The rights granted to Contractor in this agreement are non-exclusive. Mars may enter into other agreements with whomever, on whatever terms it desires for the performance of services similar to the services contained herein. The Services have been specially ordered and commissioned by Mars. To the extent the Services include materials subject to copyright, Contractor agrees that the Services are done as “work made for hire” as that term is defined under U.S. copyright law, and that as a result, Mars will own all copyrights in the Services. Contractor further agrees to: (a) perform all of the Contract Duties and Services in a good and workmanlike manner, and in accordance industry standards established by those engaged in a business similar to that of Contractor in performance of the Contract Duties and Services; (b) pay for all supplies, fuel, uniforms, equipment, machinery, repairs, transportation, material, labor, insurance premiums of any kind or description, sales taxes, salaries, federal and state employment taxes, any similar payroll taxes relating to employees of Contractor, and all other expenses whatsoever incurred in the performance of the Contract Duties and Services; (c) obtain and pay for all applicable permits and governmental fees, licenses and inspections necessary and incidental to the performance of the with the Contract Duties and Services and to otherwise comply with all governmental regulations pertaining to the performance of the Contract Duties and Services; and (d) keep the work site free from accumulation of waste materials or rubbish caused by Contractor’s operations. Contractor further agrees to follow the schedule set forth in this Agreement and per instructions obtained in the ServiceTitan application (the “App”). The content, style, form, and format of any work product performed by the Contractor shall be completely satisfactory to Mars and shall be consistent with Mars standards.
1.2 Relationship of the Parties. Contractor does hereby state, represent, and warrant that he/she/it is an independent contractor. In no event and/or under no circumstances shall Contractor, in the performance of his/her/its contractual obligation hereunder, be deemed or considered to be acting as a servant, agent or employee of Mars. All Contractual Duties and Services shall be performed only by Contractor and Contractor’s employees. Under no circumstances shall Contractor, or any of Contractor’s employees, look to Mars as his/her employer, or as a partner, agent, or principal. Neither Contractor, nor any of Contractor’s employees, shall be entitled to any benefits accorded to Mars’ employees, including without limitation worker’s compensation, disability insurance, vacation, or sick pay. Contractor shall be responsible for providing, at Contractor’s expense, and in Contractor’s name, unemployment, disability, worker’s compensation, and other insurance, as well as licenses and permits usual or necessary for conducting the Services and will provide proof of same to Mars prior to commencement of Agreement. Contractor further agrees to indemnify and hold harmless Mars and any of its respective affiliates, subsidiaries, employees, or parent corporation against any and all liability thereof.
1.3 Compensation and Reimbursement. Mars will pay Contractor compensation for Contractor’s performance of the Contract Duties and Services in the amounts and at the rates established as follows:
EACH DEPARTMENT MANAGER TO PROVIDE COMPENSATION RATES TO RACHEL TO CREATE A TEMPLATE FOR THAT DEPARTMENT
Completeness of work product shall be determined by Mars in its sole discretion, and Contractor agrees to make all revisions, additions, deletions, or alterations as requested by Mars. Mars has the right to hold payment back due to lack of completion details on any job performed by contractor. No other fees and/or expenses will be paid to Contractor unless such fees and/or expenses have been approved in advance by the appropriate Mars Department Manager in writing. Contractor shall be solely responsible for any and all taxes, Social Security contributions or payments, disability insurance, unemployment taxes, and other payroll type taxes applicable to such compensation. Contractor hereby indemnifies and holds Mars harmless from, any claims, losses, costs, fees, liabilities, damages, or injuries suffered by Mars arising out of Contractor’s failure with respect to its obligations in this Section 1.3. If Contractor requires invoices to be sent to Mars for payment, Contractor will have forty-eight (48) hours to send Mars the invoice for payment after the start date of the said job. Invoices must be sent to payable@marsservices.com with a copy to the appropriate Mars Department Manager.
1.4 Term of Agreement. Unless terminated sooner as provided herein, the contractor-owner relationship created by this Agreement shall commence on the effective date (the “Commencement Date”) and terminate twelve (12) months from said date. Thereafter, the Term shall continue on a month-to-month basis, unless terminated in writing by either Party by providing not less than thirty (30 days’ notice to the other Party. Mars may terminate this Agreement at any time by giving Contractor thirty (30) days’ prior written notice of its election to terminate, without penalty or liquidated damages.
1.5 Consideration. Mars specifically acknowledges that it would never hire Contractor, but for Contractor’s agreement to be bound by the terms and conditions of the covenant not to solicit Mars’ customers, and the terms concerning the non-disclosure use of confidential business information of Mars. Contractor agrees that it has been paid good and valuable consideration as listed in compensation in exchange for these covenants.
