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INDEPENDENT CONTRACTOR AGREEMENT

This Independent Contractor Agreement (the “contract”) is entered into by Hammer Fit, LLC, (“Hammer Fit”) located at 7831 Swanwood Drive, Indianapolis, Indiana 46278 and ____________________________________ (“Ambassador” “your” or “you”) with a residence address of _______________________________________________________________________.

  1. Nature of Services. Hammer Fit is engaged in providing fitness training, nutritional supplements and nutritional advice to individuals throughout the United States. Hammer Fit wishes to engage you as a fitness ambassador to provide fitness training and nutritional advice to clients as set out in Exhibit A (the “Services”). Your engagement is on a non-exclusive basis and Hammer Fit reserves the right to engage other ambassadors in your geographic vicinity. You have agreed to provide the Services during the term of this contract (see Section 5 (“Term”) below).
  2. Manner of Performing Services; No Conflicts.
    • You promise that the Services will be performed in a professional and workmanlike manner. You will provide your tools and equipment as well as handle all scheduling of the Services with Clients. However, you agree to utilize the fitness training and nutritional guidelines imposed by Hammer Fit, and acknowledge that Hammer Fit has the right to direct you as to the training and nutritional protocol to be undertaken with Clients.
    • You agree and represent that (i) you are not under any obligation to anyone else which might have the appearance of a conflict of interest, or which might impose any restriction on your rendering Services to Hammer Fit, and (ii) no such obligations will arise during the term of this contract.
  3. Covenant Not to Compete.
    • Ambassador hereby agrees that, for the Time Period, Ambassador will not in any manner, directly or indirectly; engage in any Competitive Activity.
    • “Competitive Activity” shall mean calling upon, contacting, servicing, soliciting, diverting, enticing, taking away, or interfering with any of Hammer Fit’s past (over the prior one year) or current Clients, businesses, patronage, members, customers, independent contractors, ambassadors or employees, including engaging such independent contractors, ambassadors or employees to perform work for Ambassador. “Competitive Activity” will include the offer to or acceptance of offers from past or current Clients for any work, whether as an independent contractor, employee or otherwise. Further, Competitive Activity shall also include either of the following (1) referring, directly or indirectly, Hammer Fit’ past or current Clients to other personal fitness trainers or (2) accepting referrals from Clients for work with contacts of a Client.
    • “Time Period” shall mean the duration of this Agreement and a period of one (1) year after the expiration or termination of this Agreement.
    • Ambassador and Hammer Fit agree and acknowledge that it is the intention of the parties that Hammer Fit be given the broadest protection allowed by law, and that the restrictions set forth in this section are reasonable in scope, essential to the protection of Hammer Fit’ legitimate business interests, and may be enforced independently and is severable from the remainder of this Agreement. The existence of any claim or cause of action by Ambassador against Hammer Fit shall not constitute a defense to the enforcement of this covenant. Hammer Fit and Ambassador agree that this covenant not to compete shall be divisible and diminishable as to time in the event any portion of it is held to be unreasonable, arbitrary, or against public policy by a court of competent jurisdiction and that a lesser time period which is determined to be reasonable, non-arbitrary or not against public policy shall be enforced as against Ambassador.
    • Ambassador agrees and acknowledges that in the event of a breach or threatened breach by Ambassador of this covenant, Hammer Fit shall be entitled to an injunction restraining Ambassador from such breach or threatened breach.
  4. Commissions and Expenses.
    • In return for the Services, Hammer Fit will pay you the commission specified on Exhibit A (the “Commissions”). Such payments are your sole compensation for the Services rendered under this contract, and cover all expenses that you may incur in connection with rendering the Services. Hammer Fit will reimburse extraordinary business expenses incurred by you only if they have been approved in advance (and in writing) by Hammer Fit.
    • You will invoice Hammer Fit for any properly reimbursable expenses incurred during that time frame, once per month. All necessary documentation to establish and detail the amounts of, and purpose for, each expense must be included with your invoice. Invoices are payable in thirty (30) days.
  5. Term; Termination.
    • This contract will begin on the date indicated on the signature page of the contract (the “Effective Date”). The contract will expire one (1) year after the Effective Date. Upon expiration of this contract, this contract will automatically renew for one (1) year periods. Either you or Hammer Fit may terminate this contract (a) at any time without cause upon thirty (30) days prior written notice, or (b) immediately if there is a breach any of the terms of this contract.
  6. No Employee Benefits; Payment of Taxes.
    • You are not eligible under any circumstances to participate in any of Hammer Fit’s employee benefit plans, fringe benefit programs, group insurance arrangements, or other similar programs. You promise that you will never claim that you are or were entitled to any such benefits.
