Terms and Conditions of Use
PLEASE READ ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS INDEPENDENT CONTRACTOR AGREEMENT CAREFULLY. YOU ARE NOT AUTHORIZED TO ACCESS, INSTALL OR USE THE PLOWZ & MOWZ, INC. MOBILE APPLICATION UNLESS YOU AGREE TO ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS INDEPENDENT CONTRACTOR AGREEMENT, WHICH CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND PLOWZ & MOWZ, INC. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, LIMITED LIABILITY COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY. BY ACCESSING, INSTALLING AND/OR USING THE PLOWZ & MOWZ, INC. MOBILE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS INDEPENDENT CONTRACTOR AGREEMENT IN ITS ENTIRETY AND AGREE TO ACCEPT AND COMPLY WITH ALL OF THE PROVISIONS, TERMS AND CONDITIONS CONTAINED HEREIN.
Please note this Agreement applies only to independent contractors performing on-demand services. Each contractor’s performance of subscription-based services is governed by a separate Independent Contractor Agreement entered into by and between the applicable contractor and Plowz & Mowz, Inc.
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT (this “Agreement”) is made by and between Plowz & Mowz, Inc., a Delaware corporation (“us”, “we” or “our”) and the individual, partnership, firm, corporation, limited liability company, association or other organization or enterprise accessing, installing or using the Plowz & Mowz mobile application (“you” or “your”).
- We own and run a mobile application known as “Plowz & Mowz”, which allows our customers to purchase on-demand and subscription landscaping, plowing, and other outdoor services (the “Services”);
- You are in the business of providing the public with the Services or you provide the public with only snow removal services from time to time but are not in the business of providing such Services on a professional basis (such person, a “Snow Gig Worker”); and
- You are interested in performing the Services for our customers on the terms set out in this Agreement.
For the avoidance of doubt and except as otherwise specifically stated herein, we and you acknowledge and agree that for purposes of this Agreement, if you are a Snow Gig Worker, the defined term “Services” as set forth in this Agreement shall be limited to services related to snow removal as requested by our customers from time to time.
- Term. The term (the “Term”) of this Agreement commences on the date both we and you sign this Agreement and it will remain in effect until terminated: (i) by us, without prior notice, at any time for any or no reason or (ii) by you, upon written notice, at any time for any or no reason. Upon termination of this Agreement, neither party shall have any further obligations hereunder except for (x) obligations accruing prior to the date of termination, including the payment of compensation relating to Services completed prior to the date of termination, and (y) the provisions of this Agreement which contemplate or govern performance or observance subsequent to the termination hereof, or which by their nature should survive termination, as contemplated by Section 18.
- Compensation. From time to time we may request you to perform the Services for a customer (a “Project”) and, on the next business day following completion of such Project, we will pay you the amount agreed upon prior to your performance of the Services. You are solely responsible for any travel or other costs or expenses incurred by you in connection with the performance of the Services, and in no event shall we reimburse you for any such costs or expenses. You acknowledge that you will receive an IRS Form 1099-MISC from us, and that you shall be solely responsible for all federal, state and local taxes related to amounts paid to you for your performance of the Services.
- Performance of the Services. We hereby engage you, and you hereby accept such engagement, as an independent contractor to provide the Services on the terms and conditions set forth in this Agreement. You shall furnish, at your own expense, all vehicles, equipment, supplies and other materials necessary to perform the Services. You hereby represent and warrant to us that (a) you have the right to enter into this Agreement and to perform fully all of your obligations in this Agreement, (b) your performance of the Services does not and will not conflict with or result in any breach or default under any other agreement to which you are subject, (c) you have the required skill, experience, and qualifications to perform the Services, (d) you shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, (e) you shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner, and (f) you shall perform the Services in compliance with all applicable laws, rules and regulations. Snow Gig Workers further represent and warrant to us that (a) you are at least 18 years old, (b) you understand the nature of shoveling snow and that you are qualified, in good health, and in proper physical condition to participate in such an activity, (c) you fully understand that snow removal involves risks of serious bodily injury, including permanent disability, paralysis and death, which may be caused by your own actions, or inactions, of others, and the conditions and, to the fullest extent permitted by law, waive, release and forever discharge us from and against all claims and causes of action for any accident, illness, injury, harm, loss or damage of any kind, whether to persons or property, which may arise or result directly or indirectly from or out of your participation in snow removal and (d) you fully understand that there may be other risks either not known to you or not readily foreseeable at this time and you fully accept and assume all such risks and all responsibility for losses, costs and damages you incur as a result of snow removal.
