Small Business Agreement - Owner Operator - With Non-Compete by lforsley

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									                 OWNER/OPERATOR AGREEMENT
       THIS AGREEMENT is entered into this ______ day of __________ , 20 ___ , by
and between ____________________ , of _______________ , State of
____________________ , individually and doing business as “____________________,”
(hereinafter referred to as Owner), and ____________________ (hereinafter referred to
as Contractor) of _______________ , State of ___________________ .

       WHEREAS, Owner is and has been for some time engaged in the business of
providing moving and delivery services in the ________________________ area; and

       WHEREAS, Contractor is experienced in providing moving and delivery services;
and

       WHEREAS, it is the mutual desire of the parties that Contractor provide moving
and delivery services for Owner as described in this Agreement, each party acting
independently, in pursuance of his own separate business.

       NOW, THEREFORE, Owner and Contractor agree as follows:

TERM: This Agreement shall commence as of _____________ , 20___ and continue for
an initial term expiring _______________ , 20___ and shall be reviewed at that time and
if the parties agree, shall thereafter be renewed for one (1) year periods.

CONTRACTOR'S FUNCTIONS: Contractor agrees, as an independent contractor, to
perform the services specified in this Agreement, including providing moving and/or
delivery and related services exclusively for Owner in exchange for payment on the terms
and conditions set forth in this Agreement.

INDEPENDENT CONTRACTOR STATUS: In performing all services pursuant to his
Agreement, it is mutually understood and agreed that Contractor shall be and at all times
is acting and performing as an independent contractor. Nothing in this Agreement is
intended to create an employer/employee relationship. The parties agree that Contractor’s
employees and subcontractors are not employees of Owner and accordingly are not
eligible for any compensation, fringe benefits, pension, workers' compensation, sickness
or health insurance benefits or other similar benefits accorded employees of Owner.
Nothing in this Agreement is intended to create an employer/employee relationship or to
allow Owner to exercise control or direction over the manner or method by which
Contractor or its employees perform the services which are the subject matter of this
Agreement.

PAYMENT AND EXPENSES: Contractor shall submit an invoice to the Owner on a
________________ basis for services rendered in the previous month. For each invoice
submitted by Contractor to Owner, Owner shall pay the Contractor such amount it has
received in a timely manner.



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Payments prescribed in this Agreement shall constitute all compensation to Contractor
for all costs of its services, including, but not limited to, direct costs of labor of
employees engaged by Contractor, including Contractor, travel expenses, telephone
charges, typing, duplication, and any and all other costs, expenses, and charges incurred
by Contractor, his agents and employees in carrying out its duties under this Agreement.
Contractor shall be solely responsible for payment of its taxes, social security, and all
expenses incurred in connection with this Agreement.

All amounts are due net 30 days from Contractor's submittal of the invoice.
Failure to pay any amounts overdue for 30 days or more shall constitute a material breach
of this Agreement and shall constitute sufficient grounds for the Contractor to cease all
work under this Agreement.


OWNER’S RESPONSIBILITIES:


CONTRACTOR’S RESPONSIBILITIES: It is understood and agreed that Contractor
has the professional skills, vehicles and equipment necessary to perform the services
agreed to be provided and that Owner relies upon the professional skills, vehicles and
equipment of Contractor to do and provide his services in a skillful and professional
manner consistent with the applicable professional standard of care for Contractor’s
profession. Contractor shall also have the following responsibilities.

        (a) Vehicles: All vehicles used by Contractor in the performance of its duties as
set forth in this agreement must by approved by Owner. It is suggested that the vehicles
used by Contractor be of the following make and model: a 2004 model year or newer
cutaway type van. Additionally, the vehicle must be equipped with a retractable ramp, a
step bumper, a horizontal E-Track for cargo control. The color must be white and the
doors must display the “Smart Move” magnet/decal.

       At all times during the term of this Agreement, Contractor shall maintain all
vehicle(s) and equipment in good repair and appearance.

        (b) Equipment: All equipment intended to be used or used by Contractor in
connection with the services provided by this agreement must be approved by Owner.
This equipment will include, but not necessarily limited to, those items set forth on the
attached Exhibit A.

        (c) Code of Conduct: Contractor agrees to perform all work and services under
this Agreement in a good workmanlike and professional manner, in accordance with the
best standards and practices prevailing in the business. Contractor also agrees to
comply, at all times, with the Code of Conduct attached hereto as Exhibit B.

