INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT dated as of April 29, 2002
("Agreement") is by and between Bally Total Fitness Corporation ("Bally") and
POP STARZ, INC. ("Contractor").
W I T N E S S E T H:
In consideration for the promises made by the parties to each other in this
Agreement, Bally and Contractor agree as follows:
1. It is Bally's desire to give children of its members and guests access to
the services provided by Contractor described on Exhibit A attached hereto
and made a part hereof ("Services") at the clubs listed on Exhibit A
("Club" or "Clubs") and Contractor desires to provide these Services, all
on the terms and conditions set forth in this Agreement.
2. Subject to the terms and conditions set out herein, the Contractor will
have limited access to the group exercise room (or other location selected
by Bally) in the Clubs solely for the purpose of providing the Services on
a direct fee basis. The parents of the Children receiving the Services will
pay Contractor directly for the Services provided. Bally will bear no
responsibility to Contractor, Contractor's customers, or Bally members for
the payment or collection of any fees or refunds from any Contractor's
customer or in connection with the Services. The Contractor will not be
entitled to any payments of any kind from Bally relating to the performance
of the Services. The Contactor expressly disclaims and disavows any
entitlement to such payments, including the payment of wages of any kind.
Except as set out specifically herein, nothing in this Agreement limits in
any way the freedom of the Contractor to enter into similar contracts with
other entities for the performance of the Services at locations other than
the Clubs or to perform the Services under other circumstances elsewhere.
Contractor agrees that, during the Term, Contractor will not provide hip
hop dance or group exercise classes to any other health club, gym, fitness
facility, or spa in Florida except for Y2 Fitness Club located at 000
Xxxxxxxxx 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx and the Top Production Level
Troupe which is a professional; level troupe of children, teens and adults
chosen through an audition and which performs at events for a fee and is
located in southern Florida. Bally agrees that, during the Term, Bally will
not offer funky hip hop dance classes for children ages 3 through 17 in
those Clubs where Contractor is then holding the Classes (as such term is
defined on Exhibit A).
3. Contractor agrees to maintain, at its expense, General Liability insurance,
including Completed Operations Liability insurance as will fully protect
Contractor, its officers, directors, agents and employees from claims,
including, but not limited to, claims for consequential damages, resulting
from the goods or services which are the subject of this Agreement. Such
policies shall be written on an occurrence form and with insurers carrying
a minimum Best rating of A. They shall evidence deductibles in amounts
Satisfactory to Bally and shall provide Combined Single Limits of at least
$1,000,000. Contractor agrees to provide umbrella coverage in minimum
limits of $2,000.000.Contractor will add Bally and any other party
designated by Bally as an additional insured on such policies and provide
Bally with a certificate of insurance (or, upon Bally's request, policies)
along with the applicable additional insured endorsement evidencing such
coverage, within ten (10) days after Contractor receives this Agreement. (A
Vendor's endorsement is not an acceptable substitute for the additional
insured endorsement.) Such policies must provide that coverage thereunder
shall not be terminated, materially changed, or renewal refused without at
least ten (10) days prior written notice to Bally. Contractor will also
provide Worker's Compensation coverage in statutory limits. Contractor
agrees that all Services shall be done by Contractor as an independent
contractor and that the persons doing such work shall not be considered
employees of Bally. In addition, Contractor agrees to maintain all other
insurance coverage which may be deemed necessary by Bally. The Contractor
is solely responsible for the harm caused to person or property as a result
of its actions or conduct.
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4. Bally agrees to give the Contractor reasonable, but limited, access to its
members art the Clubs for the purpose of allowing solicitation of the
members for the provision of the Services. Access to members will not
include telephone or mail solicitation of members at their homes or at
their places of work. The Contractor is specifically prohibited by this
Agreement from soliciting Bally members in these specific manners and in
all cases, no solicitation of Bally members shall be permitted outside of
the Club unless such solicitation is part of a larger solicitation not
directed specifically at Bally members. No solicitation of Club guests in
the Club shall be permitted at any time or in any manner. Bally agrees to
refer all inquiries about the Services to Xxxxxxxx Xxxxxx at Contractor's
business office.
