This COACHING AGREEMENT (this “Agreement’) is entered into as of the later date set forth on the signature page hereof between the undersigned independent contractor of The Scoring Factory set forth on the signature page hereof (“Coach”), and THE SCORING FACTORY, LLC (“The Scoring Factory”).
The Scoring Factory and Coach desire to enter into an agreement under which Coach will provide certain coaching services to The Scoring Factory. Therefore, in consideration of the agreements contained herein and intending to be legally bound, the parties hereto hereby agree as follows:
1. Services/Clearances. During the term hereof, Coach shall provide coaching services (the “Services”) to The Scoring Factory and/or to The Scoring Factory’s clients. Coach shall complete and provide proof of completing a Pennsylvania Child Abuse History Clearance form (CY113), a FBI background check and any other mandatory clearances prior to providing Services to The Scoring Factory, or receiving compensation in any form in return for Services from The Scoring Factory. Coach shall be in possession of and maintain valid and current identification documents recognized by state and local law enforcement entities. If Coach provides transportation in a private car for anyone associated with The Scoring Factory, Coach shall be in possession of a current valid driver’s license, automobile registration documents and up-to-date insurance documents.
2. Control. Coach and The Scoring Factory shall agree as to Coach’s schedule to be worked. Coach shall control the details, manner and method by which Coach provides the Services. Coach shall assume responsibility for certain equipment to perform the Services. Coach shall pay for expenses/costs to perform the Services. Coach is permitted to provide services to other businesses unrelated to The Scoring Factory.
3. Taxes. Coach shall pay all applicable taxes and expenses including federal and state income taxes, self-employment taxes, social security taxes, unemployment compensation taxes and workers’ compensation fees. The Scoring Factory shall issue an IRS 1099 to Coach for Coach to report taxable income.
4. Fees. The Scoring Factory shall pay Coach mutually agreeable fees for the services to be performed by Coach hereunder.
5. Term/Termination. This Agreement shall be in effect until terminated in writing by either Coach or The Scoring Factory as set forth below. Coach may terminate this Agreement for any reason upon giving 10 days written notice to The Scoring Factory. Upon receipt of such written notice, The Scoring Factory may, at its option, accelerate the termination of Coach’s engagement. Coach’s failure to provide such 10 days’ notice shall constitute a material breach hereof. The Scoring Factory may terminate Coach’s engagement for any reason upon giving 10 days written notice to Coach. Coach’s engagement may be terminated immediately by The Scoring Factory if any of the following occur: (i) Coach’s failure or refusal to faithfully and diligently perform Coach’s duties; (ii) conduct by Coach which in the good faith determination of The Scoring Factory injures or threatens to injure The Scoring Factory’s business, reputation or interests; or (iii) Coach’s death or Coach’s physical or mental impairment which prevents Coach from fully performing Coach’s duties.
6. Confidential Information.
(a) The Scoring Factory Information. At all times during the term hereof and thereafter, Coach shall hold in strictest confidence, and shall not use, except for the benefit of The Scoring Factory, and shall not disclose to any person, firm, corporation or other entity without advance written authorization of The Scoring Factory’s President, any Confidential Information. Coach further agrees not to make copies of any Confidential Information without advance written authorization of The Scoring Factory’s President. “Confidential Information” means any The Scoring Factory proprietary information, technical data, trade secrets or know-how including, without limitation, research, plans, products, services, client/customer lists, client/customer information, all clients/customers, prices, costs, markets, software, developments, inventions, processes, technology, designs, marketing, finances, budgets and/or other information disclosed to Coach by The Scoring Factory in writing, orally or by drawings, or created by Coach during the term hereof, whether or not during working hours. The term Confidential Information includes, without limitation, information pertaining to all aspects of The Scoring Factory’s business which is either information not known by actual or potential competitors of The Scoring Factory or is proprietary information of The Scoring Factory.
(b) Former Employer Information. Coach represents that Coach’s performance of all terms hereof as an independent contractor of The Scoring Factory has not breached and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Coach in confidence or trust prior or subsequent to the commencement of Coach’s term of engagement with The Scoring Factory, and Coach shall not disclose to The Scoring Factory, or induce The Scoring Factory to use, any inventions, confidential or proprietary information or material belonging to any previous employer or any other party.
(c) Returning The Scoring Factory Documents. Coach agrees that, at the time of termination hereof for any reason, Coach shall deliver to The Scoring Factory (and shall not keep in Coach’s possession, recreate or deliver to anyone else) any and all Confidential Information, along with any copies of the same.
7. Restrictions. During the term hereof and for a period of two years after any termination hereof, Coach shall not, without the prior written consent of The Scoring Factory in advance, directly or indirectly:
(a) solicit, provide services to, be employed by or form any contract with any The Scoring Factory client to which Coach has provided Services hereunder, or interfere with, solicit, induce, hire or engage any employee or independent contractor of The Scoring Factory.
(b) engage in any activities which are in direct competition with The Scoring Factory during the term hereof without the express written permission of The Scoring Factory in advance.
(c) make any attempt to replicate The Scoring Factory’s program with any commercial entity that is an imitation of The Scoring Factory within a 50 mile radius of any facility currently (or within the preceding 18 months) engaged by The Scoring Factory in providing educational instruction, physical training and preparation related to Basketball.
