DELIVERY WITH GOMO
INDEPENDENT CONTRACTOR AGREEMENT
Updated: April 28th, 2020
This agreement (the “Agreement”) is made and entered into as of the date and time recorded by Gomo, operated by Hailify, Inc., (the “Company” or “Gomo”) (the “Effective Date”), that the indicated User of the Gomo Application (the “Contractor”) tapped on the “Agree and Continue” button at the bottom of screen in the Gomo application displaying this Agreement, between Gomo and the Contractor, as indicated by the Contractor and/or Gomo, in Gomo’s records, at time of signup for the Delivery with Gomo service (collectively, the “Parties”).
WHEREAS, the Company requests the Contractor to perform services for it and may request the Contractor to perform other services in the future,
WHEREAS, the Company and the Contractor desire to enter into an agreement, which will define respective rights and duties as to all services to be performed,
WHEREAS, the Contractor affirms that he or she understands all of the provisions contained in this Agreement, and in the case that he or she requires clarification as to one or more of the provisions contained herein, he or she has requested clarification or otherwise sought legal guidance,
NOW, THEREFORE, in consideration of the mutual promises and covenants contained within this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereto agree as follows:
1. Services. Beginning on the Effective Date, and remaining in effect for the duration of this Agreement, the Contractor shall provide the Company with the services Statement of Work attached hereto as Exhibit A (the “SOW”).
2. Contractor Representations and Warranties. Beginning on the Effective Date, and remaining in effect for the duration of this Agreement, the Contractor makes the following representations and warranties:
a. That he or she is fully authorized and empowered to enter into this Agreement, and that his or her performance of the obligations under this Agreement will not violate any agreement between the Contractor and any other person, company or organization or any law or governmental regulation.
b. That he or she is more than eighteen (18) years of age and not otherwise incapacitated at the time of the Agreement.
c. That he or she will bear all expenses incurred in the performance of this Agreement, including but not limited to transportation, office supplies, rent and related costs, food and beverages, and fees for databases or other services registered in the Contractor’s name.
3. Company Representations and Warranties. Beginning on the Effective Date, and remaining in effect for the duration of this Agreement, the Company makes the following representations and warranties:
a. That it is fully authorized and empowered to enter into this Agreement, and that its performance of the obligations under this Agreement will not violate any agreement between the Company and any other person, company, or organization or any law or governmental regulation.
b. That it is in full compliance with any and all laws and/or statutes applicable to the services described hereunder.
4. Compensation. The work performed by the Contractor shall be performed in accordance with the terms set forth on the SOW.
5. Duration, Scope and Severability.
a. This Agreement shall take effect on the Effective Date, and shall remain in full force and effect indefinitely, or until terminated pursuant to Section 5(b) of this Agreement.
b. Either party may terminate this Agreement for any reason upon immediate notice to the other party.
c. This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.
d. This Agreement may be amended only by written agreement duly executed by an authorized representative of each party.
e. If any provision or provisions of this Agreement shall be held unenforceable for any reason, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent by the parties set forth therein.
f. No modifications to this Agreement shall be binding upon the Company without the express, written consent of the Company.
g. The rights and obligations contained in Sections 6 (“Independent Contractor Status”), 7 (“Confidential Information”), 8 (“Liability”), and 10 (“Indemnification”) of this Agreement will survive any termination or expiration of this Agreement.
h. The Company reserves the right to update this Agreement at any time.
6. Independent Contractor Status.
a. The Contractor is an independent contractor of the Company. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
b. The Contractor shall have no authority to act as agent for, or on behalf of, the Company, or to represent the Company, or bind the Company in any manner.
c. The Contractor shall not be entitled to worker's compensation, retirement, insurance, unemployment benefits, or any other benefits typically afforded to employees of a company or firm.
d. The Company shall not be responsible for federal, state and local taxes derived from the Contractor's net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers' compensation, disability benefits or other legal requirements applicable to the Contractor. Contractor is solely responsible for, and will file on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or municipal tax authority with respect to the performance of services and receipt of fees under this Agreement. Company will regularly report amounts paid to Contractor to any applicable federal, state, and municipal tax authorities.
7. Confidential Information.
a. For the purposes of this agreement, “Confidential Information” shall include, but shall not be limited to, any and all technical and non-technical information and proprietary information, including without limitation, writings, diagrams, programs, procedures, techniques, sketches, drawings, models, intellectual property including all trademarks and copyrighted material, apparatus, equipment, algorithms, software programs and software source code documents, related to the current, future and proposed products and services of Company, its suppliers and customers, Company’s information concerning research, experimental work, development, design details and specifications, engineering information, financial information, procurement requirements, purchasing and manufacturing information, customer lists, business forecasts, sales and merchandising and marketing plans and information. Contractor understands that Company has expended great effort protecting its Confidential Information especially with regards to protection of its client list, proprietary coaching and marketing materials, and any confidential information about its clients.
b. The Contractor will use Company’s Confidential Information solely to perform services for the benefit of the Company. Contractor agrees that it shall treat all Confidential Information of Company with the same degree of care as it accords to its own Confidential Information, and Company and Contractor represent that they exercise reasonable care to protect their own Confidential Information. Contractor agrees not to communicate any information to Company in violation of the Proprietary rights of any third party. Contractor will immediately give notice to Company of any unauthorized use or disclosure of Confidential Information. Contractor agrees to assist Company in remedying any such unauthorized use or disclosure of Confidential Information.
c. The Contractor and his or her employees shall not, during the time of rendering services to the Company or thereafter, disclose to anyone other than authorized employees of the Company (or persons designated by such duly authorized employees of the Company) or use for the benefit of the Contractor and his or her employees or for any entity other than the Company, any information of a confidential nature, including but not limited to, information relating to: any such materials or intellectual property; any of the Company projects or programs; the technical, commercial or any other affairs of the Company; or any confidential information which the Company has received from a client or other third party.
d. Notwithstanding the foregoing, the Contractor shall not be liable for disclosing Confidential Information if the Contractor can show by a preponderance of the evidence that:
i. The information was in the public domain at or subsequent to the time it was communicated to Contractor by the disclosing party through no fault of Contractor;
ii. The information was rightfully in Contractor’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Contractor by the disclosing party; or
iii. The information was developed by employees or agents of Contractor independently of and without reference to any information communicated to Contractor by the disclosing party.
iv. If contractor is required to disclose the Confidential Information in response to a valid order by a court or other government body, or as otherwise required by law or as necessary to establish the rights of either party under this Agreement, Contractor agrees to provide Company with prompt written notice so as to provide Company with a reasonable opportunity to protect such Confidential Information.
v. Contractor hereby acknowledges that a breach of this subsection (“Confidential Information”) would cause Company to suffer a loss which
could not be adequately compensated for by damages and consents that in addition to any other remedy or relief available to it, Company may enforce the performance of this subsection by injunction or specific performance upon application to a court of competent jurisdiction without proof of actual
damages to Company and notwithstanding that damages may be readily quantifiable and Contractor covenants that it will not plead sufficiency of
damages as a defense to any proceeding for such injunctive relief brought by Company.
8. Liability.
a. The Company shall not be responsible for any costs incurred by the Contractor, including, without limitation, any and all fees and expenses.
b. The Company makes no guarantees regarding the physical and/or mental fitness of any Client. The Contractor shall perform the services set out in this Agreement at his or her own risk.
c. Gomo reserves the right to bar the Contractor from being able to deliver good(s) through the Gomo platform at any time.
d. The Contractor agrees to perform and undertake any and all indicated tasks and responsibilities as designated by Gomo, honestly and to the fullest of their ability.
e. Contractor’s Automobile Insurance and Registration Requirements:
i. The Contractor understands, agrees, and guarantees that they, at all times, carry their own personal, in-effect, (non-expired) Auto Insurance policy and Automobile Registration for the automobile that they will be using to deliver good(s) as defined by the Company. The Company does not cover any costs, damages, or harm incurred by the Contractor or caused by the Contractor to any other entity or organization, in any way, in whole, throughout the universe, including, without limitation, any and all fees and expenses when not on an “Active Trip,” as defined by The Company. An “Active Trip” is defined by the time from picking up a designated good(s) as defined by The Company to the dropoff of said good(s) as defined by the company. The Contractor accepts to cover any and all fees and expenses incurred in such situations. The Contractor agrees that if Contractor is found, at any time, to be delivering good(s) on behalf of Gomo with an automobile that does not have active personal, in-effect, (non-expired) Auto Insurance policy and Automobile Registration, the Contractor is in direct violation with this Agreement and Terms set forth by Gomo and:
1. Gomo may bar the Contractor from being able to deliver good(s) through the Gomo platform.
2. If an accident or incident occurs, that results in any expenses or harm to the Contractor or caused by the Contractor to any other entity or organization, Gomo will not be liable in any way, in whole, in any-part, throughout the universe, and will not cover any costs associated with damages, or harm incurred by the Contractor , including, without limitation, any and all fees and expenses.
ii. Only during an Active Trip, the Contractor is covered under Gomo’s HNOA insurance policy, please contact support@drivegomo.com for more information of may be or isn’t covered. If the Contractor is at any time found to be in violation of this agreement, Gomo’s Terms of Service and/or Privacy Policy, the Contractor forfeits any right to coverage under Gomo’s HNOA policy and the Contractor absolves Gomo of any responsibility or liability in any way, in whole, and throughout the universe, of any costs, expenses, or harm incurred by the Contractor or caused by the Contractor to any other entity or organization. The Contractor Agrees to the Company reserving the right to change its HNOA insurance policy at any time, in-part or in whole, without any notice to the Contractor. The Contractor agrees to the Company reserving the right to designate, at any time, what is and isn’t covered by Gomo’s insurance coverage, if any claim is filed by the Contractor.
iii. The Contractor may be asked to verify the Age of the Customer at time of drop off of good(s) as indicated by Gomo. The Contractor agrees to be honest at the time of drop off and verify a customer’s age honestly. If the Contractor is found to be lying and the customer is not of the age the Contractor designates (eg. Customer is under 21 years old, and Contractor verifies that Customer is greater that 21 years old), the Contractor agrees to be lying, and is in direct violation of this agreement and Gomo’s Terms of Service. Gomo is not liable for the Contractor’s actions, and Gomo is not liable in any way for any and all resulting things including but not limited to costs, harm, litigation, damages, expenses, and more; the Contractor agrees to any and all liability in whole, throughout the universe to bear any and all such resulting things including but not limited to costs, harm, litigation, damages, expenses, and more as the Contractor agrees that they are in violation of this agreement and Gomo’s Terms of Service. If the Contractor is found to be lying in any way that results in the misplacement or disappearance of the good(s) (such as but not limited to the Contractor saying the Good(s) have been delivered but they have not been delivered as confirmed by the customer, delivery client, and/or Gomo) being delivered by the Contractor, the Contractor agrees to be responsible for the costs of the Good(s), in whole or in part, that they are transporting, as designated by the Company, as decided by the Company.
f. Background Check:
i. The Contractor understands that Gomo thoroughly vets all of its Contractors, regardless of their eligibility on other driver platforms, through a background check in partnership with GoodHire, Inc. In order to start delivering and working for Gomo, you must pass a background check conducted, in whole, by GoodHire, Inc. for Gomo. The Contractor will also receive subsequent documentation in relation to undergoing a background check including: Your (The Contractor’s) Rights, relevant Disclosures, and Acknowledgements and Authorizations. This documentation will contain all information about the Contractor’s background check and how to contact GoodHire. Inc. about all aspects regarding background check. The Contractor understands and agrees that Gomo, takes no part, in any or all parts of, running this background check, but does decide the Contractor eligible to work for GoodHire, Inc. or not, based on the results of the background check. If Gomo declines the Contractor eligibility based on the background check, the Contractor can contact Gomo, at support@drivegomo.com for any further clarification.
g. EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.
9. Disclaimer of Warranty. THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. EACH PARTY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10. Indemnification.
a. The Contractor agrees to indemnify and hold harmless the Company, its affiliates, and its respective officers, directors, agents and employees from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of, or relating to, the Contractor’s services under this Agreement. This provision shall survive the duration of this Agreement.
b. The Contractor agrees to defend against any and all claims, demands, causes of action, lawsuits, and/or judgments arising out of, or relating to, the Contractor’s services under this Agreement, unless expressly stated otherwise by the Company, in writing.