- Confidentiality. You hereby agree to treat confidentially all non-public information regarding our business and operations that is provided by us or otherwise discovered by or made accessible to you in connection with the Services (“Confidential Information”). Confidential Information includes, but is not limited to, any information regarding Plowz & Mowz or its customers. You agree to not disclose any Confidential Information to any third party. You covenant and agree to (i) protect and maintain the confidentiality of the Confidential Information in a manner no less stringent than you use to protect similar confidential information which you own, (ii) not disclose the Confidential Information to any person other than those persons who have a need-to-know in order to perform the Services; provided that we have given prior written approval to such disclosure, (iii) not use the Confidential Information for any purpose other than to perform the Services pursuant to this Agreement, (iv) take all commercially reasonable precautions to restrict access to the Confidential Information, and (v) promptly notify us in the event of any unauthorized disclosure or loss of, or inability to account for, Confidential Information.
- Non-Solicitation / Non-Disparagement. During the term of this Agreement, and for a period of twelve (12) months after the termination of this Agreement, you are not permitted to, for your own account or for the account of any other person or entity, (i) make statements or take actions which solicit, divert, take away or attempt to solicit, divert or take away any of our customers, or which encourage or would reasonably be expected to cause any of our customers to reduce their business with us, or which otherwise interfere with the relationship with our customers and prospective customers, (ii) offer to provide any of our customers with services that are similar to the Services or otherwise competitive with any of the services provided by or through us, (iii) provide quotes to or respond to inquiries of or requests for information from any customers or prospective customers of us regarding the performance of services that are similar to the Services or otherwise competitive with any of the services provided by or through us, other than in connection with the performance of the Services, or (iv) employ, solicit, or induce the services of any person who is or has been an employee or independent contractor of ours. During and after the term of this Agreement, you further agree that you shall not, directly or indirectly, make statements or take actions which disparage our reputation. We stipulate that, in light of all of the facts and circumstances of the relationship between us, the agreements referred to in this section are fair and reasonably necessary for the protection of our confidential information, goodwill and other protectable interests.
- Remedies. You agree that a breach of Sections 4 or 5 of this Agreement would cause us to suffer immediate and irreparable damage that could not be adequately remedied by an action at law. Accordingly, you agree that we shall have the right to seek equitable relief, including a temporary or permanent injunction or specific performance, as a remedy for any breach of Sections 4 or 5 of this Agreement, such right being in addition to all other rights and remedies available to us at law, in equity, or otherwise.
- Independent Contractor. You shall at all times be an independent contractor of us, and nothing contained herein, or any document executed in connection herewith, shall be construed to create an employer-employee, partnership or joint venture relationship between us. You have no authority to, and shall not, enter into contracts, make representations, warranties or commitments purporting to be binding on us or otherwise act on behalf of us and shall not take any action that might lead third parties to believe that you have the right to do so. You will not represent to be or hold itself out as an employee of ours and you acknowledge that you shall not have any right or entitlement in or to any benefit program now or hereafter available to our regular employees as a result of and with respect to the Services. Without limiting the generality of the foregoing, we shall not, and shall not be required to, provide any benefits to you such as workers’ compensation, insurance or unemployment insurance. Any and all sums subject to deductions, if any, required to be withheld and/or paid under any applicable state, federal or municipal laws or union or professional guild regulations shall be your sole responsibility. You shall pay all of your own taxes and fees, such as FICA, income tax, unemployment insurance, disability insurance and workers’ compensation, and you shall indemnify and hold us harmless from any and all damages, claims and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising out of or resulting from any claims asserted by any taxing authority as a result of or in connection with said payments. You understand that we use many different contractors to perform services for its customers and this Agreement does not guaranty you any particular amount of income nor shall it prevent or otherwise limit our ability to engage and utilize the services of other contractors as it determines in its sole and absolute discretion.