1.6 Enforcement, specific performance and injunctive relief. Contractor agrees in addition to all other remedies available at law to Mars, Mars shall have the right to specific performance and injunctive relief in the broadest sense necessary to affect the protection and rights of Mars under this agreement. Contractor also agrees that Contractor’s failure to perform all of the promises set forth herein will cause Mars to sustain loss and damage which will be difficult to ascertain and measure, and for which Mars will have not adequate remedy at law. It is therefore reasonable and necessary that Mars be accorded the equitable remedies of specific performance and injunctive relief, without and requirement for a bond.
1.7 Supplies and Equipment. Any and all supplies, equipment, uniforms and/or materials whatsoever that may be necessary to perform the Services and Contract Duties shall be furnished by the Contractor at no additional cost or charge to Mars. All such materials and supplies shall be of first quality only, and no additional charge shall be made by Contractor for this requirement.
1.8 Removal of Debris. Contractor at all times shall keep the work site free from accumulation of waste materials, equipment or rubbish caused by his/her/its Contract Duties and Services. Upon completion of the Contract Duties and Services, Contractor shall remove all its waste materials, equipment and rubbish from the work site and shall remove all his/her/its tools, construction equipment, machinery, and surplus materials.
1.9 Compliance with Laws and Regulations. Contractor agrees to comply with all federal, state and local laws, ordinances and/or rules and regulations in connection with the performance of his/her/its Contract Duties and Services under this Agreement.
1.10 Liens. Contractor will keep the work site premises free and clear from all liens and indemnify and defend Mars against any and all costs, expenses, losses, damage and claims resulting from the filing of any such lien. Mars may require as a condition to payment waivers or releases of liens or receipts in full and an affidavit that such claims have been fully satisfied.
1.11 Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless Mars and its respective directors, officers, agents, affiliates, and employees (the “Indemnitees”) from and against any and all losses, claims, demands, liabilities, causes of actions, suits, judgments, and expenses (including attorneys’ fees) (collectively the “loss”), for bodily injury, property damage, or personal or advertising injury attributed to, arising out of , incident to, or in connection with
Contractor’s performance of (or failure to perform) its Contract Duties and Services, including loss caused or alleged to be caused by joint or concurrent negligence, fault, or strict liability of one or more Indemnitees, but excluding loss caused by or alleged to be caused by the sole or gross negligence or intentional misconduct of such Indemnitees. THIS INDEMNITY PROVISION IN INTENDED TO INDEMNIFY INDEMNITEES AGAINST THE CONSEQUENCES OF THEIR OWN NEGLIGENCE OR FAULT AS PROVIDED ABOVE WHEN ONE OR MORE INDEMNITEES ARE, OR ARE ALLEGED TO BE, JOINTLY OR CONCURRENTLY LIABLE WITH CONTRACTOR. Contractor’s duty to defend under this Paragraph 1.11 shall continue until (a) all claims for which a duty to defend arises have been finally resolved, or (b) (if joint or concurrent fault has been alleged) it has been determined by final adjudication that the loss was caused solely by Indemnitees’ sole or gross negligence or intentional misconduct. Contractor’s obligations under this Paragraph 1.11 shall survive termination or expiration of this Agreement.
1.12 Insurance. At all times while performing the Contract Duties and Services, Contractor shall maintain, at its sole cost and expense workers compensation insurance, commercial general liability insurance and commercial auto insurance in the amounts indicated in Exhibit A from insurance companies and in a form reasonably satisfactory to Mars.
.
- Protection of Company’s Confidential Information.
2.1 Confidential Information. Following the execution of this Agreement and during the existence of this Agreement, Mars shall disclose to contractor certain valuable, confidential, proprietary information belonging to Mars to enable contractor to perform contractors duties and responsibilities hereunder (“Confidential Company Information”) Such Confidential Company Information of Mars includes, but is not limited to: data compilations, pricing, forms procedures, processes, mailing lists, customer lists, databases, sales cost of goods, margins, name of suppliers and customers information contained in any customer profile, customer files, customer billing arrangements, customer contact information, customer floor plans, customer preferences, training, techniques, and materials marketing and management plans, business plans, and forecasts, sales methods, trade secrets, innovations, potential customers lists, strategies, and forecasts, Mars financing information, and financing arrangements between Mars and its vendors and customers. Contractor agrees that at all times during or subsequent to the performance of the Services, Contractor will keep confidential and not divulge, communicate, or use Confidential Company Information, except for Contractor’s own use during the Term of this Agreement to the extent necessary to perform the Services. Contractor further agrees not to cause the transmission, removal, or transport of tangible embodiments of, or electronic files containing, Confidential Company Information from Company’s principal place of business, without prior written approval of Company.