       (d) Expenses: Contractor shall have the sole responsibility for all expenses
associated with the performance of services as set forth in this agreement including, but



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not necessarily limited to, fuel, oil, tires and other parts, supplies and equipment
necessary or required for the safe and efficient operation and maintenance of its
vehicle(s) and related equipment used by Contractor for the performance of its
obligations. Contractor shall also be responsible for expenses of every other nature
including, but not limited to, the expense of road service and repair and all other expenses
associated with the use and operation of all vehicle(s).

        (e) Contractor shall if it has employees, have in place a sexual and non-sexual
harassment policy and shall if it hires independent contractors, ensure that such
independent contractors fully understand and are in full compliance at all times with the
sexual and other harassment program.

        (f) If the Contractor uses employees, rather than independent contractors to assist
in the performance of his duties as set forth in this agreement, Contractor shall have
exclusive control and direction of employees operating the vehicles of Contractor or
otherwise engaged in moving and/or delivery services. Additionally, Contractor assumes
full responsibility for the acts and omissions of such employee and if employees are
found to be employees shall have exclusive liability for the payment of local, state and
federal payroll taxes or contributions or taxes for unemployment insurance, workers
compensation, old age pensions or other social security and related protection with
respect to the persons engaged in the performance of such transportation services and
agrees to comply with all applicable rules and regulations pertaining thereto. Contractor,
in performance of its duties and responsibilities under this Agreement, shall employ only
competent, able and legally licensed and qualified personnel. The costs and expenses
associated with the contracting with or employing persons to operate trucks is the sole
cost and expense of the Contractor or those who contract with Contractor.

       (g) Records: Contractor shall maintain adequate records and documentation to
substantiate all charges for services provided in the performance of the Agreement,
including, but not limited to, hours worked, materials used, and expenses incurred.
Contractor shall provide copies of these records and documentation if they are requested
by the Owner. Contractor shall maintain records and documents related to the
performance of this Agreement, and shall allow the Owner access to such records, upon
request.


CONTRACTOR'S LICENSE: Contractor warrants and represents that he has a valid
New Hampshire driver’s license (what class???) and agrees to provide Owner with a
copy of his license within five (5) days after the date this contract is signed and on an
annual basis thereafter. Contractor’s failure to maintain a valid driver’s license shall
result in the automatic termination of this Agreement.

INSURANCE: At all times during the term of this Agreement, Contractor, at his
sole expense, shall maintain insurance of the types and amounts specified below:

       (a) Commercial Automobile Liability insurance with limits for any auto of



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not less than One Million Dollars ($1,000,000.00) combined single limit per
occurrence. Commercial auto insurance will include UIM/UM liability at One
Million Dollars. ($1,000,000.00);

       (b) If Contractor is utilizing other drivers for its trucks, he must certify, in
writing, that Contractor or subcontractor driver is maintaining current certificates of
insurance on all subcontracted equipment with limits described in this agreement.

        (c) Commercial General Liability Insurance providing extended
coverage, including without limitation: blanket contractual liability; person
injury; fire legal liability; broad form property damage liability, including
completed operation; extended bodily injury coverage and stop gap
coverage with limits of liability of not less than One Million Dollars
($1,000,000.00) per occurrence.

        (d) Insurance coverages and amounts listed above must extend to the
all geographic areas in which Contractor operates.

         (e) All such insurance shall be maintained with active and reliable insurance
companies satisfactory to Owner. All insurance shall provide for thirty (30) days prior
written notice to Owner prior to cancellation, non-renewal or material change of such
coverage. Contractor shall provide to Owner certificates of all such
insurance promptly upon execution of this Agreement: Each certificate of insurance
shall name Owner as an additional insured on all such policies. Said certificates
shall list all insured equipment by year, make, and model

         (f) Contractor will deliver to Owner no later than the commencement of work,
certificates of insurance stating that the above statement that Contractor is insured for
work performed by him and his employees under the terms and provisions of this
Agreement. Underwriters will have no right to recovery or subrogation against Owner,
its divisions, affiliates, or subsidiary companies, it being the intention of the parties that
the insurance so affected shall protect both parties and be primarily liable for any and all
losses covered by the above described insurance. It is further understood that the
insurance provided by Contractor under this Agreement shall be primary insurance for all
assureds, and such other insurance carried by Owner and its affiliated and
subsidiary companies shall not be called upon by Contractor's insurers for contributing,
deficiency, concurrent or double insurance or otherwise.


