INDEPENDENT CONTRACTOR SERVICES AGREEMENT
Updated: 2019-12-04 21:13:02 UTC
Party Host Helpers is an internet application (“Party Host Helpers Platform” or the “Application”) owned and operated by Party Host Helpers LLC (Party Host Helpers,” “we,” or “us”). Party Host Helpers provides a service (the “Service”) that allows its customers (“Customers”) to access Party Host Helpers’s network of contractors (“candidate” or “you” or “Contractor”) to identify local providers to meet intermittent needs for services. The Contractors have access to the Application to receive and review requests for services from Customers and to determine their interest in and availability to respond to such requests.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE COVERED DISPUTES, RATHER THAN JUDGE OR JURY TRIALS.
Acknowledgment and Acceptance of Independent Contractor Services Agreement
Notwithstanding the previous paragraph or any contrary language in this Agreement, the Arbitration Agreement in Section 9 of this Agreement may not be modified or terminated absent a writing signed (electronically or otherwise) by the Company and You.
You acknowledge that you are able to electronically receive, download, and print this Agreement, any other terms, notices, forms (including IRS Form 1099-MISC) and any other documents required by, or incorporated into, this Agreement by reference, any amendments to this Agreement, or any other items required by regulation or law. Further, you agree to keep the contact information in your Account current at all times including, but not limited to, your email address, physical address, and phone number.
Use of the Application is permitted only by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, you must be at least 18 years old or the age of legal majority in the jurisdiction in which you work and legally authorized to work in the United States to become a Contractor. If you do not meet these criteria, you may not register to become a Contractor.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Services” means the services described in a Party Host Helpers Request for services by a Contractor to a Party Host Helpers Customer.
1.2 “Party Host Helpers Request” means a notice provided, through the Application, to one or more Contractors, which includes a description of the services to be provided by the Contractors, the time by which the Party Host Helpers Request must be completed (the “Party Host Helpers Completion Date”) and the fee associated with the Party Host Helpers Request (the “Payment”). An open request is a request for services that has not yet been accepted by a Contractor (“Open Request”). Contractors can use the Application to review Open Requests and to indicate their availability for Open Requests. Once a Contractor has accepted a Party Host Helpers Request pursuant to Section 2, the Party Host Helpers Request will become a “Party Host Helpers Engagement”. (Contractors are under no obligation to accept any Open Request).
1.3 “Party Host Helpers Platform” or “Bot” or “Application” means the software application used by Party Host Helpers in connection with the Services.
2.1 Background Checks and Privacy Information. As part of your initial registration with Party Host Helpers, you agree to immediately execute a written consent for a background check. Subject to a satisfactory background check and agreement to the terms herein, you will be eligible to use the Party Host Helpers Platform to view and accept Party Host Helpers Requests. You further agree to complete any ongoing background checks as may be required by Party Host Helpers or a Customer. Failure to complete the initial or ongoing background check processes may result in inability to accept Party Host Helpers Requests and/or removal from the Party Host Helpers Platform. Please note that in order to run your background check, Party Host Helpers will ask for your social security number during the onboarding process. We may also share your social security number with our payment vendor, Stripe, in order to verify your payment account to ensure the safety of your account. To better protect and secure the property of our employees, contractors, Customers and guests, we reserve the right to inspect any property, whether locked or unlocked, including packages, vehicles, handbags, briefcases, lunchboxes or any other possessions or articles that you bring to or from the site where you provide the Services at any time when we determine that reasonable grounds exist. If you fail to cooperate or comply, your engagement by us may be immediately terminated.
