Independent Contractor Agreement - West Virginia

INDEPENDENT CONTRACTOR AGREEMENT

State of West Virginia

Table of Contents

1. Parties
2. Recitals
3. Scope of Services
4. Term and Termination
5. Compensation and Payment
6. Independent Contractor Status
7. Statutory Acknowledgments
8. Tax Obligations
9. No Employee Benefits
10. Insurance
11. Intellectual Property
12. Confidentiality
13. Non-Competition and Non-Solicitation
14. Indemnification
15. Dispute Resolution
16. West Virginia-Specific Notices
17. General Provisions
18. Signatures

1. PARTIES

This Independent Contractor Agreement ("Agreement") is entered into as of [__/__/____] ("Effective Date") by and between:

Company/Principal:
Name: [________________________________]
Address: [________________________________]
City: [________________________________] State: West Virginia ZIP: [____]
EIN/Tax ID: [________________________________]

Independent Contractor:
Name: [________________________________]
DBA (if applicable): [________________________________]
Address: [________________________________]
City: [________________________________] State: [____] ZIP: [____]
SSN/EIN: [________________________________]

2. RECITALS

WHEREAS, Principal desires to engage Contractor to perform certain services; and

WHEREAS, Contractor represents that Contractor is an independently established business;

CLASSIFICATION WARNING: This Agreement records the Parties' intent and required acknowledgments. It does not establish status unless the complete statutory test and the actual facts are satisfied, and it does not decide status outside the Act's limited scope.

NOW, THEREFORE, in consideration of the mutual covenants herein, the Parties agree as follows:

3. SCOPE OF SERVICES

3.1. Contractor shall perform the following services ("Services"):
[________________________________]

3.2. Deliverables: [________________________________]

3.3. Contractor shall determine the manner, method, and means of performing the Services.

4. TERM AND TERMINATION

4.1. Term. This Agreement begins on [__/__/____] and continues through [__/__/____].

4.2. Termination for Convenience. Either Party may terminate upon [____] days' written notice.

4.3. Termination for Cause. Either Party may terminate immediately upon material breach if not cured within [____] days.

4.4. Effect of Termination. Contractor delivers completed work and is paid through termination date.

5. COMPENSATION AND PAYMENT

5.1. Compensation.

☐ Fixed fee of $[________________________________]
☐ Hourly rate of $[________________________________] per hour
☐ Milestone-based payments per Exhibit A
☐ Other: [________________________________]

5.2. Invoicing. Contractor shall submit invoices [________________________________].

5.3. Payment Terms. Payment due within [____] days of valid invoice.

5.4. Expenses. Contractor is responsible for the majority of supplies and other variable expenses incurred in connection with the Services, except: (a) expenses for non-local travel; (b) expenses specifically provided for reimbursement in this Agreement; (c) expenses commonly reimbursed under industry practice. Pre-approved reimbursable expenses: [________________________________]

6. INDEPENDENT CONTRACTOR STATUS

6.1. Classification. Principal intends to engage Contractor as an independent contractor and not as an employee for purposes of the West Virginia Workers' Compensation Act, Unemployment Compensation Law, Human Rights Act, and Wage Payment and Collection Act.

6.2. Complete Statutory Test Required. The signed written contract and acknowledgments in Section 7 address W. Va. Code § 21-5I-4(a)(1) only. Contractor must also satisfy subsection (a)(2), subsection (a)(3), and either subsection (a)(4) or (a)(5), in contract and fact. Section 16 records those additional elements.

7. STATUTORY ACKNOWLEDGMENTS

Pursuant to W. Va. Code § 21-5I-4(a), Contractor acknowledges and understands all of the following:

☐ (1) Contractor is providing services as an independent contractor

☐ (2) Contractor will not be treated as an employee for purposes of the Workers' Compensation Act, Unemployment Compensation Law, Human Rights Act, or Wage Payment and Collection Act

☐ (3) Contractor will not be provided by Principal with either workers' compensation or unemployment compensation benefits

☐ (4) Contractor is obligated to pay all applicable federal and state income taxes, if any, on money earned under this relationship, and Principal will not make tax withholdings from payments

☐ (5) Contractor is responsible for the majority of the supplies and other variable expenses incurred in connection with the contracted Services, unless: (a) the expenses are for non-local travel; (b) this Agreement specifically provides for reimbursement; or (c) the expenses are commonly reimbursed under industry practice

These statutory acknowledgments do not waive rights or duties that apply if the complete test is not satisfied or a different law governs the question.