2.2 Non-Disclosure or use of confidential business information. Contractor agrees to hold confidential and agrees not to during or at any time after the termination of this agreement, directly or indirectly disclose, to publish or use for the benefit of a third parties or for the benefit of Contractor, except as required in the course of Contractor’s agreement with Mars any of Mars’ Confidential Company Information. Contractor further covenants and agrees not to undertake any activity which would require Contractor to reveal to third parties or otherwise use such Confidential Company Information or other information which might be derived from such Confidential Company Information. Contractor agrees that any Confidential Company Information shall be and remain sole and exclusive property of Mars regardless of whether or not Contractor has any hand in the development or origination of the Confidential Company Information.
2.3 Duties and Responsibilities. Contractor shall use reasonable, good faith efforts to sell and perform the Services for the Mars’ customers assigned to Contractor and manage its employees and third-party contractors to sell and perform Services for the Mars’ customers assigned to them. Mars shall have the right to control the details of the contractor’s work. All forms, reports and other documents or materials may be received by Contactor shall be promptly delivered to Mars and any money shall be made to Mars. Contractor shall not, without prior written approval of the President of Mars, make any representations or commitments that are binding upon Mars and shall not modify Mars’ rates outside of the listed rates on the most current price list for the specific region. Mars shall have the sole and exclusive right to accept or reject any sale for any reason it deems appropriate.
2.4 Work Order Acceptance and Arrival. Contractor shall only perform Services according to the instructions received in the App (the “Work Order”). The Work Order will contain a priority level and Contractor must choose to accept or decline the Work Order within the timeframe specified for the applicable priority level. If Contractor does not accept the Work Order within the applicable timeframe for the Work Order priority level, then Contractor will be deemed to have declined such Work Order. If Contractor accepts a Work Order, then Contractor must arrive on site at the time and date specified in the Work Order. If Contractor cannot arrive on site at the time and date specified in the Work Order, Contractor must decline the Work Order. In such event, Contractor may request a rescheduled time and date from Mars, subject to approval by the appropriate Mars Department Manager. Mars reserves the right to modify or cancel any rescheduled time and date. No Work Orders may be rescheduled within six (6) hours of the scheduled time of performance without Mars prior written consent.
2.5 Not to Exceed Approval Process. If, in order to complete the Services as described in the applicable Work Order, Contractor is required to perform Services which would result in costs in excess of the not to exceed (“NTE”) amount described on the applicable Work Order (“Additional Work”), then Contractor must document the Additional Work needed, including pictures, and do the following:
A. If the Additional Work can be performed while Contractor is on site, then Contractor must call the Department Manager to obtain approval to proceed with such Additional Work. Contractor should be prepared to give a detailed quote, including time and materials.
B. If the Additional Work cannot be completed while Contractor is on site for the applicable Work Order, then Contractor must upload an estimate and photographs of the Additional Work into the App within seventy-two (72) hours.
2.6 No inconsistent obligations. Contractor represents and warrants that it has not previously assumed any obligations inconsistent with this Agreement and that there are no limitations or restrictions on the ability of Contractor to perform any of the obligations in this Agreement. Contractor represents and warrants that it will not hire any Mars’ employee or any former employee of Mars that worked for Mars within twelve (12) months of the effective date of the Agreement as an employee or third-party contractor to perform services under this Agreement. Contractor represents that it, nor any of its employees or third-party contractors is bound by a non-competition agreement that would prevent contactor from working for Mars.
2.7 Non-Solicitation of Mars’ Customers. Contractor agrees that in will not directly or indirectly, or in conjunction with or on behalf of any individual or entity, solicit, divert, take away or attempt to take away from Mars’ any customer, potential customer, or account that Contractor performed work for or had solicitated as of the date of termination of this Agreement.
2.8 Termination of Agreement. In the event this agreement is terminated for any reason, the following terms will remain in effect: Indemnification, Confidential Business Information, Non-Disclosure or Use of Confidential Business Information Records and Property of Mars, Non-Solicitation of Mars’ Customers.
2.9 Assignment. Contractor hereby assigns and agrees to assign to Mars, without royalty or any other consideration except as expressly set forth herein, all worldwide right, title and interest Contractor may have or acquire in and to (i) all Materials; (ii) all Innovations (iii) all worldwide patents, patent applications, copyrights, mask work rights, trade secrets rights and other intellectual property rights in any Innovations; and (iv) any and all “moral rights” or right of “droit moral” (collectively “Moral Rights”), that Contractor may have in or with respect to any Innovations. To the extent any Moral Rights are not assignable, Contractor waives, disclaims and agrees that Contractor will not enforce such Moral Rights. Contractor agrees that such assignment shall extend to all languages and including the right to make translations of the Materials and Innovations. Additionally, Contractor agrees, at no charge to Mars, but at Mars’ sole expense, to sign and deliver to Mars (either during or subsequent to Contractor’s performance of the Services) such documents as Mars considers desirable to evidence the assignment of all rights of Contractor, if any, described above to Mars and Mars’ ownership of such rights and to do any lawful act and to sign and deliver to Mars any document necessary to apply for, register, prosecute or enforce any patent, copyright or other right or protection relating to any Innovations in any country of the world.