2.2 Best Efforts. By registering to become a Contractor and accepting an Open Request, you agree to use your best efforts to perform the Party Host Helpers Engagement such that the Services meet the requirements and specifications of the Customer, for whom the Open Request was created. Once a Contractor has accepted a Party Host Helpers Request, the Open Request will no longer be available for performance by other Contractors who received the Open Request. By accepting an Open Request, you are entering into a binding legal agreement to provide the Services for the Payment specified in the Open Request. Do not accept an Open Request unless you are sure that: (1) you understand what you are being asked to deliver; (2) you can perform the Services identified in the Open Request; (3) you can deliver the Services in the requested time period; and if required, you can get to and from the Customer’s location. Failure to timely deliver the Services consistent with the Customer’s requirements and specifications will constitute a breach, resulting in non-payment. Further, in the event of such a breach, you will be responsible for payment of any additional fees (e.g., rush fees) or costs incurred as a result of your failure to timely complete the Open Request in accordance with the Customer requirements.
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Party Host Helpers and you or between the Customer and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Party Host Helpers that is inconsistent with your being an independent contractor (and not an employee) of Party Host Helpers . You are not the agent of Party Host Helpers or the Customer and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of Party Host Helpers or the Customer.
As an independent contractor, you are solely responsible for determining which Open Requests you will choose to accept and how, when and where you will provide the Services under this Agreement. Party Host Helpers will provide no supervision and will have no control over the manner in which you perform the Services. Further, you must provide all equipment, tools, material and labor that may be necessary to perform the Services. You acknowledge and understand that Party Host Helpers will not provide you with any equipment, tools, material or labor to perform the Services and will only (subject to the terms and condition stated herein) provide you with access to the Application for purposes of enabling you to access and accept (if you so choose) Party Host Helpers Requests and engage in incidental, related activities (if you so choose).
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) you from engaging in other business activities or providing your services to others that are separate and distinct from any business activities or services that you conduct through the Application.
Without limiting the generality of the foregoing:
3.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that Party Host Helpers , its parents, subsidiaries, affiliates or other related entities may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, Party Host Helpers will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of Party Host Helpers , or any affiliate of Party Host Helpers (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either the Customer and its parents, subsidiaries, affiliates or related entities or by Party Host Helpers , its parents, subsidiaries, affiliates or other related entities.
3.2 Taxes. You are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from the payment of Payments to you under this Agreement, and you agree to do so in a timely manner. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. To the extent required by the IRS, Party Host Helpers will report the Payments paid to you for services rendered as part of Party Host Helpers engagements by filing Form 1099-MISC with IRS. You consent to electronic delivery of Form 1099-MISC, if such form is required or filed. You agree to indemnify Party Host Helpers for the cost of any tax liabilities incurred by Party Host Helpers as a result of your failure to pay all applicable taxes in a timely manner.
3.3 Third Party Payment Processing Services. Payment processing services for Contractors are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a Contractor on Contractor, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Party Host Helpers enabling payment processing services through Stripe, you agree to provide Party Host Helpers accurate and complete information about you and your business, and you authorize Party Host Helpers to share it and transaction information related to your use of the payment processing services provided by Stripe.
3.4 Work Relationship. During the period of your service to the Company and for a period of twenty-four (24) months thereafter, (the “Restricted Period”), you shall not directly or indirectly (i) induce or attempt to induce any employee, consultant or contractor of any member of the Company to leave the employ of Company or in any way interfere with the relationship between Company and any employee, consultant or contractor thereof, (ii) circumvent Company to work directly with any vendor, client, customer or consultant of Company, or (iii) induce or attempt to induce any client, customer, supplier, vendor distributor, franchisee, licensee or other business relation of Company who provided or received products or services from Company or yourself during the Restricted Period, not to do, or to cease doing, business with Company, or in any way interfere with the relationship between any such customer, supplier, distributor, franchisee, licensee or business relation and Company.
4.1 Use and Disclosure. From time to time, you may be given access to confidential information in the course of performing engagements that you receive through Party Host Helpers . During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Party Host Helpers ’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Party Host Helpers ’s or any Customer’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Customers) that Party Host Helpers and/or the Customer considers to be confidential or proprietary or which Party Host Helpers has a duty to treat as confidential.
