DELIVERY DRIVER INDEPENDENT CONTRACTOR AGREEMENT

Transcription

1 DELIVERY DRIVER INDEPENDENT CONTRACTOR AGREEMENT This DELIVERY DRIVER INDEPENDENT CONTRACTOR AGREEMENT ( Agreement ) is made by and entered into between-, an individual residing at,-(the Contractor ) and BURPY INC. a corporation existing under the laws of the State of Texas, and having its principal place-of business at 1616 Guadalupe Street, Austin, Texas (the Company ), and is executed as a binding agreement as of this- day of, 20 -(the Effective Date ). (Contractor and Company are sometimes herein referred to collectively as the- Parties or individually as a Party.) RECITALS: BACKGROUND AND PURPOSE OF THIS AGREEMENT A. WHEREAS, the Company wishes to engage the Contractor as an independent contractor for the Company for the purpose of completing the delivery of certain designated Order(s) to the customers of the Company on the terms and conditions set forth below; and B. WHEREAS, the Contractor wishes to provide the Services (as defined below) in accordance with the terms of this Agreement; and C. WHEREAS, each Party is duly authorized and capable of entering into this Agreement. NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, the Parties hereby agree as follows: 1. DRIVER REPRESENTATIONS AND WARRANTIES. To become and remain a delivery driver for the Company, the Contractor represents, warrants and agrees as follows: I am at least 18 years of age, have a valid Texas or other state driver license, and possess (and shall continue to maintain) personal automobile insurance coverage as mandated by the State of Texas. I have not exceeded two at-fault accidents/violations within the last 18 months or have any violation in the last 18 months for drunk driving, driving under the influence of drugs, or reckless driving, or have a reinstated license in effect less than one year after revocation. While driving I agree to obey all local, state and federal traffic laws, agree not to drive under the influence of alcohol or any illegal drug, agree not to possess or transport any alcohol, illegal drugs, firearms or weapons, agree to wear a seatbelt and require all passengers to wear a seatbelt, and agree to avoid horseplay, racing or other distracting or aggressive behavior. I authorize and consent to allow the Company to obtain information regarding my driving performance and insurance coverage at any time. I will notify my Manager immediately if I am involved in an accident, receive any moving violations, or a change occurs in my driving privileges or auto insurance coverage. My vehicle has current state inspection and registration. I will not smoke, chew tobacco, eat, drink, wear headphones, talk on the telephone, nor use a radar detector while driving for the Company. I will not carry any passengers besides other on-duty Company employees. I will maintain an acceptable driving record. I will keep my personal vehicle, or any Company vehicle, clean and in good repair while driving for the Company. I will not permit any unauthorized persons to drive the vehicle. Page 1 of 8

2 I agree to keep copies of my up-to-date driver s license, insurance card and information, and vehicle inspection and registration with the Company. I understand that by using my personal vehicle to perform the Services under this Agreement, should there be any damage to my vehicle, other vehicles or property, or injury to passengers in my vehicle, to drivers or passengers of other vehicle(s), or to any pedestrian, that my personal insurance will be used to cover any claims made; and that neither the Company nor the Customer will be responsible for damages or injuries. Failure to follow any of the above may result in the immediate termination of this Agreement. 2. SERVICES TO BE PERFORMED. 2.1 Contractor agrees to deliver each food and/or grocery order (the Order ), as determined by the Company, to the address of the residence of the customer of the Company (or other location as determined by the Company) (the Services ). 2.2 The services to be performed under this agreement are personal to the Contractor and as such the Company requires such services to be performed exclusively and by the Contractor him/her self. 2.3 The Contractor shall make each delivery in safe and careful manner and complete each deliver within a reasonable amount time. 3. TERMS OF PAYMENT. 3.1 Compensation. In consideration for the services to be performed by Contractor, the Company agrees to pay Contractor in accordance with the compensation terms set forth on Schedule A, which terms may be modified by written agreement between the Company and Contractor. 3.2 No Other Compensation. The compensation set forth on Schedule A shall be the Contractor s sole compensation under this Agreement. 3.3 Damages or Losses to the Order. The Contractor shall be responsible for the Order and liable for the loss or damage to any of the items contained in the Order after accepting control of the same; any such loss or damages shall be deducted from the Contractor s compensation. 3.4 Invoices and Payment. Contractor shall send the Company an invoice monthly. The Company shall pay Contractor within ten (10) days from the date of each invoice. The invoice should include the following: an invoice number, the dates covered by the invoice, and a summary of the work performed. 3.5 Late Fees. Late payments by the Company shall be subject to late penalty fees of set forth on Schedule A accruing per month from the date due until the amount is paid. 4. EXPENSES. Contractor shall be responsible for all expenses incurred while performing services under this Agreement. This includes automobile, truck, and other travel expenses; vehicle maintenance and repair costs; vehicle and other license fees and permits; insurance premiums; road, fuel, and other taxes; fines; pager, or cell phone expenses; meals; and all salary, expenses, and other compensation paid to employees or contract personnel the Contractor hires to complete the work under this Agreement. 5. VEHICLES AND EQUIPMENT. Contractor will furnish all vehicles, equipment, tools, and materials used to provide the services required by this Agreement. Except were required otherwise in this Agreement, The Company will not require Contractor to rent or purchase any equipment, product, or service as a condition of entering into this Agreement. 6. TERM. This Agreement shall become effective as of the Effective Date and, unless otherwise terminated in accordance with the terms of this Agreement, will continue until the Services have been satisfactorily completed and the Contractor has been paid in full for such Services (the Term ); provided, however, that in no event shall this Agreement remain effective for longer than one (1) year. Page 2 of 8

3 7. TERMINATING THE AGREEMENT. Either party may terminate this Agreement at any time by giving five (5) days written notice of termination. Contractor shall be entitled to full payment for services performed prior to the effective date of termination. 8. INDEPENDENT CONTRACTOR STATUS. Contractor is an independent contractor, and not the Company s employee. The Contractor and the Company agree to the following rights consistent with an independent contractor relationship: Contractor has the right to perform services for others during the term of this Agreement. Contractor has the sole right to control and direct the means, manner, and method by which the services required by this Agreement will be performed. Contractor shall perform the services required by this Agreement; the Company shall not hire, supervise, or pay any assistants to help the Contractor. Contractor shall not receive any training from the Company in the skills necessary to perform the services required by this Agreement. The Company shall not require Contractor to devote full time to performing the services required by this Agreement. Contractor shall not be eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of the Company. Contractor shall at all times represent to third-parties that Contractor is an independent contractor and not an employee of the Company, and shall not utilize business cards or other materials with the Company s name or logo unless authorized in writing by the Company and such materials clearly reflect Contractor s independent contractor status. 9. LEGAL COMPLIANCE. Contractor is encouraged to treat all company employees, customers, clients, business partners and other affiliates with respect and responsibility. Contractor is required to comply with all laws, ethical codes and company policies, procedures, rules or regulations, including those forbidding sex harassment, discrimination, and unfair business practices. 10. BUSINESS LICENSES, PERMITS, AND CERTIFICATES. Contractor represents and warrants that Contractor and Contractor's employees and contract personnel will comply with all federal, state, and local laws requiring driver's and other licenses, business permits, and certificates required to carry out the Services to be performed under this Agreement. 11. LOCAL, STATE, AND FEDERAL TAXES Contractor shall pay all income taxes and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. The Company will not: (a) Withhold FICA from Contractor s payments or make FICA payments on Contractor s behalf, (b) Make state or federal unemployment compensation contributions on Contractor s behalf, or (c) Withhold state or federal income tax from Contractor s payments The charges included here do not include taxes. If Contractor is required to pay any federal, state, or local sales, use, property, or value-added taxes based on the services provided under this Agreement, the taxes shall be billed to the Company separately. Contractor shall not pay any interest or penalties incurred due to late payment or nonpayment of such taxes by the Company. 12. FRINGE BENEFITS. Contractor understands that neither Contractor nor Contractor's employees or contract personnel are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of the Company. Page 3 of 8

