Contractor Agreement

Independent Contractor Agreement

This Independent Contractor Agreement (“Agreement”) is made and entered into by and between Night Owl Nanny Care, a Colorado limited liability company (“NONC”), and Contractor, by and through its Principal, whose names and addresses are in the signature block of this Agreement.

1. Statement of Purpose of Agreement.
   NONC desires to provide and Contractor desires to obtain from NONC placement services for overnight newborn care, daytime doula services, birth doula, in-person sleep training, or remote online sleep training, whichever services are identified in Schedule A of this Agreement (the “Services”). The parties further recognize that NONC is uniquely positioned to provide Contractor with qualified candidate clients for placements and to manage the administrative aspects of placements and payments. To carry out these purposes, the parties agree to the terms of this Agreement.
2. Effective Date.
   This Agreement is effective when all parties have signed it. The date of this Agreement is the date it is signed by the last party to sign.
3. NONC Client.
   NONC Client means any person or entity who contacts NONC, submits an application to NONC, or who contracts with NONC to provide placement services for the care services that NONC offers.
4. Services.
   Contractor agrees to provide Principal to perform the Services as identified in Schedule A of this Agreement and such other services as the parties may agree to in writing. Contractor and Principal acknowledge and understand that, while Principal may hold certain government-granted licenses, registrations, or certifications, the Services to be performed are not intended to be services that requires such licenses, registrations, or certifications.
5. Payment.
   1. Rate.
      NONC will compensate Contractor for each fully hour of service performed by Principal for an NONC Client at the rate specified in Schedule A.
   2. Additional Compensation Specific to Night Nanny and Sleep Training Services.
      If a Client cancels a scheduled Night Nanny Service or Sleep Training Service with less than thirty days’ notice and without Contractor’s agreement, NONC will pay Contractor for up to five eight-hour nights of the canceled service, in accordance with the amounts NONC charges the Client, but payment by NONC to Contractor is not contingent on actual payment by the Client.
   3. Reimbursable Expenses.
      To the extent an NONC Client is responsible for reimbursement of expenses incurred in the provision of services, NONC will reimburse Contractor for those expenses. NONC is not otherwise responsible for Contractors expenses, see Paragraph 15.e below.
   4. Documentation of Work Performed and Reimbursable Expenses Incurred.
      NONC is not obligated to compensate Contractor under this Paragraph 4 unless and until Contractor submits to NONC a detailed and documented statement of work and reimbursable expenses, in a form as further directed by NONC. If Contractor does not submit such a statement weekly by 11:59 p.m. Mountain Time each Sunday, NONC may assess a $25 penalty to Contractor.
   5. All payments shall be paid weekly at such time or times as NONC determines.
   6. Contractor is entitled to compensation in accordance with this Agreement. Principal is not entitled to any compensation under this Agreement.
   7. Contractor and Principal are not entitled to and shall not bill any NONC Client for any services performed pursuant to this Agreement.
   8. Contractor is not entitled to compensation for Principal’s time spent in administrative meetings or other gatherings with NONC that do not constitute the provision of services to NONC’s Clients.
   9. Upon Termination of this Agreement, Contractor has no right to compensation other than for the Services already performed and expenses incurred pursuant to this Paragraph 5.
6. Term.
   The Term of this Agreement is month to month. This Agreement automatically renews each month in the absence of notice of termination under the terms of Paragraph 7 below.
7. Termination.
   1. Termination by Either Party.
      Either party may terminate this Agreement for any reason or no reason upon 30 days’ advance written notice to the other party. During the period following such notice, and until the termination date, Contractor and Principal shall continue to provide Services and perform all other obligations as NONC may direct.
   2. Immediate Termination.
      This Agreement terminates immediately upon the incapacity or death of Principal.
