This Massage Therapy Independent Contractor Agreement (this “Agreement”) is dated as of the Effective Date in the Order Form and is by and between (“Exos”) and the Contractor specified in the Order Form (“Contractor”). Capitalized terms used and not defined in this Agreement are as defined in the Order Form.
- Services. Contractor agrees to perform the services at the Site as specified in a signed Order Form (the “Services”) at the Service Location as specified in the Order Form (the “Site”).
- Control & Delegation. Contractor shall control the manner in which it performs the Services. The person signing the Order Form on behalf of Contractor will personally provide all Services, unless Exos otherwise agrees in writing that Contractor may delegate performance of Services to others (such agents, employees or subcontractors of Contractor, “Representatives”). Contractor and its Representatives shall comply with this Agreement and agree to abide by any policies or procedures provided by Exos to the extent they apply in Contractor’s capacity as a contractor, initially, the Drug and Alcohol Policy, Tobacco-Free Policy, Anti-Harassment Policy, and Acceptable Use Policy) which will be considered addendums hereto. Contractor acknowledges and agrees that Contractor shall be responsible for any action, breach, omission, inaction, or negligence by any Contractor Representatives. Contractor shall ensure all of its Representatives agree to abide by such exhibits before entering the Site. Contractor-specific and proprietary massage therapy client “intake” paperwork must be reviewed by Exos designated representative prior to implementation at the Site. Exos has a client “intake” form template that can be used by Contractor, at Contractors discretion. Contractor must store participant massage therapy intake paperwork in an Exos approved location onsite. Exos understands that Contractor may and does provide similar services to other entities.
- Compensation. Contractor will invoice Exos for the Fees specified in the Order Form, and Exos will pay all undisputed invoices within 45 days of receipt. Contractor will ensure invoices accurately reflect the Services. Contractor shall be responsible for all expenses that it incurs under this Agreement, except as may be specifically set forth in an Order Form. Unless otherwise specified in an Order Form, Exos will collect the fees for all massage sessions conducted by Contractor at the Site.
- Commissions. If Contractor will receive a commission percentage on massage, as specified in the Order Form, Exos will pay Contractor a percentage, which percentage will be set forth in the Order Form, for all massage sessions conducted by Contractor at the Site. Contractor’s right to the commission shall accrue when the fees which are the basis of the commission stated above have been paid by the customer. Should a customer fail to pay or should a refund be issued for any reason, no commission will be owed to Contractor for such massages to the extent of such non-payment or refund. Within 15 days of the end of each calendar month, the parties will meet to review the massage sessions conducted and will provide Exos with documentation concerning the applicable massage appointments conducted. Within 30 days of such meeting and upon presentation of invoice from Contractor, Exos shall pay Contractor such amount.
- Term & Termination. The term of this Agreement begins on the Effective Date and ends on the Expiration Date specified in the Order Form (the “Term”). If the specified Expiration Date is “Auto Renew” or “Evergreen” or words of similar meaning, Contractor may end the Term upon 90 days’ prior written notice to Exos. Regardless of the specified Expiration Date, Exos may end the Term upon notice to Contractor. Upon termination, the Contractor will deliver to Exos an invoice for the Services performed prior to the date of termination.
- Independent Contractor Status. Contractor shall provide the Services as an independent contractor on a nonexclusive basis and shall not be deemed an employee of Exos. Contractor shall comply with all federal, state, and local laws, rules and regulations that now apply or may in the future apply to Contractor, Contractor’s business, equipment, and any personnel Contractor engages to provide Services to Exos under this Agreement. Contractor is not authorized to enter into any contract, assume any obligation on behalf of, or otherwise bind Exos. Nothing contained in this Agreement or otherwise shall be deemed to create any partnership, joint venture, employment or relationship of principal and agent between the parties. Contractor is solely responsible for Contractor’s acts and for the acts of Contractor’s Representatives in performing the Services.
- No Payroll or Employment Taxes. Exos shall not treat Contractor as an employee for federal, state, or local tax purposes, or for any other purpose. Exos shall not withhold or pay payroll or employment taxes of any kind with respect to any amounts that Contractor is paid under this Agreement, including but not limited to, FICA, FUTA, federal and state, and local taxes, state disability insurance tax, and state reemployment insurance benefits tax, nor shall Exos make any such withholdings or payments on behalf of any Contractor Representative. Contractor agrees that Contractor is responsible for making all filings with and payments to the Internal Revenue Service and state and local taxing authorities and agencies as are appropriate to Contractor’s status as an independent contractor.
- No Workers’ Compensation, Reemployment, or Other Benefits. Exos has not obtained and will not obtain workers’ compensation insurance for Contractor or for any employee or agent of Contractor. Contractor shall be solely responsible for any and all compensation and/or benefits due to Contractor’s employees or agents, and shall comply with all applicable laws with respect to worker’s compensation, withholding taxes, unemployment compensation, social security payments, and any other charges with respect to Contractor, Contractor’s employees and agents. Contractor understands that neither Contractor, nor Contractor’s employees or agents, are entitled to worker’s compensation, reemployment benefits or any other benefits or compensation afforded to an employee of Exos, due to Contractor’s status as an independent contractor.
