Guideline Template: Independent Contractor Agreement for Personal Trainers THE PRINCIPAL Insert Entity (Person or Company) Name AND THE INDEPENDENT CONTRACTOR Insert Entity (Person or Company) Name AGREEMENT FOR THE PROVISION OF PERSONAL TRAINING SERVICES INSTRUCTIONS This guideline template has been colour coded to help you prepare your own agreement. All writing in RED is instructional and should be deleted once you have completed the document All writing in BLUE should be replaced with your own information/details/requirements. IMPORTANT NOTES: This is a template agreement which has been prepared to assist you with the preparation of your own agreement for the provision of personal training services at your Anytime Fitness® centre. It is supplied to you as a general guide only and is not intended to address your specific needs. You should seek your own legal advice with respect to such needs and particularly with respect to the completion of the Schedule. The Information Owners (defined in clause 1.1) cannot guarantee that the material in the document is accurate or up to date and are not responsible for any errors or omissions. This agreement is the copyright of the Information Owners. You are only authorised to use this for the purposes of the personal training arm of your Anytime Fitness business. You have no authorisation to use this for any other purpose. YEAR Page | 1 THE PRINCIPAL Company) Name Insert Entity (Person or AND THE INDEPENDENT CONTRACTOR Insert Name of Employee AGREEMENT FOR THE PROVISION OF PERSONAL TRAINING SERVICES YEAR Page | 1 CONTENTS CONTENTS ....................................................................................................................................................................... 2 DATE: ............................................................................................................................................................................... 3 THE PARTIES .................................................................................................................................................................... 3 BACKGROUND ................................................................................................................................................................. 3 TERMS .............................................................................................................................................................................. 3 1. DEFINITIONS AND INTERPRETATION ________________________________________________________ 3 1.1 Definitions in this Agreement ....................................................................................................................... 3 1.2 Interpretation ............................................................................................................................................... 5 2. TERM _________________________________________________________________________________ 5 3. PERSONAL TRAINING SERVICES ____________________________________________________________ 5 4. FEES AND EXPENSES _____________________________________________________________________ 6 5. CONFIDENTIALITY, PRIVACY AND SURVEILLANCE ______________________________________________ 7 5.1 Confidentiality .............................................................................................................................................. 7 5.2 Privacy .......................................................................................................................................................... 7 5.3 Surveillance .................................................................................................................................................. 7 6. INTELLECTUAL PROPERTY _________________________________________________________________ 7 6.1 Acknowledgement ........................................................................................................................................ 7 6.2 Consents ....................................................................................................................................................... 8 6.3 General ......................................................................................................................................................... 8 7. PERFORMANCE OF THE PERSONAL TRAINING SERVICES _________________________________________ 6 8. HEALTH AND SAFETY ____________________________________________________________________ 8 9. CONFLICTS OF INTEREST AND RESTRAINTS ___________________________________________________ 8 10. INDEMNITY ____________________________________________________________________________ 9 11. INSURANCES __________________________________________________________________________ 10 12. TERMINATION _________________________________________________________________________ 10 13. RELATIONSHIP ________________________________________________________________________ 10 14. NOTICES _____________________________________________________________________________ 11 15. GENERAL _____________________________________________________________________________ 11 15.1 Amendment ................................................................................................................................................ 