INDEPENDENT CONTRACTOR AGREEMENT
INDEPENDENT CONTRACTOR AGREEMENT
This INDEPENDENT CONTRACTOR AGREEMENT (“Agreement”) is made and entered into by the undersigned individual identified as “Contractor” (“Contractor”), in favor of and for the benefit of Imount Services, Inc., DBA(the “Company”), and is effective as of the date signed by the Contractor below (the “Effective Date”). As a material inducement for the Company to engage Contractor, and as a condition to Contractor’s use of the Company Service, Contractor is required to enter into this Agreement. In consideration of the foregoing, and intending to legally bound by this Agreement, Contractor, agrees as follows: 1. Definitions. 1.1. “Agreement” has the meaning set forth in the preamble.
1.2. “Company” has the meaning set forth in the preamble.
1.3. “Company Data” means all data related to the access and use of the Company Services hereunder, including all data related to Users (including User Information), all data related to the provision of Technician Services via the Company Services and the Technician App, and the Technician ID.
1.4. “Company Fee” has the meaning set forth in Section 11.4
1.5. “Company Services” mean the Company’s on-demand lead generation and related services licensed by the Company that enable technical providers to seek, receive and fulfill on-demand requests for technical support services by Users seeking such services, which services include the Company’s software, websites, payment services as described in Section 11 below, and related support services systems, as may be updated or modified from time to time.
1.6. “Contractor” has the meaning set forth in the preamble.
1.7. “Contractor’s Device” means an android, IOS or Windows mobile device owned or controlled by Contractor: (a) that meets the then-current Company specifications for mobile devices; and (b) on which the Technician App has been installed as authorized by Company solely for the purpose of providing Technician Services.
1.8. “Effective Date” has the meaning set forth in the preamble.
1.9. “Negotiated Service Fee” has the meaning set forth in Section 11.1.
1.10. “Proprietary Information” means the Company Data, Technician IDs, User Information all information, knowledge and data that relates to the actual or anticipated business, research, development, products, services and/or finances of the Company, its affiliates or subsidiaries disclosed by, or obtained from, the Company, its affiliates or subsidiaries, either directly or indirectly, in writing, orally or visually, including, without limitation, algorithms, trade secrets, computer software, source code, data structures, databases, scripts, application programming interfaces, protocols, drawings, designs, mask works, formulas, technology, ideas, know-how, products, features and modes of operation, services, customer lists and customers, supplier lists and suppliers, compilations containing customer or supplier information, contacts at or knowledge of clients or prospective clients, finances, processes, schematics, specifications, techniques, inventions and improvements (whether or not patentable), patent applications, developments, discoveries, works of authorship, derivative works, technical, business, financial, marketing, customer and product related plans, analyses, compilations, studies, forecasts and strategies and confidential information received by the Company from third parties and all information that is developed, created or discovered by Contractor, either individually or in collaboration with others, in performing the Technician Services.
1.11. “Service Fee” has the meaning set forth in Section 11.1
1.12. “Supplemental Terms” shall have the meaning set forth in Section 22.
1.13. “Technician App” means the mobile application provided by Company that enables technical services to access the Company Services for the purpose of seeking, receiving and fulfilling on- demand requests for technical services by Users, as may be updated or modified from time to time.
1.14. “Technician ID” means the identification and password key assigned by Company to Contractor that enables Contractor to use and access the Technician App.
1.15. “Technician Services” means Contractor’s technical support services to Users via the Company Services in the Territory.
1.16. “Territory” means the city or metro areas in the United States in which Contractor is enabled by the Technician App to provide Technician Services.
1.17. “User” means an end user authorized by the Company to use the Company mobile application for the purpose of obtaining Technician Services.
1.18. “User Information” means information about a User made available to Contractor in connection with such User’s request for and use of Technician Services, which may include the User’s name and contact information.
1.19. “Winston” means the memory storage device containing non-proprietary software provided by the Company for the purpose of assisting Contractor with diagnosing User issues.