4 13. UNEMPLOYMENT COMPENSATION. The Company shall make no state or federal unemployment compensation payments on behalf of Contractor or Contractor's employees or contract personnel. Contractor will not be entitled to these benefits in connection with work performed under this Agreement. 14. WORKERS' COMPENSATION. The Company shall not obtain workers' compensation insurance on behalf of Contractor or Contractor's employees. 15. INSURANCE The Company shall not provide insurance coverage of any kind for Contractor or Contractor's employees or contract personnel. Contractor shall obtain the following insurance coverage and maintain it during the entire term of this Agreement: (a) Automobile liability insurance for each vehicle used in the performance of this Agreement (including owned, non-owned, leased, or hired vehicles) in the minimum amount of sixty thousand dollars ($60,000) combined single limit per occurrence for bodily injury and property damage. (b) Comprehensive or commercial general liability insurance coverage in the minimum amount of sixty thousand dollars ($60,000) combined combined single limit, including coverage for bodily injury, personal injury, broad form property damage, contractual liability, and cross-liability Before commencing any work, Contractor shall provide the Company with proof of this insurance and with proof that the Company has been made an additional insured under the policies Contractor understands that the Company will rely on the representations and documentation provided by Contractor as proof of coverage and shall not be responsible for independently verifying the effectiveness of such coverage beyond a review of such documentation. 16. CONFIDENTIALITY Contractor acknowledges that it will be necessary for the Company to disclose certain confidential and/or proprietary information to Contractor in order for Contractor to perform duties under this Agreement. Contractor acknowledges that disclosure to a third party or misuse of this proprietary or confidential information would irreparably harm the Company. Accordingly, Contractor will not disclose or use, either during or after the term of this Agreement, any proprietary or confidential information of the Company or its customers without the Company's prior written permission except to the extent necessary to perform services on the Company's behalf Proprietary or confidential information includes: (a) Private personal or business information about the customer(s) of the Company; (b) The written, printed, graphic, or electronically recorded materials furnished by the Company for Contractor to use; (c) Any written or tangible information stamped confidential, proprietary, or with a similar legend, or any information that the Company makes reasonable efforts to maintain the secrecy of; (d) Business or marketing plans or strategies, customer lists, operating procedures, trade secrets, design formulas, know-how and processes, computer programs and inventories, discoveries, and improvements of any kind, sales projections, and pricing information; and (e) Information belonging to customers and suppliers of the Company about whom Contractor gained knowledge as a result of Contractor's services to the Company Upon termination of Contractor's services to the Company, or at the Company's request, Contractor shall deliver to the Company all materials in Contractor's possession relating to the Company's business Contractor acknowledges that any breach or threatened breach of this Section 16 of this Agreement will result in irreparable harm to the Company for which damages would be an inadequate remedy. Therefore, the Company shall be entitled to equitable relief, including an injunction, in the event of such breach or threatened breach of this Section 16 of this Agreement. Such equitable relief shall be in addition to the Company's rights and remedies otherwise available at law. 17. NON-SOLICITATION. Page 4 of 8