- Miscellaneous Provisions
3.1 Representations and Warranties. Contractor represents and warrants to Mars that (a) Contractor has full power and authority to enter into this Agreement including all rights necessary to make the foregoing assignments to Mars; that in performing under the Agreement; (b) Contractor will not violate the terms of any agreement with any third party; and (c) the Services and any work product thereof are the original work of Contractor, do not and will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party. Contractor shall defend, indemnify and hold Mars and its successors, assigns and licensees harmless from any and all claims, actions and proceedings, and the resulting losses, damages, costs and expenses (including reasonable attorneys’ fees) arising from any claim, action or proceeding based upon or in any way related to Contractor’s, or Contractor’s employees, breach or alleged breach of any representation, warranty or covenant in this Agreement, and/or from the acts or omissions of Contractor or Contractor’s employees. Contractor shall correct any defects in workmanship that occur within a period of ninety (90) days from the date of final completion of the Work, and any defects in Materials that occur within a period of one (1) year from the date of final completion of the Work; provided, however, if any longer warranty period is specified for any Materials or workmanship under any Specifications, the Agreement, a Work Order, or any manufacturer’s warranty, the longer warranty period shall govern. Mars shall notify Contractor in writing of any defects in workmanship or Materials. Contractor shall correct such defects in a manner acceptable to Mars within five (5) days from notification by Mars of any such defect.
3.2 Governing Law and Attorney’s Fees. Contractor agrees that in the event Mars is required to employ the services of attorneys to enforce any of Mars’ rights hereunder, Contractor shall pay all reasonable and necessary attorney’s fees and cost so incurred.
3.3 Non-Disparagement. During the term of this Agreement, any renewal term after this Agreement terminates, Contractor shall not make any disparaging or untruthful statements to third parties regarding Mars and/or and of its managers or employees.
3.4 Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings, inducements, or conditions, express or implied, written, between the parties.
3.5 Injunctive Relief. Contractor acknowledges and agrees that in the event of a breach or threatened breach of this Agreement by Contractor, Mars will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.
3.6 Contractor’s Remedy. Contractor’s remedy, if any, for any breach of this Agreement shall be solely in damages and Contractor shall look solely to Mars for recover of such damages. Contractor waives and relinquishes any right Contractor may otherwise have to obtain injunctive or equitable relief against any third party with respect to any dispute arising under this Agreement, including, without limitation, the attachment of a mechanic’s or materialman’s lien. Contractor shall look solely to Mars for any compensation which may be due to Contractor hereunder.
3.7 Agency. Contractor is not Mars’ agent or representative and has no authority to bind or commit Mars to any agreements or other obligations.
3.8 Amendment and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the party to be bound. The waiver by a party of any breach or default in performance shall not be deemed to constitute a waiver of any other or succeeding breach or default. The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions.
3.9 Time. Contactor agrees that time is of the essence in this Agreement.
3.10 Notices. Any notice, demand, or request with respect to this Agreement shall be in writing and shall be effective only if it is delivered by personal service, by air courier with receipt of delivery, or mailed, certified mail, return receipt requested, postage prepaid, to the address set forth above. Such communications shall be effective when they are received by the addressee; but if sent by certified mail in the manner set forth above, they shall be effective five (5) days after being deposited in the mail. Any party may change its address for such communications by giving written notice to the other party in conformity with this section.
3.11 Jurisdiction and Venue. This Agreement shall be governed by the laws of the state of Texas without regard to choice of law or conflicts of law principles. Venue for any litigation shall lie exclusively in Tarrant County, Texas. This Agreement shall be binding upon and inure to the benefit of the parties hereto. No waiver by Mars of any breach or a series of breaches of performance or of any of Mars’ or Contractors’ obligations pursuant to this Agreement will constitute a waiver of any provision of this Agreement. This Agreement constitutes the entire negotiations between the parties and supersedes and merges all prior and contemporaneous oral or written agreements, negotiations, or understandings of the parties regarding the subject matter of the Agreement. This Agreement may not be modified except by written agreement signed by both Contractor and Mars. No oral amendments to this Agreement shall be permitted under any circumstances.
Signatures to follow
Signed this __________ day of _____________________, 202_.
OWNER:
MARS _____________________, LLC
By: ______________________________
David Meyers, President
CONTRACTOR:
