Instructor Agreement
This Blue Sky Training Instructor Agreement (“Agreement”) is entered by Blue Sky Training, LLC a Colorado limited liability company (“Provider") and ________________ a (state) ____________ (entity) _______________ (“Contractor” and together with Blue Sky the “Party” or “Parties”).
Whereas, Contractor has the capacity to provide educational services of the type contemplated by this Agreement and the attached Exhibit A (“Services”).
Whereas, Provider desires the services of Contractor to teach courses and programs (“Courses”).
Now, therefore, the recitals are incorporated into this Agreement by reference, and for good and valuable consideration the receipt of which is acknowledged, the parties agree as follows:
Services and Scope. Contractor shall provide the Services using best efforts according to industry standards. The Parties may agree to modify the scope of Services in writing. If Provider requests a modification to the Services, the Contractor has five days to provide a corresponding change in the payment terms. If the Contractor does not request a change in payment, then the Services are deemed modified without additional consideration. In the event the Parties dispute a change to the scope of Services, then the Contractor shall continue to perform the Services during the pendency of the dispute. The Parties agree to work in good faith to resolve any dispute.
Warranties. Contractor represents and warrants: (a) he or she has sufficient skill and ability to provide the Services according to the terms of this Agreement; (b) that lectures and educational materials do not contain any content that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive; (c) the Services and Deliverables (defined below) do not violate, infringe or impede the legal or equitable rights, including intellectual property rights, of any person, firm, corporation, or other organization; and (d) he or she has the full power and authority to enter into this Agreement, and performance of Contractor’s Services and obligations in this Agreement does not and will not infringe the rights of any third party.
Commitments. Contractor shall: (1) satisfy the learning objectives set by Provider for the Course as outlined in the Course material; (2) review student feedback with Provider after each Course; and (3) make adjustments, omissions, or additions to Courses as determined in review meetings or as otherwise directed by Provider.
Bio, Photo & W9 Form. Contractor shall provide a professional bio, headshot photo, and a completed W9 form, to Provider with this signed agreement.
Payment. Provider shall pay Contractor according to the payment terms in Exhibit A and this Section. Provider shall reimburse Contractor for expenses specific to this Agreement. All expenses must be pre-approved in writing by Provider. Contractor shall provide original receipts and other supporting documentation in accordance with Provider expense reimbursement policies.
Material. Provider shall provide Contractor reference material for use by Contractor in the Course. Provider shall provide Contractor with student reference material for each Course registrant. Contractor shall be responsible for providing its own computer and loading the provided reference and Course materials to the computer.
Audio / Visual. The Provider shall provide the Contractor with a list of the audio-visual equipment necessary for each Course. The Contractor agrees to use and store the equipment in accordance with manufacturer’s recommendations and Provider’s procedures. Regardless of who provides the equipment, Contractor is responsible for replacing any equipment that is damaged when under the care of the Contractor (including use, storing, and transportation) with equivalent equipment as specified by the Provider.
Works Made for Hire and Other Content. The Contractor acknowledges that all original works of authorship which are made by the Contractor (solely or jointly with others) within the scope of the Services and which are protectable by copyright are “works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section 101). The Provider is the author and sole owner of all “works made for hire” and other content. Without limitation, content includes (a) the Course reports, summary information, recordings and transcriptions, and (b) all other information produced or collected as part of the Courses (collectively and individually with the “works made for hire” the “Deliverables”).
Intellectual Property. Provider owns, or has right under license to, all rights, title, goodwill, and interest, including all related intellectual property rights (expressly including all rights to patents, copyrights, trademarks, and trade secrets in any jurisdiction throughout the world), in and to the Deliverables, content provided by Provider to the Contractor as part of the Courses, and any suggestions, ideas, enhancement or development requests, feedback, or recommendations provided by Contractor relating to the foregoing. The Provider, and its licensor’s, name and logos, as well as the Courses names and logos are trademarks of Provider or are used by permission. All goodwill from the foregoing trademarks inures to the benefit of the owner thereof. The Contractor may not use the Provider trademarks, or any confusingly similar mark, without the express written permission of Provider. If for any reason the Contractor gains any rights in and to Provider’s, or its licensor’s, intellectual property, then the Client shall automatically assign such rights to Provider or the applicable licensor without any further action from either Party. If such rights cannot be assigned, then the Contractor hereby grants Provider, or the applicable licensor, an irrevocable, universal, fully paid, sublicensable, exclusive license to such intellectual property. Notwithstanding the foregoing, the Contractor retains all right, title, and interest in and to Client’s personal information and trade secrets.
BPI Intellectual Property. Without limiting the foregoing, Provider has rights to use Building Performance Institute (“BPI”) materials under license. Contractor agrees to be bound to the Provider on the same terms as the Provider is bound to BPI. On request Provider shall provide information on the terms and conditions applicable to use of BPI materials.
Limitation on Intellectual Property Use. The Contractor may only use Provider’s intellectual property to perform the Services as part of the Courses, or with the express written permission of Provider. The Contractor may not use Provider’s intellectual property for any other purpose, including without limitation as a reference for source material or otherwise.