INDEMNITY: Contractor agrees to protect, defend, indemnify and hold Owner and his
employees free and harmless from and against any and all losses, claims, liens, demands
and causes of action of every kind and character including the amount of judgment,
penalties, interests, court costs and legal fees incurred by Owner in defense of same,
arising in favor of any party, including governmental agencies or bodies on account of
taxes, liens, claims, debts, personal injuries, death (including employees of Contractor),
or damages to property (including property of Contractor), and without limitation by



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enumeration all other claims or demands of every character occurring or in any way
incident to, in connection with or arising directly or indirectly out of, the work to be
performed by Contractor hereunder, except only claims arising out of accidents resulting
from sole negligence of Owner. Contractor further agrees to investigate, handle, respond
to, provide defense for, and defend any such claims, demand or suit at its expense and
agrees to bear all other costs and expenses related thereto, even if said claim, demand or
suit is groundless, false or fraudulent.


COMPLIANCE WITH FEDERAL, STATE AND MUNICIPAL LAWS: Contractor
will comply with all federal, state and municipal laws and regulations relating to the
performance of its duties hereunder including, but not necessarily limited to, those
laws and regulations concerning moving and delivery services; the operation of motor
vehicles; the establishment of pay rates; the payment of employees; the payment of taxes;
the maintenance of payroll and other records; the reporting of employee information to
governmental agencies and the posting of such notices and the providing to employees of
such pamphlets as is required by law. Owner will have the right at any time during
working hours to inspect Contractor's books and records to make certain that Contractor
is complying with said federal, state and municipal laws and regulations.

      Contractor shall also be responsible for the creation and holding of all
employment records or documents required by law which includes, but is not limited to:

         (a) Time and payroll records for all employees of Contractor performing labor for
Owner;

       (b) All cancelled checks, reporting forms, or other appropriate proof that
Contractor has forwarded to the appropriate governmental authorities regarding all
amounts payable to them with respect to his employees under laws pertaining to the
following:
               (i) Unemployment insurance; state disability insurance; social security;
       and income tax withholding.

                 (ii) Cancelled paychecks or other appropriate proof employees have been
         paid the wages due them.

        (c) Contractor shall furnish to Owner copies of the records and other documents
listed above as required by law or upon Owner's request. Contractor shall also permit
Owner to inspect all records or documents listed above at any time during normal
business hours.


FAILURE TO PERFORM: Neither party to this Agreement shall be required to
perform, or be liable for failure to perform, if nonperformance is caused by shortages of
equipment, materials or supplies; shortages transportation difficulties; war, hostilities or
national emergencies; acts of God; the elements; mechanical breakdown; power failure;



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or causes beyond the control of the party unable to perform. In the event that Contractor
fails to perform under any term or provision of this Agreement, said failure to perform
will constitute a material breach of this contract and Owner may at its election, contract
with any other party of its choice to perform the work described in this Agreement.


INDEPENDENCE OF PARTIES: It is understood, agreed and intended by the parties
to this Agreement that in performing this Agreement the parties are each separately and
independently carrying on their respective farming businesses, and that this Agreement
does not and shall not create or constitute a partnership or joint venture between them.
NOTICES: All notices to be given under this Agreement shall be considered delivered
when mailed to the parties by United States Postal Service, postage pre-paid, addresses as
follows:


CONTRACTOR:            ___________________________
                      ___________________________
                      ___________________________


OWNER:                ___________________________
                      ___________________________
                      ___________________________


BINDING ON SUCCESSORS: This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors, devisees and assigns of the
parties hereto.

ENFORCEABILITY: In the event that it shall be determined by a court of competent
jurisdiction that any provision herein contained is illegal or unenforceable, such
determination shall solely affect such provision and shall not impair the remaining
provisions of this Agreement.

DEFAULT: Contractor shall be in default under this Agreement upon the happening of
any of the following events or conditions:

      (a) Failure to perform any item or provision set forth or referred to in this
Agreement;

      (b) Breach of warranty, representation, or statement made or furnished to the
company or on behalf of Contractor.

      In the event Contractor fails to perform under any term or provision of this
Agreement, said failure to perform will constitute a material breach of this Agreement




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and Owner may, at its election, contract with any other party to perform the work
contemplated herein.

WAIVER OF DEFAULT: No waiver by Owner or Contractor of any default shall
operate as a waiver of any other default or of the same default on a future occasion.

INTEGRATED DOCUMENT: This writing is intended by the parties as a final
expression of their Agreement and is intended also as a complete and exclusive statement
of the terms of their agreement. No course of prior dealings between the parties and
no usages of the trade shall be relevant to supplement or explain any term used in this
Agreement. This Agreement may be amended only by a written instrument signed by an
authorized representative of the parties hereto.


ASSIGNMENT: During the term of this Agreement, neither the Owner nor Contractor
shall assign this contract, any portion of it, or any right, claim, duty or obligation under it
without the express written approval of the other party.


TERMINATION: The Agreement may be terminated in the following manner:

        (a)     Termination by Expiration of Term: This Agreement shall terminate at the
expiration of the initial or any subsequent term if it has not been renewed by the parties.

       (b)     Mutual Termination: In the event that the parties shall mutually agree in
writing, this Agreement may be terminated on any date and upon the terms stipulated in
such mutual agreement.

        (c)     Termination for Notice of Substantial Default: In the event that either
party shall give written notice to the other that such other party has substantially
defaulted in the performance of any other obligation under this Agreement, and such
default shall not have been cured within fifteen (15) days following the giving of such
notice, the party giving such notice shall have the right to terminate this Agreement with
or without cause. A substantial default shall be defined to mean the material failure of
either party to perform its duties and obligations described.

         (d)     Effect of Termination: Upon termination of this Agreement, Owner and
Contractor shall be required to carry out any provision hereof which contemplates
performance by it, subsequent to such termination date; and, such termination shall not
affect liability or other obligation of either party which may have accrued prior to such
effective date of the termination.

MUTUAL COOPERATION: Owner and Contractor shall provide prompt written
notification to one another of any lawsuits, claims or threatened claims that pertain to
services provided pursuant to this Agreement and shall reasonably cooperate with one




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another in the defense of any such lawsuits, claims or threatened claims to the extent
allowed by law. Each shall notify the other of any intent to settle any such suit.


GOVERNING LAW: This Agreement shall be governed by the laws of the State of
____________________ .

AMENDMENT: This Agreement shall not be amended except by mutual written
agreement of the parties.


CONFIDENTIALITY: Contractor recognizes and acknowledges that in the course of
performing his duties as set forth in this agreement he may have access to entrusted with
confidential information of Owner relative to the financial status, customer relations and
operation of Owner’s business. The protection of this confidential information against
unauthorized disclosure and use is of critical importance to Owner and Contractor, the
disclosure of which would be highly detrimental to the continued operation of Owner’s
business Contractor further acknowledges and agrees that the right to maintain and
protect this information constitutes a proprietary right which Owner is entitled to protect.

        Accordingly, Contractor agrees that neither Contractor nor his employees will at
any time, either while contracting with Owner or, thereafter, make any independent use,
or disclose to any other person or organization, any such confidential information.
Contractor further agrees that he will not use this information for his own financial
benefit except as specifically set forth in this Agreement.

        In the event of a breach or threatened breach by Contractor or its suppliers of the
provisions of the Agreement, Owner shall be entitled to an injunction restraining
Contractor or its suppliers from disclosing, in whole or in part, such confidential
information. Nothing herein shall be construed as prohibiting Owner from pursuing any
other remedies available to it for such breach or threatened breach, including the recovery
of damages from Contractor.


DOCUMENTS: Contractor is responsible for maintaining all drivers’ logs, invoices,
maintenance records and all necessary Owner documents and forms relevant to and
required for the performance contemplated under this Agreement. Contractor shall
provide copies of all such documents to Owner upon reasonable request.

PRONOUNS, SINGULAR AND PLURAL FORM: All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine and neuter as the identity of
the person or persons referred to may require, and all words shall include the singular or
plural as the context or the identity of persons may require.

SEVERABILITY: If any term, provision or condition contained in this Agreement
shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall



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not be affected thereby and each term, provision and condition of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.

NON-COMPETITION AGREEMENT: Owner and Contractor acknowledge and
agree that the execution of a separate “Covenant not to Compete” by Contractor is a
material condition of this agreement. Accordingly, the parties agree that prior to or
simultaneously with the execution of this Agreement, Owner and Contractor shall have
entered into such an agreement relative to the rights and obligations of both parties
subsequent to the termination of this Agreement in a form mutually agreed upon and
acceptable to both parties. See Exhibit C.



       IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above written.



OWNER:



____________________________                         ______________________________
Witness                                                            , Individually
                                                     and doing business as “__________”



CONTRACTOR:



____________________________                         ______________________________
Witness




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EXHIBIT A




   10
   EXHIBIT B


CODE OF CONDUCT




      11
                                       EXHIBIT C


                           NON-COMPETE AGREEMENT

        FOR VALUABLE CONSIDERATION, the receipt and adequacy of which is
hereby acknowledged, ____________________, individually and doing business as
“_______________,” with an address of ____________________ , Town of
____________________ , State of _________________ , (hereafter, “Owner”) and
______________________ , of ________________, State of ________________,
(hereafter “Contractor”), agree as follows:

       WHEREAS, Owner and Contractor are entering into an agreement relative to
Contractor’s provision of moving and delivery services in connection with Owner’s
business;

         WHEREAS, the Owner has developed important and valuable relationships with
its clients and customers and   ‘

      WHEREAS, the parties expressly understand and agree that but for this Agreement
Owner would not have entered into the Agreement nor utilized Contractor’s services;

       NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants
and agreements herein set forth, the parties agree as follows:

      1. Covenant Not To Compete: Contractor hereby covenants and agrees with
Owner that during the Term of this Agreement Contractor shall not directly or indirectly:

        (a) operate, develop, manage, lease, or own any interest (other than the ownership
of less than 5% of the equity securities of a publicly traded company) in any business
which is involved with providing moving and/or delivery or related services;

       (b) compete with Owner or its subsidiaries and affiliates in the operation or
development of any business which is involved with providing moving and/or delivery
services within thirty (30) miles of Owner’s business address as set forth above;

       (c) be employed by any business which owns, manages or operates a business
which is involved with providing moving and/or delivery services within thirty (30) miles
of Owner’s business address as set forth above;

        (d) interfere with, solicit, disrupt or attempt to disrupt any present or prospective
relationship, contractual or otherwise, between Owner and any customer, client, supplier
or employee of Owner; or (e) solicit any present or prospective employee of Owner to
leave their employment with Owner, or to hire any such employee to work in any
capacity.




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         5. Contractor specifically acknowledges and agrees that the restrictions set forth
in this Agreement are reasonable and necessary to protect the legitimate interests of
Owner, and that Owner would not have entered into the Agreement, nor utilized
Contractor’s services in the absence of such restrictions. The parties specifically agree
that the thirty (30) mile restriction is reasonable and necessary given the geographic area
where Owner provides services and has established valuable business relationships and
contacts. Contractor further acknowledges and agrees that any violation of the provisions
of this Agreement will result in irreparable injury to Owner, and that the remedy at law
for any violation or threatened violation of such Agreement shall be inadequate in that in
the event of any such breach. Owner, in addition to any other remedies or damages
available to it at law or in equity, shall be entitled to temporary injunctive relief before
trial, and to permanent injunctive relief without the necessity of proving actual damages.

        6. The Term of this Agreement shall commence on the date of the last signature
by a party below, and shall continue for a period of three (3) years after the termination or
expiration, regardless of cause, of Contractor’s agreement with Owner.

        7.    This Agreement represents the entire understanding between the parties
regarding the non-compete agreement, and the terms of this Agreement supersede the
terms of any prior agreements or understandings, written or oral. This Agreement may
not be amended except in a writing signed by both parties. The provisions of this
Agreement shall be severable, and in the event that any provision or part of provision is
held to be invalid or unenforceable, the remaining provisions, or parts of the provision,
will remain in full force and effect. Failure by Owner to enforce or exercise any provision
or right contained in this Agreement shall not be construed as a present or future waiver
of such provision or right. In the event of a breach of this Agreement by Contractor,
Contractor shall pay to Owner its reasonable attorneys fees and court costs incurred by
Owner as a result of any breach.

        8. This Agreement shall be governed by and construed under the laws of the State
of ___________________. The parties expressly understand and agree that any lawsuit
arising from the negotiation, execution, operation or breach of this Agreement shall be
filed only in ____________________ County (State of ____________________ )
Superior Court, in ____________________, ____________________, the parties thereby
expressly waiving any other judicial forum.



Date:_______________                        _______________________________
                                                    Owner



Date: ______________
                                              _______________________________
                                                    Contractor



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