8. TAX OBLIGATIONS

8.1. Contractor is responsible for taxes legally imposed on Contractor's business and personnel.

8.2. Principal may report payments and withhold or remit amounts when required by then-current law. A tax form or information return does not itself establish worker status.

8.3. Principal shall issue Form 1099-NEC or another information return when required by current federal law and IRS instructions.

8.4. Contractor shall provide a W-9 prior to first payment.

9. NO EMPLOYEE BENEFITS

9.1. Principal does not promise Contractor participation in an employee benefit plan unless a governing plan document, signed writing, or applicable law provides otherwise.

9.2. If an agency or court determines employee status under a law within or outside the Act's scope, the Parties shall comply. Nothing in this Agreement waives wages, taxes, contributions, insurance, benefits, remedies, or duties that cannot lawfully be waived or shifted.

10. INSURANCE

10.1. Contractor shall maintain at Contractor's expense:

☐ General liability insurance: $[________________________________] minimum
☐ Professional liability insurance: $[________________________________] minimum
☐ Workers' compensation insurance (if Contractor has employees)
☐ Commercial auto insurance (if applicable)

10.2. Certificates of insurance upon request.

11. INTELLECTUAL PROPERTY

11.1. Background Materials. Each Party retains materials developed independently of this Agreement and identified in Exhibit A as background materials.

11.2. Commissioned Works and Assignment. A specially ordered or commissioned work qualifies as a “work made for hire” under 17 U.S.C. § 101 only if it falls within a listed statutory category and the Parties expressly agree in a signed writing. To the extent a paid Deliverable qualifies, the Parties agree it is a work made for hire for Principal under 17 U.S.C. § 201(b). As a separate fallback, upon full payment Contractor assigns to Principal all transferable right, title, and interest in the Deliverable, excluding identified background and third-party materials. This signed Agreement and Exhibit A are intended to satisfy 17 U.S.C. § 204(a).

11.3. Background-Material License. Contractor grants Principal a [perpetual / term-limited], [worldwide], [royalty-free] license to identified background materials embedded in a paid Deliverable only as needed to use that Deliverable.

11.4. Visual Art and Third-Party Materials. No waiver under 17 U.S.C. § 106A is effective unless a signed writing expressly and specifically identifies the covered work and uses. Contractor shall identify third-party materials and license terms before delivery.

12. CONFIDENTIALITY

12.1. Definition. "Confidential Information" means all non-public information disclosed by Principal.

12.2. Obligations. Maintain strict confidence, no disclosure without consent, use solely for Services.

12.3. Exceptions. Publicly available, previously known, independently developed, or legally required.

12.4. Duration. Survives for [____] years. Information that remains a legally protectable trade secret remains subject to the confidentiality obligation while it retains that status.

13. NON-COMPETITION AND NON-SOLICITATION

13.1. No General Post-Termination Restraint. This template contains no post-termination noncompetition, customer nonsolicitation, worker nonsolicitation, or no-hire covenant.

13.2. Separate Review. Any requested restraint must be separately reviewed and drafted by West Virginia counsel for the actual relationship, profession, consideration, protectable interest, duration, territory, and scope.

14. INDEMNIFICATION

14.1. Contractor shall indemnify, defend, and hold harmless Principal from third-party claims arising from: (a) Contractor's negligent or intentional performance; (b) Contractor's breach; (c) infringement by Deliverables; and (d) tax, wage, coverage, or classification claims concerning Contractor's own personnel, but only to the extent caused by Contractor's direction, reporting failure, coverage failure, or knowing material misrepresentation. Classification of Contractor itself and duties imposed directly on Principal by law are excluded.

14.2. Principal shall indemnify Contractor from Principal's negligence or misconduct.

15. DISPUTE RESOLUTION

15.1. Governing Law. Governed by West Virginia law.

15.2. Mediation. Parties shall first attempt mediation in [________________________________] County, West Virginia.

15.3. Arbitration / Litigation.

☐ Binding arbitration under AAA rules in [________________________________], West Virginia.
☐ Jurisdiction in [________________________________] County Circuit Court, West Virginia.