2. Technician Services. Subject to the terms and conditions of this Agreement, the Company retains Contractor to perform the Technician Services. Contractor shall perform the Technician Services in accordance with the highest standards of practice in the industry and shall comply with all applicable laws and regulations, the Company’s Technician Code of Conduct available at [LINK], as may be updated from time to time and all of Company’s safety rules in the course of performing the Technician Services. In order to use the Company Services, Contractor must agree to the terms and conditions that are set forth herein. Upon Contractor’s execution (electronic or otherwise) of this Agreement, Contractor shall be bound by the terms and conditions set forth herein. Contractor acknowledges and agrees that as an independent contractor, Contractor retains the sole right to determine when and for how long Contractor will utilize the Technician App or the Company Services. Contractor acknowledges and agrees that Contractor has complete discretion to provide services or otherwise engage in other business or employment activities. Contractor shall have the right, via the Technician App, to (i) accept, decline or ignore a User’s request for Technician Services via the Company Services, or (ii) cancel an accepted request for Technician Services via the Technician App, subject to Company’s then-current cancellation policies. The Company allows Contractor to cancel accepted requests for Technician Services via the Technician App as follows: (a) for cancelations with at least 24 hours’ notice prior to the appointment time, the Company currently has no penalty and (b) for cancelations with less than 24 hours’ notice prior to the appointment time, (i) upon the first instance, the Company will issue a warning and (ii) upon a second instance within 120 days of any previous cancelation with less than 24 hours’ notice, the Company will issue a penalty to the Contractor, including the ability to terminate Contractor, at the Company’s discretion. Except as required by local law or other regulatory requirements, Company shall have no right to require that Contractor wear a uniform or any other clothing displaying Company’s names, logos or colors. Additionally, Contractor understands that Contractor retains the complete right to; (i) use other software application services in addition to the Company Services; and (ii) engage in any other occupation or business. Company retains the right to, at any time at Company's sole discretion, deactivate or otherwise restrict Contractor from accessing or using the Technician App or the Company Services in the event of a violation of this Agreement, Contractor’s disparagement of Company, Contractor’s act or omission that causes harm to Company’s brand, reputation or business as determined by Company in its sole discretion, or for any other reason at the reasonable discretion of Company.
3. Contractor Requirements. Contractor acknowledges and agrees that at all times, Contractor shall: (a) possess the appropriate and current level of training, expertise and experience to provide Technician Services in a professional manner with due skill, care and diligence; (b) maintain high standards of professionalism, service and courtesy. Contractor acknowledges and agrees that Contractor may be subject to certain background !
checks from time to time in order to qualify to provide, and remain eligible to provide, Technician Services; and (c) at the Company’s request, comply with any contract execution requirements, such as those required by Contract Cloud Inc.’s video platform service.
4. Independent Contractor. Contractor is an independent contractor and is not an employee, agent or partner of the Company. Contractor is not eligible to participate in or receive any benefit from any benefit plan or program available to employees of the Company including, without limitation, health, disability, or life insurance, vacation or holiday pay, sick leave, profit sharing, retirement or pension plans. If Contractor is reclassified by a state or federal agency or court as an employee of the Company, Contractor agrees that Contractor will not be entitled to receive any benefits from the Company, except those mandated by state or federal law, even if Contractor would be eligible to receive such benefits pursuant to the terms of the Company’s benefit plans or programs in effect at the time of such reclassification. Contractor does not have the authority to act on behalf of the Company or to bind the Company in any respect whatsoever, or to incur any debts or liabilities in the name of or on behalf of the Company. Persons performing the Technician Services hereunder are not agents or employees of the Company and Contractor has and hereby retains the right to exercise full control of and supervision over the performance of Contractor’s obligations hereunder. Contractor shall be responsible for any and all taxes including, without limitation, income, payroll, sales, use, gross receipts, real estate, personal property or other taxes imposed in connection with this Agreement or Contractor’s performance of the Technician Services and Contractor will indemnify and hold the Company harmless for any and all liability (including, without limitation, penalties and interest) sustained because of Contractor’s failure to pay such taxes. Contractor will be responsible for Contractor’s acts and omissions during the performance of Contractor’s obligations under this Agreement. Contractor shall not be entitled to any unemployment insurance benefits as a result of performing the Technician Services under this Agreement. The Company shall maintain Commercial General Liability insurance and include Contractor as an additional insured for bodily injury and property injury that may occur during the course of Contractor providing the Technician Services.
