Independent Contractor Agreement
Last modified July 14, 2016
This Independent Contractor Agreement (this “Agreement”) is entered into by and between Urgo Inc. (“Urgo”), a California Corporation, and contractor (“Professional”) as of the date the Professional accepts this Agreement via the Urgo Platform (the “Effective Date”). Urgo and the Professional are sometimes referred to collectively herein as the “Parties” and individually as a “Party.” Urgo and Professional agree as follows:
1. Background and Initial Obligations.
1.1. Use of the Urgo Platform. Urgo and Professional agree to use the Urgo’s Mobile App, the www.urgoapp.com website, and various related services (collectively, the “Urgo Platform”) for the assignment of, delivery of, and payment for Professional’s services under this Agreement. Urgo and Professional specifically incorporate into this Agreement and agree to be bound by the Urgo Platform’s Terms of Service available at [LINK TO TERMS] (“Terms of Service”), as they may be amended from time to time. To the extent there are conflicts between this Agreement and the Terms of Service, this Agreement shall control.
1.2. Identity of Professional. “Professional” is the independent contractor that accepted this Agreement via the Urgo Platform.
1.3. Services Performed by Professionals. Once hired by a customer on Urgo (“Customer” or “Customers”), Professional will perform certain services for Customers (“Services”). Professional acknowledges and agrees that Customer is an express third-party beneficiary of this Agreement.
1.4. Use of the Urgo Platform. You agree to use Urgo to receive all payments from all Customers who identify you or whom you identify on the Urgo Platform. You acknowledge that Urgo earns its fees through transactions that take place on the Urgo Platform. You agree not to take any action directly or indirectly to circumvent these fees.
2. Engagement and Performance of Services.
2.1. Engagement. Professionals maybe engaged by Customers to provide Services using the Urgo Platform. Professional will be paid for Services in accordance with the terms and conditions of this Agreement, the Terms of Service, and the relevant job description.
2.2. Performance. Professional will perform the Services in a timely and professional manner, consistent with industry standards, at a location, place, and time that Professional and/or Customer deems appropriate. The manner and means that Professional chooses to provide the Services is in his/her sole discretion and control. In performing the Services, Professional agrees to provide and use his/her own equipment, tools, and other materials at his/her own expense.
2.3. Agreements with Customers. Customers may require Professionals to enter into additional agreements before providing Services. Professional can execute, or refuse to execute, such documents in his/her sole discretion. If Professional refuses to enter into an agreement required by Customer, Customer may decide not to use Professional’s Services.
Customers are required to pay Professionals for Professional’s Services, in accordance with the job description. Professionals will not be compensated for work outside of the scope of the job description. Urgo is not responsible for paying Professional when Customer fails to pay Urgo for Professional’s work, including, but not limited to, when Customer is unsatisfied with Professional’s services and when Customer fails to pay Urgo. Although Urgo is not responsible for paying Professional until and unless Urgo has been paid by Customer for Professional’s work, Urgo may pursue Customer for payment. If Urgo later receives payment from Customer, Urgo will, as soon as reasonably possible, pay Professional. If Urgo receives only partial payment from a Customer (e.g., a payment that is only a portion or percentage of the amount Professional invoiced Customer), Urgo is only responsible for paying Professional a percentage of the partial amount received by Urgo[JG1] . Professional will be responsible for all expenses incurred in performing services under this Agreement.
4. Independent Contractor Relationship.
Professional’s relationship with each Urgo and Customer will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer- employee relationship with Urgo or Customer.
4.1. No Employment or Agency. Professional (a) is not an employee of Urgo or Customer; (b) is not the agent of Urgo or Customer; (c) is not authorized to make any representation, contract, or commitment on behalf of Urgo or Customer; and (d) will not be entitled to any of the benefits that Urgo or Customer makes available to its employees, such as group insurance, stock plans, profit-sharing, or retirement benefits (and waives the right to receive any such benefits).
4.2. Tax and Regulatory Compliance. Professional is solely responsible for all tax returns and payments required to be filed with or made to any national, federal, state, or local tax authority with respect to Professional’s performance of Services and receipt of fees under this Agreement. If applicable, Urgo will report amounts paid to Professional by filing Form 1099-MISC with the Internal Revenue Service, as required by law. Professional agrees to fill out form W-9 or W8-BEN, as applicable, and as required by Urgo. Professional accepts exclusive liability for complying with all applicable national, federal, state, provincial, and local laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Professional under this Agreement. Professional agrees to obtain appropriate workers’ compensation injury coverage where such coverage is required by law. Neither Urgo nor Customer will withhold or make payments for social security, any pension or social insurance plan, unemployment insurance or disability insurance contributions, any employer health taxes or other payroll taxes, including penalties and interest, or obtain workers’ compensation insurance on Professional’s behalf. Professional hereby agrees to indemnify and defend Urgo against any and all such taxes or contributions, including penalties and interest. Professional agrees to provide proof of payment of appropriate taxes on any fees paid to him/her under this Agreement upon reasonable request of Urgo.