Independent Contractor. The Contractor is an independent contractor, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between Contractor and the Provider for any purpose. Contractor has no authority (and shall not hold his or herself out as having authority) to bind the Provider, and Contractor shall not make any agreements or representations on the Provider’s behalf without the Provider’s prior written consent. The Contractor is not required to work exclusively for the Provider. The Provider will not pay the Contractor a salary, but rather the contract rate set forth in Exhibit A. Except for the reference material, or on prior written consent, the Provider shall not provide the Contractor with equipment. The Provider shall only make payments to the Contractor’s trade or business name and will not make payments to Contractor individually. Contractor business operations and those of the Provider may not be combined in any way. Instead, operations shall remain separate and distinct.
Tax Duties and Responsibilities. Neither federal, nor state, nor local income tax nor payroll tax of any kind shall be withheld or paid by Provider on behalf of Contractor or the employees, officers, or shareholders of Contractor. Contractor shall not be treated as an employee with respect to Services performed hereunder for federal or state tax purposes. Contractor understands that it is responsible to pay, according to law, its income tax.
Term. This Agreement is effective as of the date set forth below and shall remain in effect for one year (“Initial Term”). Unless either Party gives notice of non-renewal at least 30 days before the end of the Term, this Agreement shall automatically renew for successive one-year terms (“Renewal Term” and together with the Initial Term, the “Term”).
Termination: The Provider may terminate this Agreement without cause on 30 days’ prior written notice to the Contractor. Either Party may terminate this Agreement upon the giving of written notice of termination with cause. Reasonable cause shall include, without limitation: (a) material violation of this Agreement; (b) any act exposing the other Party to liability to others for personal injury or property damage; (c) cancellation of the applicable Course(s); (d) any circumstance beyond the control of either Party and such cause is not resolved within 30 days’ notice thereof; or (e) the bankruptcy or notice of inability to pay creditors of either Party. In the event of a termination by Contractor, Contractor agrees to refund any advance payment received from Provider. On termination for any reason, the Contractor shall cease all use of, and return, any intellectual property, products, equipment, or other materials provided by the Provider or any licensor, to the Provider, and shall cease to represent itself as a representative of the Provider or the Courses.
Products. Contractor shall not sell, transfer, or use commercially the Deliverables or other materials he or she is given access to by the Provider before, during, or after the Course or termination or expiration of this Agreement, as such information is the proprietary information of the Provider or used by permission. By way of example and without limitation this includes books, training classes, other courses, branded products, and services (including the Services).
Notices. Any notice given in connection with this Agreement shall be in writing and shall be delivered to the Party at the Party's address stated herein with a method to prove receipt. Any Party may change its address stated herein by giving notice of the change in accordance with this Section.
Indemnification. Contractor agrees to indemnify and hold harmless Provider, its members, managers, and affiliates (“Indemnified Party”) against any and all claims, suits, orders, or judgments brought or threatened against the Indemnified Party (“Claim”) including all attorneys’ fees, filing costs, expert witness fees, and costs of enforcement against an insurance provider (“Losses”), as a result of (a) Contractor’s breach of this Agreement, (b) violation of applicable law or third party rights, or (c) negligence acts or omissions, gross negligence, willful misconduct, or intentional acts or omissions. The Contractor shall not be relieved of its indemnity obligations based on an Indemnified Party’s delay in notifying (or a failure to notify) the Contractor of any applicable Claim or Loss except to the extent that such delay or failure materially prejudices the Contractor’s defense of such Claim. The Indemnified Party shall have the right to participate in the defense of a Claim at its own expense. The Contractor may not settle any Claim for which an Indemnified Party is entitled to indemnification without such Indemnified Party’s prior written consent unless such settlement (x) includes a full and final release of all threatened or pending Claims against such Indemnified Party; (y) does not require any Indemnified Party to make any admission of liability, fault or wrong-doing; and (z) does not require any Indemnified Party to take or refrain from taking any specific action. The indemnity obligations shall not be construed by the Parties to indemnify an Indemnified Party against such Indemnified Party’s own gross negligence or willful, wanton, or intentional misconduct.
Insurance. Each Party represents and warrants that it is currently insured and covenants that, at all times during the Term, it will maintain a comprehensive general liability insurance policy (including errors and omissions and contractual liability coverage) with a financially sound and reputable insurer which is sufficient to adequately protect against the risks associated with the Services and Courses contemplated by this Agreement. A copy of the respective insurance policy terms shall be made available upon request by the other Party. Contractor shall name Provider as an additional insured under Contractor’s commercial general liability insurance policy.
Safety. The Parties agree that a safe work and learning environment contribute to the prevention of injuries and reduction of property damage. The Parties recognize that a proactive approach to safety of faculty and the prevention of violence and safety are matters of mutual concern.
If the Contractor encounters an emergency situation in which (i) the safety issues dictate immediate attention or (ii) actions to prevent significant damage or danger are required, the Contractor shall contact the Provider immediately. The Contractor may make recommendations of actions to be taken including contacting the local police department to inform them of the issue. If these emergency situations should occur during non-contracted time and the Contractor is asked to assist, remuneration will be considered.