    • Hammer Fit does not and will not provide workers’ compensation, disability insurance, Social Security coverage, unemployment compensation coverage, or any other statutory benefit or coverage to you. You agree and represent that you will comply at your own expense with all applicable provisions of workers’ compensation laws, Social Security law, federal, state, and local income tax laws, and all other applicable laws and regulations relating to terms and conditions required to be fulfilled by independent conctractors or employers. You further agree and represent that you will comply with all applicable laws, rules and regulations of governmental authorities in connection with the Services.
    • You acknowledge that Hammer Fit intends to deduct the Commissions as an ordinary and necessary business expense for income tax purposes. You agree and represent that, except as otherwise required in writing by the Internal Revenue Service, (i) you will treat the Commissions as ordinary income for income tax purposes, pay all taxes when due on the Commissions including, but not limited to, income taxes and self-employment taxes, and (ii) if you report the receipt of the Commissions as other than ordinary income or fail to pay these taxes, you will indemnify and hold Hammer Fit harmless from any and all taxes, penalties, interest, costs and expenses, including reasonable attorneys’ fees and accounting fees, incurred by Hammer Fit as a result.
  7. Confidential Information
    • As used in this contract, “Confidential Information” means all information relating to the business or affairs of Hammer Fit, including, but not limited to, information concerning its products, its fitness training protocol, services, proposed products and services, clients and consumers, suppliers, potential customers and suppliers, business plans, marketing plans, financial matters, creative designs, discoveries, improvements, copyrightable work, know-how, processes, tools, methodologies, designs, computer programs and routines, formulae, techniques, inventions, and all information regarding the business of any customer or supplier of Hammer Fit or any other information that Hammer Fit is required to keep confidential. Confidential Information also includes non-public personal information, like credit card numbers, address, social security number, or other identifying information. However, “Confidential Information” does not include information that:
      • is or becomes publicly available through no fault of your own,
      • you knew about (as evidenced by written records) prior to its disclosure to you by Hammer Fit, or
      • is required to be disclosed by law, provided that (A) you give Hammer Fit immediate notice of any such legal requirement, (B) you cooperate with all efforts by Hammer Fit to prohibit, narrow or protect such disclosure, and (C) you disclose only that portion of such information as is legally required to be disclosed.
    • In recognition of the special nature of your engagement under this contract, including your access to Confidential Information, you acknowledge that each and every component of the Confidential Information constitutes a protectible business interest and trade secret of Hammer Fit, has been developed by Hammer Fit, its clients or its suppliers at significant effort and expense, and is sufficiently secret to derive economic value from not being generally known to other persons. You agree that during and after the term of this contract, you: (i) will hold all Confidential Information in the strictest confidence, and take all reasonable precautions to prevent its inadvertent disclosure to any unauthorized person, and (ii) will not, directly or indirectly, whether individually, as a director, stockholder, owner, partner, member, employee or agent of any person or entity, or in any other capacity, utilize, or make known, disclose, furnish, or make available to any other person, any of the Confidential Information, other than in the proper performance of your Services under this contract. You understand that your obligations under this contract with respect to any particular Confidential Information will terminate only at such time (if any) as it becomes generally known to the public other than through a breach of your obligations under this contract.
    • You acknowledge that all records, documents, and other tangible items describing, summarizing, or containing any Confidential Information, whether or not they were prepared by you or came into your possession by virtue of your engagement by Hammer Fit, are and will remain the property of Hammer Fit. Upon termination of this contract, or at any other time at the request of Hammer Fit, you will immediately deliver to Hammer Fit all written or printed documents, tapes, drives, disks and other electronic media, and all other tangible property in your possession or control which contain, describe, or reflect any Confidential Information, including all originals and copies.
    • Pursuant to 18 USC § 1833(b), an individual may not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a trade secret: (i) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; and/or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his or her attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order.
  8. Independent Contractors. The parties agree that they are independent contractors. Nothing in this contract shall be deemed to establish a partnership, joint venture, employment, agency or other legal relationship other than that of independent contractors. You do not have the authority to enter into any contract or other obligation or commitment on behalf of Hammer Fit, or to make any representations on its behalf, except with the prior written consent of Hammer Fit.
  9. Indemnification. Ambassador (the “indemnifying party”) will indemnify and defend Hammer Fit, its officers, affiliates, employees and agents, against and hold them harmless from, without limitation, any and all liabilities, injury, death, penalties, losses, costs, damages, claims, expenses, attorneys’ fees, expenses of litigation, suits, judgments, liens and encumbrances brought, suffered or incurred by Hammer Fit or third parties (collectively, “Claims”) attributable to the respective acts or omissions of the indemnifying party arising out of or related to this contract.