11 15.2 Assignment ................................................................................................................................................. 11 15.3 Counterparts ............................................................................................................................................... 11 15.4 Entire Agreement ....................................................................................................................................... 11 15.5 Governing Law ............................................................................................................................................ 11 15.6 Set Off ......................................................................................................................................................... 11 15.7 Severance ................................................................................................................................................... 11 15.8 Waiver ........................................................................................................................................................ 11 16. YOUR ACKNOWLEDGEMENT _____________________________________________________________ 12 SIGNING PAGE ............................................................................................................................................................... 13 SCHEDULE ...................................................................................................................................................................... 14 Page | 2 AGREEMENT FOR THE PROVISION OF PERSONAL TRAINING SERVICES DATE: DATE INSERT THE PARTIES THE PRINCIPAL: THE CONTRACTOR: The PERSON OR PARTY SPECIFIED ON THE COVER PAGE AND IN ITEM 1 OF THE SCHEDULE AS THE PRINCIPAL (“we”, “us” “our”) AND THE PERSON SPECIFIED ON THE COVER PAGE AND IN ITEM 2 OF THE SCHEDULE AS THE CONTRACTOR (“you”, “your”) BACKGROUND A. B. C. We operate an Anytime Fitness® fitness club business in Australia under a franchise agreement with the Franchisor. We wish to engage you, and you have agreed, to provide the Personal Training Services under the terms of this Agreement. This Agreement revokes and replaces any prior written, verbal or implied agreement or arrangement (if any) between you and us relating to your supply of any services to us. TERMS 1. 1.1 DEFINITIONS AND INTERPRETATION Definitions in this Agreement In this Agreement (unless the context requires otherwise), the following definitions apply: Term Agreement Billing Period Club Commencement Date Confidential Information End Date Meaning this Agreement for the provision of Personal Training Services. The period set out in Item 10. the Anytime Fitness club or clubs set out in Item 9. the date set out in Item 3. confidential and proprietary information, method of operation and trade secret information belonging to one or more of the Information Owners relating to the Anytime Fitness business, methods, systems, intellectual property, strategies, programs, products, services, suppliers, franchisees, Members or prospective Members which is, or might reasonably be considered by the Relevant Information Owner to be confidential. the date set out in Item 4. Page | 3 Fitness Faktor Fees Franchisor Fitness Faktor Pty Ltd, ACN 164 453 150, of Ground Floor, 71 Longueville Road, who is a preferred supplier of the Franchisor and who has entered into an agreement with us with respect to the provision of certain personal training services. the fees set out in Item 7. Anytime Australia, ACN 131 035 491 of Ground Floor, 71 Longueville Road, Lane Cove, NSW 2066. GST a goods and services or similar value added tax. Incentive the incentive set out in Item 8. Indemnified Parties collectively includes Anytime Fitness LLC, of Minnesota USA, the Franchisor, Fitness Faktor and us. Information Owners collectively includes Anytime Fitness LLC, of Minnesota USA, the Franchisor, Fitness Faktor and us. Inventions Includes any inventions, discoveries or novel designs. Item an item of the Schedule. Key Performance Indicators measurable and objective indicators of performance (KPIs) reasonably agreed between you and us. Key Persons the person or persons set out in Item 5 or such other persons who are suitably qualified to perform the Personal Training Services and who we have approved to perform the Personal Training Services. Liability includes any liability, cost, claim, damage, loss or expense (including any legal costs on a full indemnity basis). Member an Anytime Fitness club member. Notice any notice, demand, consent or other communication given or made under this Agreement which must be in writing. Payment Terms the terms set out in Item 11. Personal Training Services the services set out in Item 6. Personal Information has the same meaning as that given to the term under the Privacy Act. Privacy Act the Privacy Act 1988 (Cth). Privacy Statement the Anytime Fitness privacy statement available at