   3. Immediate Termination by NONC for Cause.
      NONC may terminate this Agreement immediately upon the occurrence of any of the following events:
   1. Revocation, cancellation, restriction or suspension of any of Principal’s governmental or nongovernmental licenses, registrations, or certifications, which, in the judgment of NONC, constitutes adverse action against the Principal for misconduct;
   2. Conviction (whether final or on appeal) of Principal, entry by Principal of a plea of guilty or nolo contendere, or entry by Principal into a deferred prosecution agreement for any crime involving moral turpitude, dishonesty, fraud, unethical professional conduct, controlled substances, sexual misconduct, or a felony;
   3. Failure or inability of Contractor or Principal to obtain or maintain professional liability insurance coverage pursuant to Paragraph 13 below (Insurance);
   4. Principal has a physical or mental disability that prevents Principal from performing the essential functions of the contracted Services, as determined by NONC based on its assessment of the circumstances, including but not limited to the following examples:
   5. Principal has unpredictable, unreliable, and erratic attendance; is a danger to self or others; is unable to provide a definitive return to work date after using a leave or leaves; is ineligible for leave or additional leave under applicable policies or laws, if any;
   6. Principal is found by NONC to have been dishonest, committed material acts of misconduct, or violated any law or regulation;
   7. Contractor or Principal’s breach of Paragraph 10 below (Nonsolicitation and Liquidated Damages);
   8. Contractor or Principal’s breach of Paragraph 14 below (Representations and Warranties).
   4. Termination by NONC For Cause After Notice.
      NONC may terminate this Agreement immediately if Contractor or Principal commits any breach of the Agreement that has not been cured to NONC’s reasonable satisfaction following 15 days’ written notice, or that constitutes a breach of a type that Contractor or Principal has already committed at least twice before, whether or not cured. If such breach cannot be remedied within a 15-day period, upon written agreement of NONC, Contractor may have such additional time reasonably necessary to cure the breach and so long as it shall have already commenced and shall thereafter proceed diligently to remedy the breach.
   5. Notice of Triggering Event.
      Contractor or Principal shall notify NONC in writing no later than two business days following any event that triggers NONC’s right to terminate under this Paragraph 7.
8. Confidentiality and Nondisclosure.
   1. Proprietary Information.
      Contractor and Principal acknowledge that in the course of performing services under this Agreement, they will come into possession of information relating to NONC’s business, business plans, systems, business strategies, financial data, trade secrets, client information, and other proprietary information of a material nature which is confidential to NONC. Contractor and Principal agree to keep such information confidential and not to disclose the same to any other person, firm or entity without prior written consent from NONC.
   2. Confidential Information.
      Contractor and Principal acknowledge that they will gain access to information that Clients consider confidential, such as information about medical care and personal needs of an NONC Client’s child. Contractor and Principal agree to hold that information in confidence and will not, except as otherwise necessary in their judgment to protect the health and safety of individuals for whom services are being provided, disclose that information to third parties or use that information for any purpose other than those reasonably contemplated in the context of the services provided.
   3. Confidential Agreement.
      The terms of this Agreement are confidential, and Contractor and Principal shall not divulge any terms of this Agreement to any third parties, except as may otherwise be required by law or as needed to obtain professional tax and legal advice. If a third party invokes legal process to compel disclosure of any part of this Agreement, prior to making the disclosure, Contractor and Principal shall give NONC notice and reasonable opportunity to object to the disclosure.
   4. Return of Information.
