INDEPENDENT CONTRACTOR AGREEMENT
This Agreement ("Agreement") is made and entered into by and between you, the undersigned contractor ("CONTRACTOR"), an independent contractor engaged in the business of performing the delivery services contemplated by this Agreement, and Buying.com, Inc. ("BUYING.COM" or "COMPANY"). CONTRACTOR may enter this Agreement either as an individual or as a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any Contracted Services.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION XI, AS IT REQUIRES THE PARTIES (UNLESS YOU OPT OUT OF ARBITRATION AS PROVIDED BELOW) TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION XI, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
BUYING.COM is a company that provides an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers ("BUYING.COM platform" or "platform"). Buying.com software permits registered users to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, BUYING.COM software notifies contractors that a delivery opportunity is available and the BUYING.COM software facilitates completion of the delivery. BUYING.COM is not a restaurant, food delivery service, or food preparation business.
CONTRACTOR is an independent provider of delivery services, authorized to conduct the delivery services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates. CONTRACTOR possesses all equipment and personnel necessary to perform the delivery services contemplated by this Agreement in accordance with applicable laws. CONTRACTOR desires to enter into this Agreement for the right to receive delivery opportunities made available through BUYING.COM platform. CONTRACTOR understands and expressly agrees that he/she is not an employee of BUYING.COM or any restaurant, other business or consumer and that he/she is providing delivery services on behalf of him/herself and his/her business, not on behalf of BUYING.COM. CONTRACTOR understands (i) he/she is free to select those times he/she wishes to be available on the platform to receive delivery opportunities; (ii) he/she is free to accept or reject the opportunities transmitted through the BUYING.COM platform by consumers, and can make such decisions to maximize his/her opportunity to profit; and (iii) he/she has the sole right to control the manner in which deliveries are performed and the means by which those deliveries are completed.
In consideration of the above, as well as the mutual promises described herein, BUYING.COM and CONTRACTOR (collectively "the parties") agree as follows:
I. PURPOSE OF THE AGREEMENT
- This Agreement governs the relationship between BUYING.COM and CONTRACTOR, and establishes the parties' respective rights and obligations. In exchange for the promises contained in this Agreement, CONTRACTOR shall have the right and obligation to perform the "Contracted Services" as defined herein. However, nothing in this Agreement requires CONTRACTOR to perform any particular volume of Contracted Services during the term of this Agreement, and nothing in this Agreement shall guarantee CONTRACTOR any particular volume of business for any particular time period.
- CONTRACTOR shall have no obligation to accept or perform any particular "Delivery Opportunity" (as that term is defined herein) offered by BUYING.COM. However, once a Delivery Opportunity is accepted, CONTRACTOR shall be contractually bound to complete the Contracted Services in accordance with all consumer specifications and the terms laid out in this Agreement,
II. CONTRACTOR'S OPERATIONS
- CONTRACTOR represents that he/she operates an independently established enterprise that provides delivery services, and that he/she satisfies all legal requirements necessary to perform the services contemplated by this Agreement. As an independent contractor/enterprise, CONTRACTOR shall be solely responsible for determining how to operate his/her business and how to perform the Contracted Services.
- CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. BUYING.COM shall have no right to, and shall not, control the manner, method or means CONTRACTOR uses to perform the Contracted Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of pickup, delivery, and route selection.
- As an independent business enterprise, CONTRACTOR retains the right to perform services (whether delivery services or other services) for others and to hold him/herself out to the general public as a separately established business. The parties recognize that they are or may be engaged in similar arrangements with others and nothing in this Agreement shall prevent CONTRACTOR or BUYING.COM from doing business with others. BUYING.COM does not have the right to restrict CONTRACTOR from performing services for other businesses, customers or consumers at any time, even if such business directly competes with BUYING.COM, and even during the time CONTRACTOR is logged into the BUYING.COM platform. CONTRACTOR’s right to compete with BUYING.COM, or perform services for business that compete with BUYING.COM, will survive even after termination of this Agreement.
- CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from BUYING.COM as a condition of doing business with BUYING.COM or entering into this Agreement.
- CONTRACTOR agrees to immediately notify BUYING.COM in writing at www.Buying.com.com/help/ if CONTRACTOR's right to control the manner or method he/she uses to perform services differs from the terms contemplated in this Section.