The Parties shall exercise, to the best of their abilities under the circumstances, the authority and responsibility to protect, curtail, control, and prevent injury to any parties involved.
Contractor agrees that all Contractor personnel will comply with all safety requirements, including federal, state, and local laws and regulations and will cooperate with Provider management in meeting all such requirements. Contractor agrees to educate and enforce all safety requirements with students and Provider faculty. Contractor will be subject to disciplinary action, including immediate termination and removal, for failure to follow safety procedures of a reasonable nature prescribed by the Provider and applicable law, or for willfully or negligently creating unsafe or hazardous working conditions.
If a work area is not in compliance with safety requirements, the Contractor shall promptly notify the Provider.
Choice of Law. Any dispute under this Agreement or related to this Agreement shall be decided in accordance with the law of the State of Colorado, without regarding to any conflict of law provision that would permit application of the laws of another jurisdiction.
Arbitration. The Parties agree any dispute arising from, or related to, this Agreement and any claim arising out of or in connection thereto (including any non-contractual disputes, acts or omissions, or claims in contract, tort, or otherwise) will be resolved by submission to arbitration. The Parties agree to select a mutually agreeable arbitrator. If they cannot agree to an arbitrator, then the Parties will each select an arbitrator, who will then select a third arbitrator to serve as a 3-arbitrator panel. The Parties agree to arbitrate a dispute at a location that is mutually convenient to both Parties, which may include virtual arbitration. All decisions and awards rendered by the arbitrator will be final and binding on the Parties for all questions submitted to such arbitrator and the costs associated with such submission shall be shared equally by the Parties unless the arbitrator decides otherwise. The Parties waive all rights of appeal therefore to any court or tribunal and agree that the only recourse by any Party to any court will be for the purpose of enforcing an arbitration award. The Parties submit to the venue and jurisdiction of any court solely for the purpose of enforcement of any arbitration award. To the extent not addressed in this Agreement, the American Arbitration Association (AAA) commercial arbitration rules govern arbitration. Notwithstanding the foregoing, Provider may seek injunctive relief allowed by this Agreement with a court having jurisdiction without first pursuing arbitration.
Consequential Damages. Notwithstanding anything to the contrary contained in this Agreement, and to the fullest extent permitted by law, it is agreed that no Party shall be liable to the other in any event for any consequential, special, or punitive damages and no Party shall be entitled to recover from another Party any consequential, special or punitive damages in connection with this Agreement, arising under any theory including lost production, stop work, tort, contract, or statutory.
Entire Agreement, Severability, and Survival. This Agreement and the attachments hereto are the sole and entire agreement between the Parties and supersedes all prior and contemporaneous understandings and agreements whether written or oral. In the event that any Section of this Agreement is found to be inconsistent with existing state or federal law, the provisions of such state or federal law shall prevail and, if any Section herein is finally determined to be invalid and unenforceable by a court or other authority having jurisdiction, such Section shall be considered void, but all other valid provisions hereof shall remain in full force and effect. The Parties agree to negotiate the invalid Section to bring it in compliance with applicable law while affecting the original intent of the Parties as closely as possible. Negotiation on the Section(s) found invalid shall commence within thirty (30) days of a request of either Party. Each Section which must survive termination or expiration to be effective shall survive expiration or termination.
Amendment and Counterparts. This Agreement may be amended or modified only by written agreement executed by the Parties. This Agreement may be executed in counterparts, which together constitute the same Agreement. This Agreement may be executed by electronic signature.
Exhibit A
This Exhibit A is made a part of the Blue Sky Training Instructor Agreement (“Agreement”) by reference. Any term not defined herein is defined in the Agreement.
COURSE DEFINITION & SCOPE
COURSE NAME: BPI Courses and radon, such as but not limited to BPI BSP, BA-T, BA-P, IDL. Courses will be determined by PROVIDER.
PLACE/LOCATION: 4349 E County Rd 60, Field test at the BPI approved test facility.
CAPACITY/ ROLE / POSITION: Online and Field Test Proctor, Classroom Instruction
CONTRACTOR RESPONSIBILITIES: follow all approved Provider process and procedures
Field Test Site Renewal
Contractor shall work with the Provider to renew the field test home with Building Performance Institute (“BPI”) each year. Renewals will be conducted so there are no dates unavailable to conduct a field test. Provider agrees to pay BPI renewal fees for the test home.
Use of test house and how to book
PAYMENT TERMS
Provider and Contractor agree to the following terms for submitting invoices and processing payments.
BPI Online proctored test
BA-T Field Exam
BPI EA Field Exam
BPI ALCI Field Exam
Test House rental XX for the day
½ day BA-T training
Course review
For anything beyond the list above, payment will be calculated with the following rates.
Hourly Rate $___
Daily Rate $___
Within 7 days of the end of each month, Contractor will provide an invoice to the Provider for all work performed the previous month.
Provider will make payments on Net 30 terms, from receipt of invoice.
Invoices shall be sent to:
Blue Sky Training
4349 E County Road 60
Wellington, CO