- Insurance. Except if you are a Snow Gig Worker, you must obtain insurance policies satisfactory to us, at your sole cost and expense, and maintain such policies during the Term. Such insurance policies must be with an insurance carrier qualified and admitted to do business in the state or states in which the Services will be performed. The insurance carrier must have at least an A- (excellent) rating by A.M. Best. At a minimum you must carry:
- Workers’ Compensation Insurance with statutory Employers Liability limits (unlimited in New York);
- Commercial General Liability Insurance with a minimum limit of $1,000,000 per occurrence and $2,000,000 in the aggregate, which insurance shall cover premises and operations liability, contractual liability, products/completed operations, and personal and advertising injury. You shall cause us to be included as additional insured on a primary and non-contributory basis, before any other insurance or self-insurance, including any deductible or self-insured retention, maintained by or provided to the additional insured. Coverage must include on-going as well as completed operations. There shall be no exclusions within such policies for snow removal, snow shoveling or salting operations performed by you.
- Automobile Liability Insurance covering owned, hired and non-owned vehicles, with a minimum limit of liability of $1,000,000. You shall cause us to be included as additional insured on a primary and non-contributing basis. There shall be no exclusions within this policy for snow removal, snow shoveling or salting operations performed by you.
If you fail to procure all or any portion of the insurance required by this section, recoverable damages shall include, but not be limited to, the cost of premiums for such additional insurance, and all sums expended and damages incurred by us, our customer, and their respective insurers, which would have otherwise been paid by such required insurance. You must also maintain such other insurance as may be required by statute for your employees, contractors and in relation to providing the Services. Each policy must include a waiver of subrogation. You shall provide thirty (30) days prior written notice to us in the event of termination, cancellation or material change in any such policy. You must provide us with a certificate of insurance showing the above insurance coverage before beginning Services and upon our request within five (5) business days. Attached to the certificate of insurance with respect to the General Commercial Liability and Automobile Liability policies shall be copies of the additional insured endorsements required above. You must have a copy of each certificate and attachments with you at all times while performing the Services. If, upon the termination of this Agreement or any time thereafter, you cease to be continuously insured under a “claims-made” policy of general liability insurance or commercial auto insurance that protects you and us against claims relating to your acts or omissions during the time period that you provided Services under this Agreement, you shall be responsible for purchasing an extended reporting endorsement (i.e., “tail” coverage) for said policy within the necessary period to secure such “tail” coverage. For purposes of this Section 8, the term “tail” coverage shall mean liability coverage which converts a previously existing “claims-made” liability policy to an “occurrence” policy in order to provide insurance protection for any liability exposure incurred during the term of the claims-made policy, regardless of when such claims are made.
- Responsibilities of Your Personnel. As between us, you assume sole responsibility for your personnel, if any, providing services hereunder and will make all deductions required of employers by state, federal and local laws.
- Indemnification. To the fullest extent permitted by law, you will indemnify, defend and hold harmless us and our directors, officers, shareholders, agents and representatives from and against any and all damages, losses, costs (including, without limitation, reasonable attorneys’ fees) actions, claims, demands, lawsuits, or other proceedings, which arise out of, or otherwise related to your (including, but not limited to, your employees, representatives or agents) acts or omissions, including but not limited to, your performance of the Services, your breach of any representation or warranty under this Agreement, your negligent or willful misconduct, and your violation of any law applicable to the Services.