http://www.anytimefitness.com.au/privacy. Relevant Information the Information Owner who owns the specific Confidential Owner Information. Restraint Area the restraint area set out in Item 13. Page | 4 Restraint Period Schedule Special Conditions Specified Insurances Term Works 1.2 Interpretation In this Agreement: the restraint period set out in Item 14. the Schedule to this Contract which may be amended, updated or replaced from time to time by agreement between you and us. any special conditions of your engagement which (if applicable) are set out in Item 15. the insurances set out in Item 12. The period commencing on the Commencement Date and ending on the End Date. all works and other subject matter in which copyright exists which are created in the course of the your engagement under this Agreement. (a) headings are for ease of reference only and will not affect interpretation; (b) (c) if a word or phrase is defined, cognate words and phrases have corresponding definitions; (d) (e) (f) the singular includes the plural and vice versa; “$” and “dollars” refer to Australian dollars; (g) 2. references to this Agreement includes any attachments and schedules to it; “includes” or “including” means includes (without limitation) or including (without limitation); and “writing” includes any mode of representation or reproducing words in tangible and permanently visible form and includes email or facsimile transmission. TERM This Agreement commences on the Commencement Date and continues for the Term unless it is terminated earlier in accordance with this Agreement. 3. 3.1 3.2 PERSONAL TRAINING SERVICES We engage you to perform the Personal Training Services. The Personal Training Services must be performed: (a) in accordance with the terms of this Agreement or any reasonable direction from us; from Fitness Faktor or from the Franchisor; (b) at the Club; and (c) by the Key Person(s). Page | 5 3.3 3.4 4. 4.1 4.2 4.3 4.4 Each Key Person must be registered as a fitness professional with Fitness Australia Limited, the national health and fitness industry association of Australia. You may sub-‐contract the performance of a part of the Personal Training Services but only with our prior written consent (which we will not unreasonably withhold). You may not sub-‐contract all the Personal Training Services. FEES AND EXPENSES We will pay you the Fees in consideration for supplying the Personal Training Services. At the end of each Billing Period you will issue us with an invoice detailing the Fees payable on account of the Personal Training Services you supply during that Billing Period. We will pay each invoice within our Payment Terms provided the invoice is error free. Any invoice that contains an error must be corrected to our satisfaction and re-‐issued before we will pay it. We will also reimburse any expense you reasonably incur in performing the Personal Training Services subject to the following: (a) (b) (c) 4.5. you provide us with evidence that the expense has been incurred; you follow our reasonable and relevant procedures with respect to expense reimbursement; you obtain our approval before you incur any expense or the expense is one we would reasonably expect you to incur. If a GST is imposed on any supply under this Agreement, the amount payable for that supply will be increased by the amount of that GST subject to the issue of a GST tax invoice or any other things required by GST related laws. 5. PERFORMANCE OF THE PERSONAL TRAINING SERVICES 5.1 Throughout the Term, you will: (a) perform the Personal Training Services diligently, with all necessary skill and care and in accordance with proper professional standards; (b) perform the Personal Training Services expeditiously and in accordance with the dates and times as agreed between you and us; (c) faithfully carry out your obligations under this Agreement to the best of your ability; (d) observe all lawful requests made by any person authorised by us, by Fitness Faktor or by the Franchisor; and (e) ensure you follow our policies and procedures as notified to you from time to time. 5.2 5.3 You warrant that you have the facilities and expertise necessary to perform the Personal Training Services in the manner described in clause 5.1. In carrying out your obligations under this Agreement you agree to comply with all applicable laws including privacy laws, health and safety laws, anti-‐discrimination laws, employment laws, competition and consumer protection laws and tax laws. Page | 6 6. CONFIDENTIALITY, PRIVACY AND SURVEILLANCE 6.1 Confidentiality During your engagement you will be given access to Confidential Information. You will, both during your engagement and as for so long as the Confidential Information remains confidential after the termination or expiry of this Agreement: (a) not at any time, either directly or indirectly, disclose or communicate to any person any Confidential Information that may come to your knowledge during or in the course of your engagement, unless expressly authorised by us or required by law or a court order; (b) (c) (d) 6.2 6.3 use your best endeavours to prevent disclosure or publication of the Confidential Information if that disclosure or