4.2 Standard of Care. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care.
4.3 Exceptions. Your obligations under Sections 4.1 and 4.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to Party Host Helpers ’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by Party Host Helpers , or is required by law or court order, provided that you immediately notify Party Host Helpers in writing of such required disclosure and cooperate with Party Host Helpers , at Party Host Helpers ’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
4.4 Removal; Return. Upon Party Host Helpers ’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to Party Host Helpers or, if so directed by Party Host Helpers , destroy all Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to Party Host Helpers in writing that you have fully complied with these obligations.
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Party Host Helpers Engagement, or that is otherwise inconsistent with this Agreement or any Party Host Helpers Engagement.
6.1 General. You represent, warrant, and covenant that:
(a) You have full right, power, and authority to enter into and perform under this Agreement without the consent of any third party (including any of your current or former employers);
(b) You will comply with all of the terms of this Agreement;
(c) You will fully conform to the Customer specifications, requirements, and other terms of any Party Host Helpers Request that you accept, and the Services delivered will be of a professional and workmanlike quality;
(d) You will comply with all applicable laws, rules and regulations in connection with performance of the Services under this Agreement;
(e) Any workers that you may employ, engage or otherwise retain to assist with performance of Services under this Agreement are properly classified and treated under any applicable laws and will assist with the performance of Services in a safe, lawful and workmanlike manner.
6.2. Indemnification. You will indemnify and hold harmless Party Host Helpers and its parents, affiliates, employees, vendors, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) arising from or relating to a breach by you of any representation, warranty, covenant, or obligation in this Agreement, or arising from or relating to any negligent or intentional act or omission committed by you, in connection with the performance of any Party Host Helpers engagement, which act or omission gives rise to any claim for damages against you, Party Host Helpers and/or its parents, affiliates, employees or agents. Party Host Helpers specifically denies any obligation to defend and/or indemnify you from and against any third party claims made against you arising from any negligent or intentional act or omission committed by you in connection with the performance of any Party Host Helpers engagement.
6.3 Insurance. You acknowledge that you are an independent contractor, not an employee of Party Host Helpers . As such, you acknowledge and understand that you are not covered by any insurance that may be provided by Party Host Helpers to its employees, including, without limitation, health insurance, workers compensation insurance, general liability insurance, and automobile liability insurance. Party Host Helpers requires that, as an independent contractor, you maintain workers’ compensation or occupational accident insurance for which you are solely and exclusively responsible for. Specifically, in the event that you are injured while working in the course and scope of an engagement for Party Host Helpers , you acknowledge and understand that you will not be covered by any workers compensation insurance coverage that Party Host Helpers may provide to its employees. Further, in the event that your actions cause an injury to a third party while you are working in the course and scope of performing a Party Host Helpers Engagement or the Services, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that Party Host Helpers may have, and that Party Host Helpers is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation. If you do not provide proof of workers’ compensation or occupational accident insurance, you will be charged a Trust and Safety Fee that will be paid towards Party Host Helpers ’s supplemental occupational accident insurance. By agreeing to these Terms, you are agreeing to pay this fee.
6.4 Warranty Disclaimer. The Application is provided “as is,” as available and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, title and non-infringement, arising by statute or otherwise in law or from a course of dealing or usage or trade). We disclaim all and make no representations or warranties, of any kind, either express or implied, as to the quality, identity or reliability of any third party, or as to the accuracy of the postings made on the Application by any third party. Some states and jurisdictions do not allow for all the foregoing limitations on implied warranties, so to that extent, if any, some or all of the above limitations may not apply to you.
IN NO EVENT WILL Party Host Helpers BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Party Host Helpers ’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS OWED BY Party Host Helpers FOR Party Host Helpers ENGAGEMENTS PERFORMED UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THIS AGREEMENT.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8.1 Termination by Party Host Helpers . Party Host Helpers reserves the right to terminate your access to the Application if you have not accepted a Party Host Helpers Engagement in the previous twelve calendar months, if you materially breach the Agreement or any Party Host Helpers Engagement, if you violate the law in connection with your use of the Application (or in connection with the performance of the Services) or if you have otherwise engage in conduct in using the Application that Party Host Helpers , in its sole discretion, believes in good faith to be detrimental to its business interests.
