Business will generate worthwhile revenues and profits, Owner understands and agrees that search engine rankings, traffic, sales and profits are subject to a wide variety of factors and influences, many of which are outside of TradeGeeko.com’s control and difficult or impossible to foresee, and many of which are highly dependent upon Owner’s operation of the Business. Accordingly, Owner acknowledges that TradeGeeko.com cannot and does not make any promises or guarantees regarding the search engine rankings, traffic, sales or profits of the Business. Owner understands and agrees that this transaction involves risk and that past performance by TradeGeeko.com or its Owners and/or directors does not guarantee future results.
A. Time is of the Essence. Time is of the essence for all terms and conditions of this Agreement.
B. Dollar Amounts. All dollar amounts and payments stated in this Agreement are represented and shall be made in United States dollar amounts.
C. Paragraph Titles & Headings. The titles and headings of the various sections, paragraphs, and subparagraphs of this Agreement are used only for convenience of reference and are not intended to limit or expand the intent of the parties as expressed in this Agreement and shall not affect the construction of any provisions of this Agreement.
D. Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the parties may require.
E. Necessary Documentation. The parties shall sign all instruments, agreements and documents of any kind or nature necessary to effectuate this Agreement and/or as reasonably may be required to carry out each of the provisions and the intent of this Agreement.
F. Severability. If any provision of this Agreement is, for any reason, held by a court or other tribunal of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the invalid, void or unenforceable provision shall be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
G. Waiver. No waiver of any provision of this Agreement shall be valid unless in writing, signed by the party against whom the waiver is sought to be enforced. The failure of a party to insist upon the strict performance of any of the terms set forth in this Agreement, irrespective of the number of violations which may occur, shall not be deemed to be a waiver of any rights or remedies that any party may have and shall not be deemed a waiver of any subsequent breach of performance of any of the terms contained in this Agreement.
H. Binding Effect. This Agreement is binding upon and shall inure to the benefit of the parties and their heirs, personal representatives, successors and assigns.
I. Survival/Merger. The provisions of this Agreement, including but not limited to the representations, warranties, covenants and indemnity agreements set forth herein, shall survive any termination of this Agreement and shall not merge into any instrument delivered and accepted upon closing of the transaction herein contemplated.
J. Amendments or Modifications. This Agreement may be amended or modified only by a writing signed by both parties. This Agreement may not be amended or modified orally or by course of dealing.
K. Counterparts & Electronic Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. A faxed copy of a signature, scanned copy of a signature, or electronically signed signature shall be equally as effective as and deemed to be the same as an original signature for all purposes.
L. Competent to Enter Agreement. The parties represent and declare that each is of legal age, sound mind and competent or authorized to enter into a legally binding transaction and that the parties execute this Agreement recognizing the legal significance of the same. The parties represent and declare that the undersigned have read the foregoing Agreement and fully understand its contents and acknowledge that they have had the opportunity to retain independent counsel for advice on legal and tax matters relating to this Agreement and that they execute this Agreement freely, voluntarily and without duress or undue force, pressure or influence and that each is authorized to and, by executing this Agreement, hereby does bind themselves and/or the entity they represent.
M. Complete Agreement. This Agreement constitutes and represents the entire, final, complete and exclusive agreement between the parties hereto with respect to the subject matter hereof, and all other prior agreements, representations, warranties, covenants, promises and conditions, verbal or written or electronic transmission, among the parties are superseded and merged herein. In executing this Agreement, the parties agree that neither of the parties have relied upon any other agreement, representation, warranty, covenant, promise or condition, other than those contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.
Owner tradegeeko.com (Subsidiary of IIEC Pvt Ltd )
_____________________ (“ Owner”)
______________________Amar Shah, authorized representative of