  10. Limitation of Liability. IN NO EVENT WILL A PARTY OR ANY OF ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES, LOSS OF USE OF DATA OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations of liability set forth above will not apply to liabilities arising under the Sections governing “Confidential Information,” “Indemnification,” or to acts or omissions involving a party’s intentional misconduct or fraud.
  11. Disclaimer of Warranties. SERVICES, INCLUDING WITHOUT LIMITATION, ANY PRODUCTS, GOODS, SERVICES AND NUTRITIONAL ADVICE OR INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS, AND WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND. HAMMER FIT, LLC EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
  12. Notices. Any notice, instruction, or other communication required or permitted under this contract must be in writing. Such a notice will be deemed received (a) when delivered personally or by a nationally recognized overnight courier, or (b) three business days after being mailed by certified or registered U.S. mail (postage prepaid), return receipt requested, to the address set forth on the signature page of this contract (or any other address of which a party subsequently notifies the other party). Notices sent to Hammer Fit must be addressed to the attention of Mark Hummel.
  13. Governing Law; Forum. This contract is governed by, and will be construed according to, the substantive laws of the State of Indiana, without giving effect to any choice of law rules that may require the application of the laws of another jurisdiction. Any legal proceeding involving Hammer Fit and you and based upon, arising out of, or relating in any way to this contract must be brought exclusively in a state or Federal court in Marion County, Indiana and in no other forum. The parties irrevocably consent to the personal jurisdiction and venue of those courts, and agree never to argue that such personal jurisdiction or venue is improper, inappropriate, or inconvenient.
  14. Jury Waiver. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT IS IN ANY WAY RELATED TO THEIR RELATIONSHIP OR THIS CONTRACT, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT A JURY. The prevailing party in any such action or proceeding is entitled to reimbursement from the other party for all reasonable costs and fees (including reasonable attorneys’ fees) incurred by the prevailing party, provided that if Hammer Fit and you both prevail in part, the fees and costs will be allocated in a manner as the court deems equitable, based on the relative amounts and merits of their respective claims.
  15. Amendments and Waiver. This contract cannot be amended except in writing, and any such amendment must be signed by both parties. Additionally, no waiver is binding unless in writing and signed by the party against whom the waiver is sought. A party’s failure to insist upon the strict performance of any term or condition of this contract does not constitute a waiver of any other rights or remedies under this contract, nor of that party’s right to insist upon the strict performance of the same or of any other term of this contract.
  16. Assignment. This contract cannot be assigned by you, and you cannot delegate any of your rights or obligations under this contract, in whole or in part, without the prior written consent of Hammer Fit. Any assignment in violation of the preceding sentence is null and void. Hammer Fit may freely assign this contract to any affiliate of Hammer Fit or to any third party, including in connection with a merger, consolidation, reorganization, or sale of all or any substantial portion of Hammer Fit’ assets.
  17. Miscellaneous. This contract constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written and oral agreements, proposals, understandings and negotiations with respect to the subject matter hereof. Any provision of this contract that is declared by a court to be invalid or unenforceable will not affect the validity or enforceability of the remaining provisions of the contract. The language used in this contract is mutually chosen by the parties to express their intent, and no rule of strict construction will be used against either of them.
  18. Execution. This contract may be executed in counterparts, each of which shall be deemed an original and all of which (upon their exchange and delivery) together shall constitute one and the same instrument. Facsimile signatures are deemed equivalent to original signatures for the purposes of this contract. Signed copies of this contract may be exchanged via mail, fax, or e-mail.

HAMMER FIT, LLC

  • By:______________________________
  • Print Name: Mark Hummel
  • Title: Managing Member
  • Address: 7831 Swanwood Drive Indianapolis, IN 46278
     
  • Effective Date:____________________________

AMBASSADOR

  • ________________________________________
  • Print Name:___________________________
  • Address:______________________________
    _____________________________________

EXHIBIT A

Description of Services; Commission

  • Services. Ambassador will
    ___________________________________________________________________
    ___________________________________________________________________
    ___________________________________________________________________
    ___________________________________________________________________
    ___________________________________________________________________
    ___________________________________________________________________
  • Commission. Hammer Fit will pay Ambassador the following Commission:
    ___________________________________________________________________
    ___________________________________________________________________
    ___________________________________________________________________
    ___________________________________________________________________
    ___________________________________________________________________
    ___________________________________________________________________
  • Ambassador Initials: ______________
  • Hammer Fit Initials: ______________