8.2 Survival. Sections 3 (“Independent Contractor Relationship”), 4 (“Confidentiality”), 5 (“No Conflicts”), 6 (“Representations and Warranties”), 7 (“Limitation of Liability”), 8.2 (“Survival”), and 9 (“General Provisions”) will survive any termination or expiration of this Agreement and/or any modification or termination of the Application. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination
9.1 Law. Except for the “Mandatory Binding Individual Arbitration And Class Action Waiver” below, which is governed by the Federal Arbitration Act, this Agreement or any claim, cause of action or dispute (“Claim”) arising out of or related to this Agreement shall be governed by the laws of the state of in which the Contractor resides regardless of your country of origin or where you access Party Host Helpers , and notwithstanding any conflicts of law principles.
9.2 Mandatory Binding Individual Arbitration and Class Action Waiver (“Arbitration Agreement”). The Company and Contractor mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and, except as otherwise provided in this Arbitration Agreement, shall apply to any and all claims arising out of or relating to this Contract, the Contractor’s classification as an independent contractor, Contractor’s provision of services to the Company or its Customers, the payments received by Contractor for providing services to the Company or its Customers, the termination of this Contract, and all other aspects of the Contractor’s relationship with the Company, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Contractor’s relationship or the termination of that relationship with the Company. The agreement by Contractor and the Company to mutually arbitrate disputes provides consideration for this Arbitration Agreement. This Arbitration Agreement applies to claims and disputes that the Company may have against Contractor and/or that Contractor may have against the Company, and (1) its affiliates and partners (2) its officers, directors, employees, or agents in their capacity as such or otherwise, and/or (3) all successors and assigns of any of them; any and all of which may enforce this Arbitration Agreement.
The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or alleged waiver of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. However, as stated in the “Class Action Waiver” below, the preceding sentence shall not apply to the clause entitled “Class Action Waiver.”
This Arbitration Agreement does not apply to any claim that may not be arbitrated as provided by an Act of Congress. This Arbitration Agreement also does not apply to Private Attorney General Action claims under California law, which may only be brought in a court of law—not in arbitration.
(a) If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by Contractor must be delivered to Party Host Helpers at email@example.com .
(b) Class Action Waiver. The Company and Contractor mutually agree that by entering into this Arbitration Agreement , both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”). Notwithstanding any other clause contained in this Arbitration Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
(c) Contractor agrees and acknowledges that entering into this Arbitration Agreement does not change Contractor’s status as an independent contractor in fact and in law, that Contractor is not an employee of the Company or the Company’s Customer and that any disputes in this regard shall be subject to arbitration as provided in this Arbitration Agreement.
(d) Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), except as follows:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.
(2) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county in which Contractor performed his contractual duties for The Company.
(3) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that the Company shall pay all of the Arbitrator’s fees and costs.
(4) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(5) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(6) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(7) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
(8) Either the Company or Contractor may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual; provided, however, that all determinations of final relief shall be decided in arbitration, and pursuing the temporary or preliminary injunctive relief shall not constitute a waiver of rights under this agreement to arbitrate.
(e) Regardless of any other terms of this arbitration agreement, claims may be brought before and remedies awarded by an administrative agency (such as the National Labor Relations Board, Occupational Safety and Health Administration, Equal Employment Opportunity Commission, or U.S. Department of Labor) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act.
(f) The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.Google.com or www.Bing.com or by asking firstname.lastname@example.org to provide a copy.
(g) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. Except In addition to as stated with regard to the Class Action Waiver, above, in the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. The Arbitration Agreement is a contractual agreement to mutually arbitrate claims; therefore any statements in any Company handbooks or policies that otherwise disclaim contracts do not apply to this Arbitration Agreement.
9.3 Modifications to Application. Party Host Helpers reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. However, as stated above in Section 8.2 above, Section 9 (“General Provisions”), which contains the Arbitration Agreement, will survive any termination or expiration of this Agreement and/or any modification or termination of the Application or the Service. You agree that Party Host Helpers shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Services.