      Within 48 hours of Termination of this Agreement or a written request by NONC, Contractor shall return originals of and destroy all copies of NONC proprietary information, confidential information, and works made for hire, and shall certify in writing to NONC that all such information, whether stored digitally or on
      paper, has been returned or destroyed.
9. Works Made for Hire.
   Contractor and Principal assign to NONC all of their right, title, and interest in any idea or concept (whether or not patentable or protectable by copyright) conceived or developed in whole or in part or in which they may have aided in its development, while working for NONC, including, without limitation, any Proprietary Information. If any such idea or concept is deemed in any way to fall within the definition of “work made for hire,” as that term is defined in 17 U.S.C. § 101, such works will be considered “works made for hire,” the copyright of which will be owned solely, completely, and exclusively by NONC. If any of such concepts or ideas are considered to be works not included in the categories of works covered by the “work made for hire” definition, such work will be owned, assigned, or transferred completely and exclusively to NONC. Contractor and Principal agree to sign, acknowledge, seal, and deliver any instruments or documents and to do all other things reasonably requested by the NONC (both during and after the term of this Agreement) to completely vest in NONC all ownership rights in such ideas and concepts transferred by them to NONC pursuant to this Agreement. They further agrees to disclose immediately to the NONC all Proprietary Information conceived or developed in whole or in part by them during the term of this Agreement.
10. Nonsolicitation and Liquidated Damages.
    The terms of this Paragraph are limited to NONC Clients who NONC has introduced to Contractor or Principal, regardless of whether Principal provided services to such Clients. During the term of this Agreement and for a period of three years after Termination, (a) neither Contractor nor Principal shall, directly or indirectly, solicit or agree to work directly for any such NONC Client; (b) neither Contractor nor Principal shall refer any such NONC Client to a competitive third-party service provider; (c) neither Contractor nor Principal shall refer a competitive third-party service provider to offer services to any such NONC Client; and (d) neither Contractor nor Principal shall make any private agreement or engage in any action that is inconsistent with this Agreement, has the effect of avoiding any obligation under this Agreement, or that enables any other person to avoid payment to NONC of the application fee or the fees for NONC services it facilitates by finding and administering placements of qualified service providers. If Contractor or Principal breaches this provision, both shall be jointly and severally liable to pay NONC liquidated damages of $10,000 per breach. They agree that this amount of liquidated damages is a reasonable estimate of presumed actual damages to NONC and that it would otherwise be difficult to determine NONC’s actual damages resulting from the breach. Notwithstanding the limitations in Paragraphs 16.c and 16.d below, NONC may apply to any court of competent jurisdiction for injunctive relief to prevent a threatened breach or to stop a breach of this Paragraph. The remedies available to NONC under this Paragraph are not exclusive, and NONC retains all other legal and equitable remedies for any breach or threatened breach of this Agreement.
11. Indemnification.
    For the purpose of this Paragraph 11, reference to NONC includes its officers, directors, members, agents, employees, contractors, successors, assigns, insurance carrier(s), representatives, and anyone else acting on its behalf. Contractor and Principal agree to defend and indemnify NONC (i) against and for any claims that a third party brings against NONC for injury, damage, death, or other loss arising out of or related to any act, error, or omission by Contractor or Principal; and (ii) for any injury, damage, or other loss to NONC arising out of or related to Contractor’s or Principal’s breach or alleged breach of any obligations, representations, or warranties, under this Agreement. This agreement to defend and indemnify includes an agreement to pay any liabilities, attorney fees, expenses or any other losses NONC incurs defending such claims. If Contractor or Principal is obligated to defend under this Paragraph 11, NONC retains the right to select counsel and control the defense.