- Warranty. Contractor represents and warrants to Exos that Contractor: (a) is fully qualified by previous education, training, and experience to provide the Services; (b) will maintain at all times any massage therapy certification, licenses and permits required by any federal, state or local government authority to perform the Services at the Site ("Licenses"); (c) will perform the Services in a timely, professional and workmanlike manner according to industry best standards including all “Standards of Practice” as outlined by the State where the Services are provided; and (d) will comply with all applicable federal, state and local laws in the course of performing the Services. Furthermore, at Contractor’s own expense, Contractor will maintain current Licenses throughout the Term and will display an official copy of such Licenses at the Site, and will ensure all Contractor representatives do the same.
- Indemnification. Contractor shall indemnify, defend and hold harmless Exos and the Client, and their respective its officers, directors, employees, agents, stockholders, affiliates, successors and assigns from and against any and all claims, demands, losses, liabilities, damages and expenses (including reasonable attorney’s fees) arising out of or resulting from related to (a) the negligent acts, omissions, or willful misconduct of Contractor or any of Contractor’s Representatives and (b) any breach of this ICA by Contractor or any Contractor Representatives.
- Insurance / Credentials. Contractor agrees to carry, at its sole expense throughout the term of this Agreement and for two years thereafter, professional and general liability insurance coverage in minimum amounts of $2,000,000 per occurrence/$4,000,000 aggregate. Each policy will name Exos and the Client as an additional insured on a primary and noncontributory basis for ongoing and completed operations. The definition of “Covered Services” on the Professional Liability Policy shall include the Services rendered in the scope of this Agreement. If Contractor has employees, it will also carry Workers’ Compensation with the minimum statutory limits and $1,000,000 Each Accident, and Employer’s Liability with a $1,000,000 policy limit. Contractor hereby waives all rights of recovery against Exos and all Additional Insureds, and agrees to procure an endorsement waiving such rights, as permitted by state law. All insurance shall be procured from insurers permitted to do business in the State in which the project is taking place and having an A.M. Best Rating of at least “A-, Class VIII.” Contractor agrees to furnish Exos with a Certificate of Insurance evidencing the specified coverage within 10 days of the date of this Agreement and prior to Contractor commencing work. Contractor’s insurance carrier(s) will agree to provide at least 30 days' prior written notice to Exos in the event coverage is canceled or non-renewed. In such event, Contractor must replace the coverage without ensuring there is no lapse for any period.
- Non-Solicitation. Contractor may not openly solicit the Client’s members who are exercising, but may answer questions related to massage therapy services, if approached by members. During the Term and for six months thereafter, Contractor may not solicit the employees or representatives of Exos or Client for any purpose.
- Marketing, PR and Promotion. Contractor may not use the name, trademark, logo or other identifying insignia of Exos or the Client in any sales, marketing, press release, advertisement or other publication, and shall not make any public statement relating to Exos or Client without the prior written consent of Exos’ counsel. Exos will provide all marketing and related promotional materials, plans and communications as Exos deems appropriate with respect to the Services. Contractor agrees to not display Contractor’s name, business cards, trademark, logo or other identifying insignia on any documents, materials or communications designated for distribution, posting, or public viewing on the Client premises. For clarity, Contractor is permitted to include Contractor name, trademark and logo on Contractor-specific and proprietary massage therapy client “intake” paperwork.
- Confidentiality. In connection with providing the Services, Contractor may have access to and become acquainted with various trade secrets, inventions, processes, information and records owned or licensed by Exos or Client, including, without limitation, material nonpublic information, business and product processes, methods, customer lists, accounts and procedures (“Confidential Information”). Contractor shall not use, share or retain any Confidential Information, and will guard it against unauthorized disclosure, both during and after the Term, except such use during the Term as is required to provide the Services to Client. After the Term, or upon request by Exos, Contractor will destroy all Confidential Information in Contractor’s possession or control.
- Miscellaneous. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect. The delay or failure of either party to enforce any provision of this Agreement shall not constitute a waiver of its right to enforce that or any other provision. This Agreement is governed by the laws of the State of New York, without reference of its conflict of laws principle. Contractor agrees to the exclusive personal jurisdiction of the state and federal courts located in New York County, New York in connection with any disputes or controversy arising out of this Agreement. Notices under this Agreement must be sent to the address specified in the recitals or an Order Form, to legal-notices@teamexos.com in the case of email notice to Exos, or to any other address specified for a party via a notice. Notices must be sent via certified mail or overnight courier and will be deemed delivered upon receipt; provided notices may be sent via email, and such notices will be effective if and when acknowledged by reply email. The rights and obligations of Exos under this Agreement shall inure to the benefit of the successors and assigns of Exos and its Clients. Contractor may not assign this agreement and any purported assignment is void. This Agreement is the entire understanding of the parties, and merges all prior negotiations, agreements, and understandings, if any. No modification, release, discharge, or waiver of any provision of this Agreement will have any force or effect unless made in writing and signed by an officer of the parties. This Agreement may only be amended in a writing signed manually or via a third party e-sign platform.
[End of Agreement]