(d) solicit any current or former coaches, players, parents and/or any other clients and/or personnel associated with The Scoring Factory for the purposes of commercial exploitation in the field of providing educational instruction, physical training and preparation related to Basketball.
(e) The provisions of this Section 7 shall survive any termination hereof.
8. Coach Work. All Coach Work shall be the sole property of The Scoring Factory and shall be “work made for hire” under and as defined in the Copyright Act of 1976, 17 U.S.C. §1 et seq. Coach shall promptly disclose to Scoring Factory all Coach Work and shall execute all such documents and instruments as The Scoring Factory may reasonably determine are necessary or desirable to give effect to the preceding sentence or to preserve, protect or enforce The Scoring Factory’s rights with respect to any Coach Work. “Coach Work” means all written and graphic materials, computer software, inventions, discoveries and improvements authored, prepared, conceived or made by Coach during the term hereof which are related to The Scoring Factory’s business. The provisions of this Section shall survive any termination hereof.
9. Relationship. The relationship between the parties is that of principal and independent contractor. Coach shall not be deemed to be and shall not represent that Coach is an employee, agent, or servant of The Scoring Factory nor shall Coach and Scoring Factory be construed to be engaged in any partnership, joint venture, alliance or other business relationship other than principal and independent contractor. Coach shall not participate in or to receive any employee benefits, including participation in any pension, profit sharing, stock options, group insurance, short or long-disability insurance, workers compensation or any other benefit plan or arrangement which The Scoring Factory has or may have for its employees. Coach shall not be entitled to vacation pay, holiday pay, severance pay or any other employment benefits. Coach shall meet (at its own expense) all local, state and federal requirements applicable to the work or services performed by Coach including, without limitation, all required licenses and permits. Because Coach is an independent contractor and not an employee of The Scoring Factory, The Scoring Factory shall not withhold or deduct from any payments made to Coach any amount for federal, state or local income taxes, FICA, unemployment compensation, workers compensation or any other amount. The withholding and timely payment of such amounts shall be entirely the responsibility of Coach.
(a) Amendments. This Agreement may be amended only by a writing signed by each of the parties hereto, and any such amendment shall be effective only to the extent specifically set forth in such writing.
(b) Governing Law. This Agreement shall be a contract under the laws of the Commonwealth of Pennsylvania and for all purposes shall be governed by and construed and enforced in accordance with the laws of such Commonwealth.
(c) Equitable Relief. The Scoring Factory could be irreparably damaged if any of the provisions of Sections 6, 7 or 8 hereof are breached by Coach. Accordingly, The Scoring Factory shall be entitled to an injunction(s) to prevent such breaches hereof by Coach and shall have the right to specifically enforce such terms and provisions against Coach in addition to any other remedy to which The Scoring Factory may be entitled hereunder, at law or in equity.
(d) Attorneys’ Fees. In the event of any alleged breach hereof, the prevailing party shall be entitled to reimbursement of all of its costs and expenses, including reasonable attorneys’ fees, incurred in connection with such breach, dispute, claim or litigation, including any appeal therefrom. For purposes hereof, the determination of which party is to be considered the prevailing party shall be decided by the court of competent jurisdiction that resolves such dispute, claim or litigation.
(e) Severability. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(f) Successors/Assigns. This Agreement and the rights to Coach’s services may be assigned by The Scoring Factory at any time without notice to Coach, but Coach cannot assign all or any portion hereof. Any successor to The Scoring Factory by merger or sale of all or substantially all of the The Scoring Factory’s assets is an intended third party beneficiary hereof with the same rights to enforce this Agreement as The Scoring Factory. This Agreement shall be binding upon and shall inure to the benefit of each of the parties and their respective heirs, successors and permitted assigns.
(g) Waivers. The due performance or observance by the parties of their respective obligations hereunder shall not be waived, and the rights and remedies of the parties hereunder shall not be affected, by any course of dealing or performance or by any delay or failure of any party in exercising any such right or remedy. The due performance or observance by a party of any of its obligations hereunder may be waived only by a writing signed by the party or parties against whom enforcement of such waiver is sought, and any such waiver shall be effective only to the extent specifically set forth in such writing.
(h) Notices. All notices, consents, requests, demands and other communications required or permitted hereunder: (i) shall be in writing; (ii) shall be sent by messenger, certified or registered United States mail, a reliable express delivery service or email (with a copy sent by one of the foregoing means), charges prepaid as applicable, to the appropriate address(es) set forth on the signature page hereof; and (iii) shall be deemed to have been given on the date of receipt by the addressee (or, if the date of receipt is not a business day, on the first business day after the date of receipt), as evidenced by (A) a receipt executed by the addressee, the records of the person delivering such communication or a notice to the effect that such addressee refused to claim or accept such communication, if sent by messenger, United States mail or express delivery service, or (B) a receipt generated by the sender’s email showing that such communication was sent to the appropriate address on a specified date, if sent by email. All such communications shall be sent to the addresses set forth on the signature page hereof, or to such other addresses as any party may inform the others by giving five business days’ prior notice.
(i) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties have executed this Agreement as of the latest date set forth below.