Limit of Liability.
In no event shall NONC’s aggregate liability to Contractor or Principal arising out of or related to this Agreement, whether for breach of contract, tort, or other claim, exceed the amount of any unpaid services or unreimbursed expenses submitted and documented in compliance with Paragraph 5 above.

12. Insurance.
    1. Coverage.
       Contractor shall, at its own expense, obtain and maintain and/or arrange for professional liability insurance from companies acceptable to NONC. The insurance shall cover Contractor, Principal, and NONC for all acts or omissions occurring during the term of this Agreement. Insurance coverage shall be a minimum of $500,000 per occurrence and $1,000,000 in the aggregate, annually, or such other amounts that NONC may reasonably require. All such policies shall waive any right of contribution from insurance held or owned by NONC.
    2. Prior acts coverage.
       Upon Termination of this Agreement, if Contractor’s professional liability insurance is a claims-made policy, Contractor shall obtain and maintain “tail” or equivalent prior acts insurance coverage, if available, with the same minimum limits and of a duration lasting at least 24 months. If Principal fails to purchase such coverage, NONC may purchase such coverage on behalf of Contractor and obtain reimbursement from Contractor, including by withholding from any amounts due Contractor the amount necessary to cover the cost of such coverage and through any other remedy at law. Contractor hereby appoints NONC as its agent with full power to act for Contractor with respect to purchasing such coverage, at the Contractor’s expense or otherwise.
    3. Certificates.
       At NONC’s request, Contractor shall provide NONC with a certificate of insurance demonstrating that Contractor has the requisite coverage, and Contractor shall provide NONCY with an updated certificate of insurance when changes occur in the insurance coverage, and at any other time that NONC may require. The insurance policy shall require the insurer to give NONC at least 15 days’ prior written notice if the insurance is to be materially modified or canceled.
    4. Notification.
       Upon receipt by Contractor or Principal, Contractor or Principal shall deliver promptly to NONC a copy of any notice of claim for professional liability or of a complaint made to a governmental or nongovernmental licensing, registering, or certifying authority involving Principal. Contractor shall deliver promptly to NONC any adverse change or modification to the terms and conditions of Contractor’s insurance coverage.
13. Representations and Warranties.
    1. Principal Not in Breach of Restrictive Covenants.
       Contractor and Principal represent and warrant that, as of the Effective Date of this Agreement, Principal is not subject to or bound by any non-competition or other restrictive covenant that would prevent Principal from entering into this Agreement or that would interfere with Principal's performance of services on behalf of Company under this Agreement.
    2. Facts Relied Upon.
       Contractor, Principal, and NONC mutually represent and warrant that all material facts provided to and relied upon by the parties to enter into this Agreement are complete, correct, true and not misleading, and the parties will keep one another informed of any change in circumstances which would render any of such facts untrue or misleading. Contractor and Principal understand and agree that NONC is relying on their representations as to Principal’s qualifications, experience, certification, training, and immunization status.
14. Independent Contractor Status.
    1. Not an Employee and Not Economically Dependent on NONC.
       Contractor is an independent contractor and Principal is an employee of Contractor. Principal is not an employee, partner, or agent of NONC. Contractor maintains its own offices and will be responsible for and will have full control over developing its own means, methods, and quality standards for the provision of Services in compliance with this Agreement. NONC does not oversee the actual work performed or instruct how it will be performed. However, NONC shall have the right to audit, review and inspect the actions of Contractor and Principal to the extent necessary to assure compliance with this Agreement and to the extent NONC exercises control pursuant to the requirements of any state or federal statute or regulation. Contractor and Principal acknowledge that Principal is not economically dependent upon NONC. Contractor states that it actively seeks to and contracts to provide other business services to others in addition to NONC. Contractor and Principal will not make any representation of an employment relationship between Principal and NONC and will not claim any benefits provided by NONC to its employees, if any.
    2. No Benefits or Employment Tax Withholdings.
       Contractor and Principal understand and agree that Contractor’s employees, including Principal, and subcontractors are not entitled to and will not receive any employee benefits from NONC, including but not limited to employer withholdings or liability for taxes, FICA, Medicare or Medicaid, medical or disability insurance, vacation or leave, or pension. Contractor and its employees, including Principal, and subcontractors are not entitled to and will not receive worker's compensation or unemployment insurance benefits unless coverage is provided by Contractor or some other entity. Contractor and Principal are obligated to and agree to pay any applicable federal, state, and local income tax on any monies paid pursuant to this Agreement. Contractor agrees to indemnify and hold NONC harmless against any claim, liability, loss or cost of any kind whatsoever arising from Contractor's failure to file all applicable tax forms or returns or pay any and all such taxes.
    3. No Right to Contract.
       Neither Contractor nor Principal has authority to contract on behalf of or legally bind NONC in any manner.
    4. Contractor Responsible for Own Training.
       Contractor and Principal are responsible for their own professional training and education. NONC will not provide or compensate for time spent obtaining professional training and education.
    5. Business Expenses.
       Contractor is responsible for its own business expenses incurred in performing its obligations under this Agreement, including without limitation any transportation costs, insurance, and fees for licenses and certificates. Contractor and Principal are not authorized to incur expenses chargeable to NONC without prior written approval from NONC.
    6. Taxes.
       NONC will issue Contractor a 1099 annually. Upon NONC’s request, Contractor shall provide proof of payment of employment or self-employment taxes for Principal.
    7. Indemnification.
       Contractor and Principal will defend and indemnify NONC and its directors, officers, members, employees, agents, affiliates, contractors, and customers from and against all allegations, claims, demands, suits, damages, liabilities, obligations, losses, settlements, judgments costs and expenses, (including without limitation attorney's fees and costs), which arise out of, relate to or result from any act, omission, false statement, misrepresentation, or breach of warranty by Contractor or Principal.

General Terms.