5 Independent Contractors shall not, during the Agreement and for a period of one year immediately following termination of this Agreement, either directly or indirectly, call on, solicit, or take away, or attempt to call on, solicit, or take away, any of the customers or clients of the Company on whom Independent Contractor called or became acquainted with during the terms of this Agreement, either for their own benefit, or for the benefit of any other person, firm, corporation or organization. 18. NON-RECRUIT. Independent Contractor shall not, during this Agreement and for a period of one year immediately following termination of this agreement, either directly or indirectly, recruit any of Company s employees for the purpose of any outside business. 19. RETURN OF PROPERTY. On termination of this Agreement, or whenever requested by the parties, each party shall immediately deliver to the other party all property in its possession, or under its care and control, belonging to the other party to them, including but not limited to, proprietary information, customer lists, trade secrets, intellectual property, computers, equipment, tools, documents, plans, recordings, software, and all related records or accounting ledgers. 20. NO PARTNERSHIP. This Agreement does not create a partnership relationship. Neither party has authority to enter into contracts on the other s behalf. 21. MODIFICATION. No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties. 22. ASSIGNMENT. The Company may assign this Agreement freely, in whole or in part. The Contractor may not, without the written consent of the Company, assign, subcontract, or delegate its obligations under this Agreement, except that the Contractor may transfer the right to receive any amounts that may be payable to it for its Services under this Agreement, which transfer will be effective only after receipt by the Company of written notice of such assignment or transfer. 23. SUCCESSORS AND ASSIGNS. All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties. 24. FORCE MAJEURE. A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party s reasonable control (each a Force Majeure Event ); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable: (a) Notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and (b) Use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder. 25. NO IMPLIED WAIVER. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation. Page 5 of 8

6 26. NOTICES. Any notice to be given hereunder by any party to the other may be affected either by personal delivery in writing, or by mail, registered or certified, postage pre-paid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraphs of this Agreement, but each party may change their address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of five (5) days after mailing. Contractor agrees to keep Company current as to their business and mailing addresses, as well as telephone, facsimile, and pager numbers. 27. ATTORNEY'S FEES AND COSTS. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements incurred both before or after judgment in addition to any other relief to which such party may be entitled. 28. INDEMNIFICATION. Contractor shall defend, indemnify, hold harmless, and insure the Company from any and all damages expenses or liability resulting from or arising out of, any negligence or misconduct on Contractor's part, or from any breach or default of this Agreement which is caused or occasioned by the acts of Contractor. Contractor shall name the Company as an additional insured on all related insurance policies including workers compensation, and general liability. 29. REPRESENTATION. Each party of this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party hereto, or anyone acting on behalf of any party hereto, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement shall be effective only if it is in writing, signed and dated by all parties hereto. 30. GOVERNING LAW; VENUE. This Agreement shall be governed by, and construed under, the laws of the State of Texas. The Contractor irrevocably consents to the personal jurisdiction of the state and federal courts located in Travis County, Texas for any suit or action arising from or related to this Agreement, and waives any right the Contractor may have to object to the venue of such courts. The Contractor further agrees that these courts will have exclusive jurisdiction over any such suit or action initiated by the Contractor against the Company. The Contractor also irrevocably waives any right the Contractor may have to a jury trial. 31. COUNTERPARTS/ELECTRONIC SIGNATURES. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, , or other electronic medium shall have the same force and effect as an original signature. 32. HEADINGS. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. 33. SEVERABILITY. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein. Page 6 of 8

7 34. ENTIRE AGREEMENT. This Agreement, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties. IN WITNESS WHEREOF, the Parties hereto, declare to have fully and carefully read, understood and consent to terms of the agreement, and hereby duly execute this DELIVERY DRIVER INDEPENDENT CONTRACTOR AGREEMENT as of the Effective Date set forth above. CONTRACTOR Authorized Signature: Print Name and Title: Date: Address (first line): Address (second line): Driver s License Number & State: UIN: COMPANY Authorized Signature: Print Name and Title: Date: Address (first line): Address (second line): Submit this form along with your current driver s license, insurance card, and state vehicle registration. Page 7 of 8

8 SCHEDULE A CONTRACTOR COMPENSATION SCHEDULE 1. COMPENSATION: (To make a selection an option, check the box next to the option(s) that apply) Option 1: $[ ] per successfully completed delivery. Option 2: $[_10_] per hour for successfully completed deliveries. 2. LATE FEE: [_25_] % of accrued compensation not paid when due, non-compounding. Page 8 of 8