4.3. Withholding. Upon execution of this Agreement and thereafter as may be reasonably requested by Urgo, Professional shall provide Urgo with any form reasonably requested by Urgo and required by a relevant taxing authority in order to certify that Professional is not subject to income tax withholding on any payment of fees under this Agreement. In the event any such tax is required by law to be withheld on compensation payable under this Agreement, Urgo may terminate this Agreement immediately. If Urgo elects to continue the Agreement, Urgo shall pay such tax on behalf of Professional to the appropriate governmental authority, offset the compensation by such tax and furnish Professional with proof of payment of such tax. Any such tax required to be withheld shall be an expense of and borne by Professional.
5. Competitive or Conflicting Jobs.
Professional may enter into other contracts and accept work from other entities during the term of this Agreement, except Professional agrees not to enter into a contract or accept an obligation that is inconsistent or incompatible with his/her obligations under this Agreement. Professional warrants that there is no such contract or obligation in effect as of the Effective Date. Professional further agrees not to disclose to, deliver to, or induce Urgo or Customer to use any confidential information that belongs to anyone other than Urgo, Customer, or Professional.
6. Confidential Information.
To the extent a Customer provides Confidential Information to the Professional, the recipient will protect the secrecy of that Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of the Service (including, without limitation, the storage or transmission of Confidential Information on or through the Urgo Platform for use by Professional); and (c) limit access to Customer’s Confidential Information to Professional’s personnel who need to know such information for the performance of Freelancer Services. A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
7. Representations and Warranties.
Professional hereby represents and warrants to Urgo and to Customer that (a) the work product will fully conform to the requirements and terms set forth in this Agreement, including the job description; (b) the work product will be free from material errors, faults, and defects of any kind; (c) the work product will not contain any virus, Trojan horse, malicious code, trap door or other software code designed to harm Urgo or Customer’s systems, servers, computers or the Urgo Platforms; (d) neither the work product nor any element thereof will infringe or misappropriate the Intellectual Property Rights of any third party; (e) neither the work product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances; (f) Professional will not grant, directly or indirectly, any rights or interest whatsoever in the work product to third parties other than Customer; (g) Professional has full right and power to enter into and perform this Agreement without the consent of any third party; and (h) Professional will comply with all laws and regulations applicable to his/her obligations under this Agreement.
Professional will defend, indemnify, and hold harmless Urgo and Customer, individually and collectively, against any damage, cost, loss, or expense arising from a claim, suit, or proceeding brought against Urgo and/or Customer (i) alleging that any work product that Professional delivers pursuant to this Agreement infringes upon any intellectual property rights; (ii) alleging that any work product that Professional delivers pursuant to this Agreement misappropriates any trade secrets of Customer or any third party; (iii) arising from or related to Professional’s breach of any representation or warranty; (iv) arising from or related to Professional’s failure to pay any taxes or fees due as a result of his/her work under this Agreement; (v) arising from or related to Professional’s failure to comply with any applicable law or regulation; or (vi) arising from or related to Professional’s breach of any other terms of this Agreement.
Professional, at its sole cost and expense, will maintain appropriate insurance in accordance with industry standards.
10. Term and Termination.
This Agreement, as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Urgo Platform and will remain in effect for the duration of your use of the Urgo Platform. Unless both you and Urgo expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation.
11. Return of Property.
Upon termination of the Agreement or upon Urgo’s request at any other time, Professional will deliver to Urgo or Customer, as applicable, all of its property together with all copies thereof, and any other material containing or disclosing any work product, Third Party Information, or Confidential Information.
12. General Provisions.
12.1. Governing Law and Venue. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California and the United States of America, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.
12.2. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.3. No Assignment. This Agreement, and the party’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by either party without the other’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees.
12.4. Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in accordance with the Terms of Service. Urgo may send notices to Professional at the last email address of record provided by Professional to Urgo.
12.5. Injunctive Relief. Professional acknowledges that, because its Services are personal and unique and because Professional will have access to Confidential Information of Urgo and Customer, any breach of this Agreement by Professional would cause irreparable injury to Urgo or Customer for which monetary damages would not be an adequate remedy and, therefore, will entitle Urgo or Customer to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
12.6. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.7. Arbitration. Professional and Urgo agree and acknowledge that they will utilize final and binding arbitration to resolve all disputes that may arise out of or relate to this Agreement, as outline in the Terms of Service.
12.8. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by Professional and Urgo.
[JG1]Let me know your thoughts on this – basically, need to figure out what happens to Professional’s pay when a Customer either doesn’t pay (say, they use a bad CC) or when they request a refund or the like.