publication is not authorised by the Relevant Information Owner; not use or attempt to use Confidential Information for your own benefit or purposes; and not use or attempt to use the Confidential Information in any manner which may injure or cause loss or harm to the Information Owners. Privacy You will familiarise yourself, and comply, with the requirements of the Privacy Act, any applicable state laws regarding privacy, and our privacy policy, when dealing with Personal Information of Members, our franchisees and other persons. You acknowledge that, as a result of and during the course of your engagement, we may obtain Personal Information (including health, medical and other sensitive information) about you. You consent to us obtaining this Personal Information and further consent to us disclosing the information to other parties for the purposes of our business, and/or otherwise outlined in our Privacy Statement. Surveillance Computer use, including internet and email use, may be subject to monitoring through the use of software in accordance with our applicable policies. 7. INTELLECTUAL PROPERTY 7.1 Acknowledgement You acknowledge and agree that: (a) the Information Owners own all intellectual and industrial property rights in the Confidential Information and any modifications and enhancements to the Confidential Information; (b) the Information Owners own any Inventions and Works which are created by you during and in the course of your engagement; (c) the Information Owners own all Inventions and Works absolutely and without further payment by us to you and, to the extent necessary, you irrevocably assign to the Relevant Information Owner all your present and future rights, title and interests (including moral rights) in and to all Inventions and Works; and Page | 7 (d) 7.2 7.3 you will disclose to us or the Relevant Information Owner all the details of any Inventions or Works created by you during your engagement. Consents You consent to Works being changed, copied, edited, added to, taken from, adapted or translated in any manner or context by us or on our behalf for any purpose related to the Anytime Fitness business. General You must, both during and following your engagement: (a) do all such acts and things we may reasonably request to secure the Relevant Information Owner’s ownership and registration rights in the Inventions and Works and grant to the Information Owners the right to use your name to obtain any protection of the Inventions or Works; and (b) not engage in any conduct that may damage the intellectual or industrial property rights of the Information Owners. 8. 8.1 8.2 HEALTH AND SAFETY You will comply with your obligations under applicable health and safety laws. You will comply with all directions and instructions from us regarding health and safety and will also take all reasonable steps to ensure that, in the performance the Personal Training Services, you (a) take reasonable care for your health and safety; (b) (c) (d) take reasonable care that your acts and omissions do not adversely affect the health and safety of others; so far as is reasonably practicable, comply with all lawful instructions given requiring your compliance with health and safety laws; and co-‐operate with us and any reasonable policy we have with respect to health and safety matters. 9. CONFLICTS OF INTEREST AND RESTRAINTS 9.1 During the Term you must not do anything that will conflict with our legitimate business interests and/or that may impair your ability to make objective and fair decisions relating to your performance of the Personal Training Services, including that you must not: (a) (b) (c) provide services to any competitor of ours without our consent; have an outside association or interest that is incompatible and/or inconsistent with our legitimate business interests or which may influence or prejudice your performance of the Personal Training Services; take improper advantage of your relationship with us for the purposes of benefiting yourself or a competitor of ours; Page | 8 (d) (e) 9.2 9.3 interfere with, disrupt or attempt to disrupt, or procure or solicit anybody else to interfere with, disrupt or attempt to disrupt, the relationship (contractual or otherwise) between us and our Members or our prospective Members; induce, encourage or solicit any of our employees, contractors or agents to leave our employment or agency or to cease providing services to us; or (f) induce, encourage or solicit a Member to cease their Anytime Fitness membership. During the Term you must fully disclose: (a) any actual or perceived conflicts (whether direct or indirect) to us; (b) any business, personal or financial interest which may influence (or may appear to influence) your performance of the Personal Training Services; or (c) any gifts, offers of entertainment or benefits from third parties who are competitors of ours. After the expiry of the Term, you must not without our prior written consent (which consent will not be unreasonably refused) for a Restraint Period (directly or indirectly) do or engage in any of the following in the Restraint Area: (a) provide services to any competitor of ours without our consent; (b) induce, encourage or solicit any of our employees, contractors or agents to leave our, or their, employment or agency or to cease providing services to us; (c) interfere with, disrupt or attempt to disrupt, or procure or solicit anybody else to interfere with disrupt or attempt to disrupt the relationship (contractual or otherwise) between us and any of our Members or prospective Members; or (d) induce, encourage or solicit a Member to cease their Anytime Fitness membership. 