- Compliance with Laws. It is your sole responsibility to know and comply with all applicable Federal and State laws, codes and regulations. Prior to providing any Services, you must provide us with written notification if we are required to obtain any permits or licenses in connection with the Services, if applicable. You represent and warrant to us that you hold and maintain all federal, state and local licenses, permits and other permissions necessary to provide the Services to be performed under this Agreement.
- Disclaimer. We cannot, and do not, attest to the identity, character or trustworthiness of any of our customers, and we do not and shall not have any responsibility or liability to you arising from your interactions with any customer, including, but not limited to, any hazards you encounter on a customer’s premises or dangerous conditions that exist. IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, WHETHER OR NOT WE HAVE BEEN ADVISED OF THEM IN ADVANCE, ARISING FROM OR RELATING TO THE SERVICES. THIS LIMITATION INCLUDES ALL CLAIMS UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER THEORY.
- Successors and Assigns. This Agreement is personal to the parties hereto and may not be assigned or delegated by you, in whole or in part, without the prior written consent of us. Notwithstanding the foregoing, all of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, if any, successors, and assigns.
- Amendments. No amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto.
- Headings. The headings in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
- Notices. All notices, requests, demands and other communications required or permitted under this Agreement must be in writing and delivered in person, mailed by certified mail, faxed or e-mailed to the other party at the address contained below. Notices will be considered received on the date of delivery. Either party may change its address for receiving notice by giving written notice to the other party in accordance with this Section 14.
- Governing Law; Submission to Jurisdiction; WAIVER OF JURY TRIAL. This Agreement shall be governed by the internal laws of the State of New York, regardless of conflicts of laws principles. Each party consents to the exclusive jurisdiction of the Supreme Court of the State of New York (Onondaga County) or the U.S. District Court for the Northern District of New York, for the purpose of any proceeding brought in connection with this Agreement or the performance of the Subscription Services. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 24.
- Survival. The provisions of this Agreement which contemplate or govern performance or observance subsequent to the termination hereof, or which by their nature should survive termination, shall survive termination hereof, including, without limitation, the provisions of Section 1 (Term), Section 4 (Confidentiality), Section 5 (Non-Solicitation / Non-Disparagement), Section 6 (Remedies), Section 8 (Insurance), Section 10 (Indemnification), Section 12 (Disclaimer), Section 17 (Governing Law; Submission to Jurisdiction; WAIVER OF JURY TRIAL) and this Section 18 (Survival).
- Miscellaneous. All rights under this Agreement are cumulative with all other rights a party might have. Failure by Plowz & Mowz to exercise any remedy shall not be considered a waiver of any rights. This Agreement is the entire agreement and understanding between the parties hereto regarding the Subscription Services and replaces any prior understanding, including, but not limited to, any previous independent contractor agreement. You expressly agree that there are no promises, agreements, conditions, undertakings, warranties or representations, oral or written, expressed or implied, other than as set forth in this Agreement. If any provision of this Agreement is unenforceable, this Agreement shall be construed as if such provision was not included herein and the remaining provisions shall remain in full force and effect. This Agreement may be executed in counterparts and will be effective when at least one counterpart has been executed by each party hereto. This Agreement may be executed in duplicate originals, each of which shall be deemed to be an original instrument. All such counterparts and duplicate originals together shall constitute but one agreement. This Agreement may be executed and delivered via telefax or other means of electronic transmission.
- Acknowledgement of Binding Agreement. You acknowledges that this is a binding legal agreement and that you have read each page of this Agreement prior to its effectiveness and that you fully understand its meaning and effect. You acknowledge and agree that you have had the opportunity to have this Agreement reviewed by your attorney or have expressly elected to forego such review, and that by accepting this Agreement and engaging in the Services, you intend to be legally bound by all its terms.