III. CONTRACTED SERVICES
- From time to time, the BUYING.COM platform will notify CONTRACTOR of the opportunity to complete deliveries from restaurants or other businesses to consumers in accordance with orders placed by consumers through the BUYING.COM platform (each of these is referred to as a "Delivery Opportunity"). For each Delivery Opportunity accepted by CONTRACTOR ("Contracted Service"), CONTRACTOR agrees to retrieve the orders from restaurants or other businesses, ensure the order was accurately filled, and deliver the order to consumers in a safe and timely fashion. CONTRACTOR understands and agrees that the parameters of each Contracted Service are established by the consumer, not BUYING.COM, and represent the end result desired, not the means by which CONTRACTOR is to accomplish the result. CONTRACTOR has the right to cancel, from time to time, a Contracted Service when, in the exercise of CONTRACTOR's reasonable discretion and business judgment, it is appropriate to do so.
- CONTRACTOR acknowledges that BUYING.COM has discretion as to which, if any, Delivery Opportunity to offer, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Opportunity.
- CONTRACTOR acknowledges that CONTRACTOR is engaged in CONTRACTOR’s own business, separate and apart from BUYING.COM business, which is to provide an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers.
- CONTRACTOR authorizes BUYING.COM, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or restaurant or other business to assist CONTRACTOR, to the extent permitted by CONTRACTOR, in facilitating deliveries. However, under no circumstances shall BUYING.COM be authorized to control the manner or means by which CONTRACTOR performs delivery services. This includes, but is not limited to, the following:
- BUYING.COM does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
- CONTRACTOR does not have a supervisor or any individual at BUYING.COM to whom they report.
- CONTRACTOR is not required to use any signage or other designation of BUYING.COM on his or her vehicle or person at any point in their use of the platform to perform the Contracted Services.
- BUYING.COM has no control over CONTRACTOR’s personal appearance
- CONTRACTOR does not receive regular performance evaluations by BUYING.COM
- CONTRACTOR may use whatever payment method he/she chooses to purchase items to be delivered to consumers, including, but not limited to CONTRACTOR's personal credit or debit card, cash or a prepaid card. CONTRACTOR may use, for CONTRACTOR's convenience, the prepaid card solely for purchasing items to be delivered to consumers. If CONTRACTOR chooses to use his/her personal credit or debit card or cash, CONTRACTOR shall invoice BUYING.COM on a weekly basis and BUYING.COM agrees to pay all invoices within 10 days of receipt.
- In the event CONTRACTOR fails to fully perform any Contracted Service (a "Service Failure") due to CONTRACTOR's action or omission, CONTRACTOR shall forfeit all or part of the agreed upon fee for that service. If CONTRACTOR disputes responsibility for a Service Failure, the dispute shall be resolved pursuant to the "Payment Disputes" provision below.
- CONTRACTOR agrees to immediately notify BUYING.COM in writing by submitting a Support inquiry through https://help.Buying.com.com/consumers/s/contactsupport if CONTRACTOR's services or scope of work differ in any way from what is contemplated in this Section.
IV. RELATIONSHIP OF PARTIES
- The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. The parties are not employees, agents, joint venturers, or partners of each other for any purpose. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this Agreement.
- BUYING.COM shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by CONTRACTOR. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in BUYING.COM have been inserted solely for the safety of consumers and other CONTRACTORS using the BUYING.COM platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
- BUYING.COM shall report all payments made to CONTRACTOR on a calendar year basis using an appropriate IRS Form 1099, if the volume of payments to CONTRACTOR qualify. CONTRACTOR agrees to report all such payments and any cash gratuities to the appropriate federal, state and local taxing authorities.
V. PAYMENT FOR SERVICES
- Unless notified otherwise by BUYING.COM in writing or except as provided herein, CONTRACTOR will receive payment per accurate Contracted Service completed in an amount consistent with the publicly provided pay model. From time to time, BUYING.COM may offer opportunities for CONTRACTOR to earn more money for performing Contracted Services at specified times or in specified locations. Nothing prevents the parties from negotiating a different rate of pay, and CONTRACTOR is free to accept or deny any such opportunities to earn different rates of pay.
- Buying.com online credit card software may permit consumers to add a gratuity to be paid to CONTRACTOR, and consumers can also pay a gratuity to CONTRACTOR in cash. CONTRACTOR shall retain 100% of any gratuity paid by the consumer, whether by cash or credit card. BUYING.COM acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR.
- BUYING.COM will process payments made by consumers and transmit to CONTRACTOR. Payments for all deliveries completed in a given week will be transferred via direct deposit on no less than a weekly basis unless it notifies CONTRACTOR otherwise in writing.