15.4. Attorneys' Fees. Prevailing party entitled to reasonable fees and costs.

16. WEST VIRGINIA-SPECIFIC NOTICES

16.1. Limited Scope — W. Va. Code § 21-5I-5. The Act's test applies only to classification questions under workers' compensation in Chapter 23, unemployment compensation in Chapter 21A, the Human Rights Act, and wage payment and collection. It does not decide agency or vicarious tort liability and does not apply to organizations or persons subject to W. Va. Code § 17-29-11.

16.2. Written Contract — § 21-5I-4(a)(1). Contractor must sign a written contract in substantial compliance with the statute that states Principal's intent and contains all five acknowledgments in Section 7.

16.3. Tax Filing or Business Entity — § 21-5I-4(a)(2). Select one accurate route:

☐ Contractor has filed, or this Agreement requires Contractor to file, the appropriate federal, state, and local income-tax return for a business or self-employment earnings from the work.

☐ Contractor provides Services through a business entity or through a sole proprietorship with a “doing business as” registration when state or local law requires it.

16.4. Actual Control — § 21-5I-4(a)(3). Contractor actually and directly controls the manner and means of accomplishing the work. Government-required compliance controls, protection of persons or property, franchise-brand protection, safety improvements, orientation, product or operating-system information, guidance, suggestions, and legally required training do not by themselves defeat this element within the statute's terms.

16.5. Three-of-Nine Route — § 21-5I-4(a)(4). Unless the direct-seller route in Section 16.6 applies, select at least three statements that are true in fact:

☐ Contractor controls personal time spent, subject to permitted final-completion, final-delivery, range-of-hours, or entertainment-time terms.

☐ Contractor controls work location, except where Services can only be performed at specific locations.

☐ Contractor is not required to work exclusively for Principal, subject to statutory law, license, and permit exceptions.

☐ Contractor may independently solicit purchasers of Contractor's services.

☐ Contractor may hire employees or contract with assistants, helpers, or substitutes for some or all work.

☐ Principal cannot require additional services without a new or modified contract.

☐ Contractor obtains a license or other permission from Principal to use Principal's workspace for the contracted work.

☐ An IRS employment audit of Principal did not reclassify Contractor or Contractor's worker category as employees.

☐ Contractor maintains and bears the costs of business licenses, insurance, certifications, or permits required for the Services.

16.6. Direct-Seller Alternative — § 21-5I-4(a)(5). ☐ Contractor satisfies the definition of a direct seller under 26 U.S.C. § 3508(b)(2). Counsel has verified this route before selection.

16.7. Fallback — § 21-5I-4(b). For the four covered programs, a worker who does not satisfy subsection (a) is classified under the test in IRS Revenue Ruling 87-41. Principal remains free to hire a worker who meets subsection (a) as an employee.

17. GENERAL PROVISIONS

17.1. Entire Agreement. Complete agreement.

17.2. Amendments. Written and signed by both Parties.

17.3. Severability. Invalid provisions severed.

17.4. Notices. Written to addresses above.

17.5. Assignment. Not assignable without consent.

17.6. Waiver. No waiver constitutes future waiver.

17.7. Counterparts. Executable in counterparts.

17.8. Electronic Signatures. Under W. Va. Code § 39A-1-7, a record or signature may not be denied legal effect solely because it is electronic, subject to the Act's scope and the Parties' agreement to transact electronically.

18. SIGNATURES

IN WITNESS WHEREOF, the Parties execute this Agreement as of the Effective Date.

COMPANY/PRINCIPAL:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

INDEPENDENT CONTRACTOR:

Signature: [________________________________]
Printed Name: [________________________________]
Title/DBA: [________________________________]
Date: [__/__/____]

EXHIBIT A — STATEMENT OF WORK

[________________________________]

Sources and References:

• W. Va. Code Article 21-5I — Employment Law Worker Classification Act
• W. Va. Code § 21-5I-4 — classification criteria and Revenue Ruling 87-41 fallback
• W. Va. Code § 21-5I-5 — limitations on the Act's scope
• W. Va. Code § 39A-1-7 — electronic records and signatures
• 26 U.S.C. § 3508(b)(2) — direct-seller definition
• 17 U.S.C. § 101 — work-made-for-hire definition
• 17 U.S.C. § 106A — rights of certain visual artists
• 17 U.S.C. § 201 — copyright ownership and works made for hire
• 17 U.S.C. § 204 — signed-writing requirement for copyright transfers

The Act's classification result is program-specific; this Agreement does not establish status by label or decide agency, tort, tax, benefit-plan, or other questions outside the Act's stated scope.