Contractor agrees to provide, in advance to Bally, samples of all written
promotional or other materials that it wishes to post or distribute in
conjunction with its Services. All such materials shall clearly indicate
that the Services are the sole undertaking and responsibility of Contractor
and shall not imply or suggest any ownership, sponsorship, liability or
participation by Bally other than as provided herein. The posting,
publication or distribution of such materials must have Bally's prior
written approval, which Bally has no obligation to give. Contractor agrees
that it will not issue any press releases in any medium pertaining to
Contractor's operations at the Club, unless such press releases have been
preapproved by Bally in its sole discretion.
5. Contractor agrees to pay Bally a fee of $50 (fifty dollars) per each hour
of classes held in any of the Clubs in connection with the Services during
each month (collectively, "Monthly Fee"). Contractor shall pay the Monthly
Fee by check or money order (no cash) for a given month on or before the
fifth (5th) day of the immediately succeeding month. The Monthly Fee must
be sent to Bally c/o 000 Xxxx Xxxxxxx Xxxx., Xx. Xxxxxxxxxx, XX 00000,
Attention: Xxxxx Xxxxxx. Any partial hour of classes will be rounded up to
a full hour. Contractor's obligation to pay the Monthly Fee incurred for
the months of the Term of this Agreement shall survive termination or
expiration of this Agreement.
6. The parties to this Agreement acknowledge and agree that the Contractor is
any independent contractor and is not an employee of Bally. As an
independent contractor, the Contractor retains full independence in
exercising judgment as to the manner and method of its performance.
Nevertheless, at all times Contractor and the Services shall not interfere
with the operation of any Club, nor with any Club patrons or employees and
Contractor shall comply with all licensing, health and all other laws,
rules and regulations of any government entity and obtain all licensing for
the music used in its classes, as well as the Club rules and regulations
and those of the Clubs' landlords. Contractor shall provide the Services in
the location specified by Bally in each of the Clubs. Times for the
Services are as set out on Exhibit A. Contractor represents and warrants
that it has received all necessary licenses, permits, and registrations in
connection with the Services. Contractor is, and shall be, solely
responsible for reporting and paying all federal, state, and local taxes
and assessments on the fees collected from members for the Services,
including self-employment taxes, if applicable. Contractor hereby
indemnifies and holds Bally harmless from and against all liability for
taxes owed to federal, state or local taxing authorities relating to fees
received by Contractor under this Agreement.
7. Except as set out otherwise herein, the term of this Agreement shall begin
on the date I is signed and delivered by both parties and end 24 months
thereafter ("Term"). Notwithstanding the foregoing, the parties agree that
Bally may, in its sole discretion, reevaluate the financial terms of the
Agreement six (6) months after the beginning of the Term. In the event
Bally desires to change such financial terms, it will provide Contractor
with written notification of such changes within twenty (20) business days
thereafter. If Contractor agrees to such changed financial terms it need
not provide any response to Bally, Contractor will be subject to such
revised financial terms twenty (20) business days after such notice and the
Agreement will then be deemed automatically amended to incorporate such
revised terms. If Contractor does not agree to such changed financial
terms, it must provide Bally with written notice of such disagreement no
later than nineteen (19) business days after the notice from Bally, and the
Agreement will automatically terminate sixty (60) days after such notice of
disagreement from Contractor. In addition, if Contractor breaches any
provision of this Agreement and fails to cure such breach within ten (10)
business days after notice thereof from Bally, Bally may terminate this
Agreement upon at least ten (10) business days prior written notice to
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Contractor and Bally will also be entitled to all other available remedies,
in law or in equity. In addition, Bally may terminate the Agreement,
without cause, upon ninety (90) days prior written notice to Contractor.
8. Contractor shall not use any Bally names, tradenames, trademarks, service
marks, logos or other intellectual property of Bally except to use a Club
name when giving the location of the Services to be provided, in completing
licensing forms required by government entities in connection with the
Services or in advertising and promotional materials which have received
Bally's prior written approval. In addition, Contractor agrees that it will
not make any informational pr press releases, in any media, about the
Services, this Agreement, or any terms of this Agreement, without obtaining
Bally's prior written approval thereto.
9. Contractor hereby agrees to indemnify, defend and hold Bally and its
parent, subsidiaries, affiliates, employees, and agents, harmless against
any claim, damage, or liability including, without limitation, reasonable
attorney's fees and court costs and personal injury or property loss which
occurs or arises out of the Contractor's use of Bally facilities, the
provision of Services, of the Contractor's presence in the Clubs.