9.4 You acknowledge that the requirements of this clause 9 are reasonable and necessary for the purposes of the protection of the Confidential Information and our legitimate business interests. 10. INDEMNITY 10.1 You indemnify all Indemnified Parties from and against any Liability they incur which arises from, or in connection with, any of the following: (a) your breach of this Agreement; (b) your negligent or wrongful performance of the Personal Training Services or other negligent or wrongful act; (c) (d) 10.2 your failure to perform the Personal Training Services; or your breach of any law. Your liability under clause 10.1 is reduced proportionately to the extent that the Liability is caused or contributed by the negligent or wrongful act or omission of an Indemnified Party. Page | 9 11. INSURANCES 11. 1 You will obtain and maintain (for as long as needed) all necessary insurances, including the Specified Insurances, to cover your obligations under this Agreement. 11.2 11.3 12. 12.1 12.2 You will give us evidence of the Specified Insurances whenever we ask you to do this. If you do not obtain and maintain or give us evidence of the Specified Insurances when we ask you to do this, we may (in addition to anything else we can do under this Agreement) obtain the Specified Insurances and/or evidence of it ourselves and charge you for all premiums or costs we incur. TERMINATION This Agreement may be terminated at any time with our mutual consent. Either Party may terminate this Agreement immediately on the provision of written Notice where: (a) (b) the other Party breaches a term of this Agreement that is not able to be remedied; or (c) the other Party convicts a criminal offence; or (d) the other Party commits an act involving fraud, deceit or dishonesty. the other Party becomes bankrupt or insolvent; or 12.3 12.4 12.5 Either Party may terminate this Agreement if the other Party breaches a term of this Agreement which can be remedied but is not remedied within seven (7) days of receiving a Notice requiring that it be remedied. This Agreement may be terminated for any reason by either Party on the provision of at least two (2) weeks written Notice. Termination of this Agreement for whatever reason shall be without prejudice to any rights or obligations that have accrued or are owing before the termination. 13. RELATIONSHIP 13.1 You acknowledge and agree that: (a) (b) (c) 13.2 in providing the Personal Training Services, you act as an independent contractor and not as an employee, partner or agent of ours; you will be responsible for payment of income tax payable on the Fees and all other amounts paid to you or any person engaged by you to perform the Personal Training Services under this Agreement and will indemnify us against any liability for deduction of such tax; we are not required to make any contributions to any superannuation fund in respect of your supply of the Personal Training Services under this Agreement. You also acknowledge that you have no authority to act for or to bind us in any manner whatsoever other than as expressly contemplated by this Agreement. Page | 10 14. NOTICES 14.1 14.2 Any Notice or other communication under this Agreement must be in writing and in English. Notices may be served in any of the following ways: (a) by giving it to the person personally; (b) by leaving it at the person’s address; or (c) by faxing it or emailing it to the person. 15. GENERAL 15.1 Amendment This Agreement may only be amended in writing signed by you and us. 15.2 Assignment Neither you nor we may assign our respective rights or obligations under this Agreement without the prior written consent of the other Party. 15.3 Counterparts This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one and the same instrument. 15.4 Entire Agreement This Agreement constitutes the entire agreement between you and us with respect to its subject matter and supersedes all prior oral or written representations and agreements. 15.5 Governing Law 15.6 This Agreement is governed by the laws of state or territory in which the Club is located and you and we submit to the jurisdiction of the courts of this state or territory and any courts which may hear appeals from those courts. Set Off If you owe us any money or owe us more than you are entitled to be paid by us, we may withhold the amount of the debt or the overpayment from amounts otherwise payable to you. 15.7 Severance If any provision or part provision of this Agreement is invalid or unenforceable, such provision shall be deemed deleted but only to the extent necessary and the remaining provisions of this Agreement shall remain in full force and effect. 