11. Successors and Assigns. Contractor may not assign this Agreement or subcontract or otherwise delegate its obligations under this Agreement without Company’s prior written consent. Subject to successors and assigns, and will be binding on Contractor’s assignees.
12. Governing Law and Jurisdiction.
a. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either party arising out of this Agreement shall only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in the State of New York. EACH PARTY HEREBY EXPRESSLY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN THE STATE OF NEW YORK.
b. In the event of litigation relating to the subject matter of this Agreement, the non-prevailing party shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom.
13. Non-Disparagement.
a. The Contractor agrees not to intentionally make, or intentionally cause any other party to make, any public statement that is intended to criticize or disparage the Company, any of its affiliates, or any of their respective directors, officers, or managers.
b. In the event that a dispute arises relating to or stemming from this Agreement,
Contractor agrees that it will not announce or publicly disseminate any information with respect to the dispute and/or Company in any manner. Notwithstanding the foregoing, the Contractor may share such information with its legal advisors and any of its employees or affiliates who have a reasonable need to know such information in order to resolve the dispute, provided that such parties will be bound by an agreement containing provisions substantially similar to the provisions in this Section 14.
c. Contractor hereby acknowledges that a breach of this Section 14 (“Non-Disparagement”) would cause Company to suffer a loss which could not be adequately
compensated for by damages and consents that in addition to any other remedy or
relief available to it, Company may enforce the performance of this Section 14
by injunction or specific performance upon application to a court of competent
jurisdiction without proof of actual damages to Company and notwithstanding
that damages may be readily quantifiable and Contractor covenants that it will not
plead sufficiency of damages as a defense to any proceeding for such injunctive
relief brought by Company.
14. No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
15. Return of Company’s Property All materials (including, without limitation, content articles, documents and materials) furnished to Contractor by Company, whether delivered to Contractor by Company or made by Contractor in the performance of services under this Agreement (collectively, the “Company Property”) are the sole and exclusive property of Company and/or its suppliers or customers. Contractor agrees to promptly deliver the original and any copies of the Company Property to Company at any time upon Company’s request. Upon termination of this Agreement by either party for any reason, Contractor agrees to promptly deliver to Company or destroy, at Company’s option, the original and any copies of the Company Property.
16. Notices. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be sufficiently given or made by delivery or by post or by telecopy or similar facsimile transaction (with confirmation of accurate or complete transmission obtained by sender) or by other electronic means of communication to the respective Parties. Any notice so given shall be deemed conclusively to have been given and received when so personally delivered or posted or so telecopied or transmitted, except that any notice delivered after 5:00 p.m. on the date prior to a non-business day shall be deemed to have been received at 9:00 a.m. on the first business day following delivery. Any Party may change its address, facsimile transmission number, or other contact information by notice to the other of them in the manner set out above. Notices to each party shall be sent to the address and/or email address set forth on the signature page hereto.
17. Execution of Agreement. This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and shall be effective as of the formal date hereof. This Agreement may be executed and transmitted via e-mail and/or facsimile transmission and in such event shall be effective and binding on the parties hereto and their successors and assigns as if originally executed.
18. Headings. Paragraph headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have each executed this agreement as of the Effective Date.
EXHIBIT A
STATEMENT OF WORK
Services
Contractor will provide the following services to the Company:
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Delivery of packages and/or good(s) in accordance with Company’s specifications.
Contractor may be banned from providing further Services to Company if Contractor does not make deliveries in accordance with the specifications provided by Company.
Payment
Payment will be made to Contractor as follows:
Per package delivery at a set rate, as defined by the Company, paid on a weekly basis except where otherwise specified by the Company. Gomo charges a service fee of 10% at the time of payout to drivers for the deliveries, and the Contractor understands that this service fee is used to continue to maintain the operations of the Gomo platform and agrees to the service fee. If the service fee is changed at any time, the Contractor will be notified by Gomo through one of the following methods of communication: in-app notification, phone call, text message, and/or email.