1. Amendments.
   This Agreement may not be amended except in a writing signed by both parties.
2. Choice of Law.
   This Agreement is governed by Colorado law without giving effect to those principles of conflict of laws that might otherwise require the application of the laws of another jurisdiction.
3. Jurisdiction and Venue.
   Except as set forth in Paragraph 10 above, any dispute not resolved by mediation or arbitration, such as to enforce an arbitration award, must be brought in Jefferson County, Colorado, or the U.S. District Court for the District of Colorado. Each party further consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding.
4. Dispute Resolution.
   If a Dispute (defined as a claim or controversy arising from this Agreement including, without limitation, contract, tort and other claims) arises between the parties, the parties agree to first attempt to resolve the dispute through good faith discussions. If friendly discussions fail to resolve the Dispute, then any party may require, by written demand, that the Dispute be submitted to nonbinding mediation to take place within 45 days of the written demand. The fees and expenses of mediation will be shared equally by the parties. If the parties do not resolve the dispute within 45 days of the written demand for mediation, then either party may require that the dispute be submitted to binding, non-appealable arbitration by sending a written demand for arbitration. The parties agree that, if they are unable to agree on a single arbitrator, then JAMS in Denver, Colorado will appoint a JAMS arbitrator in Denver, Colorado. The parties agree that all Disputes and all efforts and proceedings undertaken to resolve Disputes shall be confidential and shall not be disclosed to third parties except for the purpose of obtaining professional legal or tax advice or as required by law.
5. Assignment.
   This Agreement is not assignable by Contractor without written consent of NONC.
6. Severability.
   Any invalid or unenforceable provision will be deemed severed from this Agreement to the extent of its invalidity or unenforceability, and the remainder of this Agreement will remain in full force and effect.
7. Renegotiation of Terms Void Under Applicable Law or Regulatory Authority.
   If the performance of any term of this Agreement is in violation of applicable statutes, regulations, or rules, the parties will renegotiate that term. If the parties are unable to renegotiate that term within a reasonable time and that term is material to the performance of this Agreement, either party may terminate this Agreement upon thirty days’ written notice to the other party, unless earlier termination is required to comply with the applicable statute, regulation, or rule.
8. No Waiver.
   No waiver of any breach of any one or more of the terms of this Agreement by either party will be deemed to imply or constitute a waiver of a breach of the same term in the future, or a waiver of a breach of any other term of this Agreement. No provision of this Agreement may be waived except by a written waiver signed by the waiving party.
9. Third-Party Beneficiaries.
   The parties agree that this Agreement is for the parties’ mutual and exclusive benefit, that it does not confer any rights upon any person not a party to this Agreement, and that no individual or entity shall be construed or considered to be a third-party beneficiary of this Agreement, including any payor or other individual or entity.
10. Complete Agreement.
    This Agreement contains the entire understanding between the parties with respect to the subject matter of this Agreement, and supersedes completely all related negotiations, discussions, and prior agreements between the parties.
11. Further Assurances.
    The parties agree that they will execute, acknowledge, and deliver any further instruments or documents or take such actions as may be necessary to give force and effect to this Agreement and to carry out its intent.
12. Interpretation.
    Any ambiguity in this Agreement shall not be resolved against either party under any rules of construction.
13. Costs and Attorney Fees.
    Except as provided in Paragraph 16.d above, if NONC retains counsel to enforce or prevent the breach or any threatened breach of this Agreement or to seek any other remedy relating to this Agreement, then it is entitled to reimbursement from Contractor and Principal, jointly and severally, for all costs, expenses, and reasonable attorney fees so incurred.
14. Supremacy.
    In the event this Agreement conflicts with any other document between the parties for the transactions subject to this Agreement, the terms of this Agreement will control.
15. Survivability.
    The obligations in this Agreement, which by their nature would continue beyond Termination of this Agreement will survive Termination of this Agreement, even if the terms of this Agreement do not otherwise specify that they survive. This includes but is not limited to Paragraphs 8 through 16 of this Agreement.
16. Notice.
    Any notice, demand, or other communication (collectively, a “notice”) made pursuant to this Agreement must be in writing and either delivered by email, personally, sent by overnight delivery courier, or sent by certified or registered mail, postage prepaid, return receipt requested. Delivery is effective on the date emailed or personally delivered to the parties requiring notice, or the date confirmed delivered by the overnight delivery courier or by the mail service. Each party shall advise the other party immediately of any change in address or other contact information to which notice should be given. Notice to either party must be sent to the name and addresses or emails set forth with the parties signatures below.
17. Scan of Original Agreement.
    The original of this Agreement may be scanned and stored electronically, and any printout or output that accurately reproduces the original may be used for any purpose as if it were the original.
18. Counterparts.
    This Agreement may be signed in counterparts which, when taken together, will be deemed an original and constitute one and the same document. Facsimile transmission of signed signature pages is sufficient to bind the signing party.
19. Authorized Representative.
    By signing this Agreement, the person signing on behalf of Contractor represents that he or she is authorized to enter into this Agreement on behalf of Contractor.

Each party is signing this Agreement on the date stated opposite that party’s signature.

Principal is signing this Agreement on the date stated opposite Principal’s signature and by doing so affirms Principal’s understanding of and agreement to the terms and conditions of this Agreement.

Independent Contractor Agreement

Schedule A

Description of Services:

Payment Schedule:

Full hourly rate for any travel time incurred by Contractor beyond 30 minutes one-way from Contractor’s home.

*** All bonuses will be paid in January, regardless of the last date worked. No exceptions.