15.8 Waiver A waiver by either you or us of any provision of this Agreement does not constitute a waiver of any succeeding breach of the same or any other provision. Page | 11 16. YOUR ACKNOWLEDGEMENT You acknowledge that you: (a) have been advised of your right to take independent advice on the terms of this Agreement; (b) have been given a reasonable opportunity to take that advice; (c) have read the terms of engagement set out in this Agreement and understand these terms and their implications; and (d) agree to be bound by these terms of engagement as an independent contractor. NEXT PAGE IS THE SIGNING PAGE -‐ Page | 12 SIGNING PAGE Signed on behalf of the Principal in the ) presence of: ) ) ......................................................... Witness signature ......................................................... Print name of witness ......................................................... Date Signed by the Independent Contractor in the presence of: ............................................................ Signature ............................................................ Print name ) ) ) ......................................................... Witness signature ......................................................... Print name of witness ........................................................ Date ............................................................ Signature ............................................................ Print name Page | 13 SCHEDULE ITEM NO 1 ITEM DESCRIPTION DETAILS Principal 2 Independent Contractor Commencement Date End Date Key Persons Personal Training Services 3 4 5 6 7 Fees 8 Incentive 9 Club Billing Period Payment Terms Specified Insurances Restraint Area Restraint Period Special Conditions 10 11 12 13 14 15 _____ _____ Initials of both parties IMPORTANT: PLEASE NOTE THE INSTRUCTIONS/SUGGESTIONS ON THE NEXT PAGE Page | 14 Schedule Completion – Notes: 1. Principal: Insert entity (person or company) name as specified on cover page. 2. Independent Contractor: Insert entity (person or company) name as specified on cover page and also insert address. 3. Commencement Date: Insert date of commencement of this Agreement. 4. End Date: Insert end date. If ongoing, state “Ongoing”. Key Persons: Insert name or names of the individual/s who will be providing the Personal Training Services. Personal Training Services: Provide details. If there is insufficient space, state “See Attachment X” and set out the details on a separate page/document headed “Attachment X” (which must then be attached to this document). 5. 6. 7. Fees: Insert the agreed fees which could, for example include: • • • a specific fee for each PT session run; or a combination of fee and commission; a commission only structure – for example, you will be entitled to retain 50% of the income you generate from the Personal Training Services. The fees should be fair and should reflect at least what the trainer would earn if employed under the Fitness Industry Modern Award -‐ for an equal number of hours worked (including any penalty rates, loadings, allowances etc. Contact the Fair Work Ombudsman for further information -‐ on 13 13 94 for information or see www.fairwork.gov.au. 8. 9. If there is insufficient space, state “See Attachment X” and set out the details on a separate page/document headed “Attachment X” (which must then be attached to this document). Incentive: Insert details of incentives (if any). Otherwise state “Not Applicable”. If there is insufficient space, state “See Attachment Y” and set out the details on a separate page/document headed “Attachment Y” (which must then be attached to this document). Club: Insert the club name/s and address/es. 10. Billing Period: Inset how often you expect to be billed – eg “weekly” “fortnightly” or “monthly”. 11. Payment Terms: Insert your terms, for example, within 2 weeks of our receipt of your invoice. 12. Specified Insurances: Insert insurances required including professional indemnity, public liability and workers compensation insurance. 13. Restraint Area: If you wish to include restraints make sure they are reasonable and necessary to protect your legitimate interests. Otherwise they will not be enforceable if you wish to try to enforce. A 10 km radius of your club may be reasonable -‐ there is, however, no guarantee that this will hold up. If no restraint is to apply state “Not Applicable”. 14. Restraint Period: See above note. A reasonable restraint period may be somewhere between 3-‐6 months. Again there is no guarantee this will hold up. If there is to be no restraint state “Not Applicable”. 15. Special Conditions: Insert any special conditions as may be agreed. Otherwise, state “Not Applicable”. If there is insufficient space, state “See Attachment Z” and set out the details on a separate page/document headed “Attachment Z” (which must then be attached to this document). 16. Signing: Please ensure that each party signs two copies of the contract (signing page) and initials the bottom of Schedule 1 and any attachments. One copy of the signed document should be given to the contractor and the second should be retained by the principal. __________________ Page | 15