- Notwithstanding the terms of Section V(1) – (3), fulfillment orders placed directly with merchants rather than through the App or Buying.com.com ("Fulfillment Orders") may be subject to a different payment model. The current pay schedules offered for Fulfillment Orders in the relevant markets are as follows. Pay Structure $5.00 per delivery plus extra tips – Guarantee of $100.00 per day for all new territories for the first 90 days till area is completed. Nothing prevents the parties from negotiating a different rate of pay for a Fulfillment Order, and the CONTRACTOR is free to accept or reject Fulfillment Order opportunities. As with all Delivery Opportunities, CONTRACTOR shall retain 100% of any gratuity paid by the consumer for a Fulfillment Order. Buying.com software may not always include an option to add gratuity for Fulfillment Orders; however, consumers can pay a gratuity to CONTRACTOR in cash.
- From time to time, BUYING.COM may offer various Blaster promotions or referral programs. CONTRACTOR agrees that he or she will not manipulate or abuse the referral programs or Blaster promotions by, among other things: (a) tampering with the location feature on his or her mobile phone; (b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or, (c) creating multiple Blaster or consumer accounts. CONTRACTOR understands that engaging in this type of manipulation or abuse constitutes a material breach of this Agreement and may lead to deactivation of his or her account.
VI. PAYMENT DISPUTES
- CONTRACTOR's Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in Buying.com reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumer, restaurant or other business, CONTRACTOR, and any other party with information relevant to the dispute. BUYING.COM shall make the initial determination as to whether a Service Failure was the result of CONTRACTOR's action/omission. CONTRACTOR shall have the right to challenge Buying.com determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify BUYING.COM in writing at www.Buying.com.com/help/ of the challenge and provide BUYING.COM the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of his/her challenge.
- Buying.com Failure: In the event BUYING.COM fails to remit payment in a timely or accurate manner, CONTRACTOR shall have the right to seek proper payment by any legal means contemplated by this Agreement and, should CONTRACTOR prevail, shall be entitled to recover reasonable costs incurred in pursuing proper payment, provided, however, CONTRACTOR shall first inform BUYING.COM in writing at www.Buying.com.com/help/ of the failure and provide a reasonable opportunity to cure it.
EQUIPMENT AND EXPENSES
- CONTRACTOR represents that he/she has or can lawfully acquire all equipment, including vehicles and food hot bags ("Equipment") necessary for performing contracted services, and CONTRACTOR is solely responsible for ensuring that the vehicle used conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability.
- CONTRACTOR agrees that he/she is responsible for all costs and expenses arising from CONTRACTOR's performance of Contracted Services, including, but not limited to, costs related to CONTRACTOR's Personnel (defined below) and Equipment. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to its Equipment.
- In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the BUYING.COM platform, pass a background check administered by a third-party vendor, subject to CONTRACTOR's lawful consent. CONTRACTOR is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this Agreement, hire or engage others (as employees or subcontractors of CONTRACTOR) to perform all or some of the Contracted Services, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, the background check requirements that CONTRACTOR must meet in order to perform Contracted Services. To the extent CONTRACTOR furnishes his/her own employees or subcontractors (collectively "Personnel"), CONTRACTOR shall be solely responsible for the direction and control of the Personnel it uses to perform all Contracted Services.
- CONTRACTOR assumes full and sole responsibility for the payment of all amounts due to his/her Personnel for work performed in relation to this Agreement, including all wages, benefits and expenses, if any, and for all required state and federal income tax withholdings, unemployment insurance contributions, and social security taxes as to CONTRACTOR and all Personnel employed by CONTRACTOR in the performance of Contracted Services under this Agreement. BUYING.COM shall have no responsibility for any wages, benefits, expenses, or other payments due CONTRACTOR's Personnel, nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to CONTRACTOR or his/her Personnel. Neither CONTRACTOR nor his/her Personnel shall receive any wages, including vacation pay or holiday pay, from BUYING.COM, nor shall they participate in or receive any other benefits, if any, available to Buying.com employees.
- Unless mandated by law, BUYING.COM shall have no authority to withhold state or federal income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state or federal tax on behalf of CONTRACTOR or his/her Personnel.
- CONTRACTOR and his/her Personnel shall not be required to wear a uniform or other clothing of any type bearing Buying.com name or logo.
- If CONTRACTOR uses the services of any Personnel to perform the Contracted Services, CONTRACTOR's Personnel must satisfy and comply with all of the terms of this Agreement, which CONTRACTOR must make enforceable by written agreement between CONTRACTOR and such Personnel. A copy of such written agreement must be provided to BUYING.COM at least 7 days in advance of such Personnel performing the Contracted Services. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR's compliance with the terms of this Agreement.