Contractor hereby releases Bally, its parent, subsidiaries, affiliates,
employees, and agents from any and all liability for Contractor's own
injury or loss of its personal property, except where same was caused by
the gross negligence of Bally. This provision shall survive the expiration
or other termination of this Agreement.
10. Notwithstanding anything to the contrary contained herein, the expiration
of the term of this Agreement shall not relieve Contractor from obligations
accruing prior to the expiration of the term.
11. This Agreement shall bind all inure to the benefit of the parties hereto,
their personal representatives, successors and assigns.
12. This document contains the entire agreement between the parties and
supersedes all prior or concurrent agreements between the parties if any,
written or oral, with respect to the subject matter hereof.
13. This Agreement may not be varied, modified or amended except by an
agreement in writing duly signed by the parties.
14. This Agreement shall be governed by and interpreted according to the laws
of the State of Florida with respect to contracts entered into therein and
to be performed therein. If litigation is necessary to enforce the terms of
this Agreement, the prevailing party shall be awarded reasonable attorney's
fees and all cost of suits.
15. All notices to be given hereunder shall be in writing and sent by
registered or certified mail, return receipt requested, postage prepaid, or
by express mail delivery service,
if to Bally at: Bally Total Fitness Corporation
000 Xxxx Xxxxxxx Xxxxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Area Director
with a copy to: Bally Total Fitness Corporation
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
and if to Contractor, at: Pop Starz, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X
Xxxx Xxxxx, XX 00000
Either party may, at any time, notify the other in writing of a substitute
address, and thereafter notices shall be directed thereto. Notice given as
aforesaid shall be sufficient and deemed given as of the date received at
the designated address.
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16. Contractor acknowledges that the name, reputation, and good will of Bally
shall constitute valuable and unique assets. Thus, Contractor represents
and warrants that neither it nor any of its employees or independent
contractors (a) have been convicted of, or granted immunity from
prosecution for, any crime relating to moral turpitude, or (b) have not
been charged or arrested for any misdemeanor or crimes involving minors.
17. If Contractor's business is a partnership or other business organization
the members of which are subject to personal liability or if Contractor's
business is two (2) or more individuals or entities, the liability in
connection with this Agreement of each such member, individual or entity
shall be deemed joint and several.
18. If the Clubs are leased or subleased by Bally, then this Agreement shall be
subject and subordinate to each and every term and condition of any such
lease and/or sublease of which Contractor has been notified by Bally.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date first written above.
BALLY TOTAL FITNESS CORPORATION
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx,
Its: Area Director
POP STARZ, INC.
By: /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, President
Its: President
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Exhibit A
Club Location and Description of Services
Contractor agrees to provide the following Services at the Clubs and times
listed in this Exhibit A.
Services: "Funky," "hip hop" dance instruction to children ages 3 through 17
("Classes"). Minimum Class size is five and maximum Class size is forty. Each
Class will last 60 minutes. Contractor must begin holding the Classes in at
least one of the Clubs beginning no later than thirty (30) days after the first
day of the Term. Contractor may also provide funky, hip hop dance instruction to
adults at the Clubs pursuant to the schedule set out in this Exhibit A and for
the same Monthly Fee as the Classes, but such instruction for adults can not
begin until after June 30, 2002, with the actual post June 30 start date to be
as mutually agreed upon by the parties. Adult Classes will be for sixty (60)
minutes with a minimum class size of five and maximum of forty.
Contractor will bring only the following equipment into the Clubs: N/A
For each class and remove this equipment promptly at the conclusion of each
class. Contractor's equipment cannot be stored at the Clubs.
Provided that Contractor is conducting Classes pursuant to the schedule set out
in this Exhibit A. Contractor will have the following one-time right of first
refusal to conduct Classes at the two Bally Clubs located at North Miami Beach
and West Miami, during the Term. In the event that Bally desires to hold hip hop
dance instruction for 3 through 17 year olds at either or both of these two
Clubs, Bally will contact Contractor and set out a proposed schedule for these
Classes. Contractor will then have five (5) business days to agree or decline,
in writing, to provide such Classes, pursuant to the schedule. If contractor
declines to provide such Classes, Bally can then hold such Classes itself or
have them provided by a third party.
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