5. Use of the Company Services.
5.1. Technician IDs. Company will issue Contractor a Technician ID to permit Contractor to access and use the Technician App on Contractor’s Device in accordance with this Agreement. Contractor acknowledges and agrees that Contractor is required to fulfill a request for Technician Services using the Technician App at least once a month to remain an active Contractor. In the event Contractor has not fulfilled a request for Technician Services using the Technician App at least once a month, Company reserves the right to deactivate Contractor’s Technician ID. Contractor agrees that Contractor will maintain Contractor’s Technician ID in confidence and not share Contractor’s Technician ID with any third party. Contractor will immediately notify Company of any breach (actual or suspected) or improper use or disclosure of Contractor’s Technician ID or the Technician App.
5.2. Provision of Technician Services. When the Technician App is active, User requests for Technician Services may appear to Contractor via the Technician App if Contractor is in the User’s surrounding area. If Contractor accepts a User’s request for Technician Services, the Company Services will provide Contractor with certain User Information via the Technician App, including the User’s first name and location. Contractor acknowledges and agrees that once Contractor has accepted a User’s request for Technician Services, Company’s mobile application may provide certain information about Contractor to the User, including Contractor’s first name, contact information, photo and location. Contractor shall not contact any Users for any reason except for the purposes of fulfilling requested Technician Services. As between Company and Contractor, Contractor acknowledges and agrees that: (a) Contractor shall be solely responsible for determining the most effective and efficient manner to perform each instance of requested Technician Services; and (b) except for the Company Services and Winston, Contractor shall provide all necessary equipment, tools and other materials, at Contractor’s own expense, necessary to perform Technician Services.
5.3. Contractor’s Relationship with Users. Contractor acknowledges and agrees that Contractor’s providing of Technician Services to Users creates a direct business relationship between Contractor and the User. Contractor acknowledges and agrees that (a) Company is not responsible or liable for the actions or inactions of a User in relation to Contractor’s activities; (b) Contractor is solely responsible for taking such precautions as may be reasonable and proper regarding any acts or omissions of a User or third party; and (c) Company may release Contractor’s contact information to a User upon such User’s reasonable request.
6. Company License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants Contractor a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Company Services (including the Technician App on Contractor’s Device) solely for the purpose of providing Technician Services to Users and tracking resulting Service Fees. All rights not expressly granted to Contractor are reserved by Company and its respective licensors.
6.1. Restrictions. Contractor shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Company Services, Winston or the Technician App in any way; (b) modify or make derivative works based upon the Company Services or Technician App; (c) improperly use the Company Services or Technician App, including creating Internet URLs or “links” to any part of the Company Services or Technician App, “framing” or “mirroring” any part of the Company Services or Technician App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Company Services or Technician App; (d) reverse engineer, decompile, modify, or disassemble the Company Services or Technician App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, Contractor shall not, and shall not allow any other party to, access or use the Company Services or Technician App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Company Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Company Services; or (iv) attempt to gain unauthorized access to the Company Services or its related systems or networks.
6.2. Ownership. The Company Services, Technician App and Company Data, including all intellectual property rights therein, and Winston are and shall remain (as between Contractor and Company) the property of Company or its respective licensors. Neither this Agreement nor Contractor’s use of the Company Services, Technician App or Company Data conveys or grants to Contractor any rights: (a) in or related to the Company Services, Technician App or Company Data, except for the limited license granted above; or (b) to use or reference in any manner Company’s, or its respective licensors’ company names, logos, product and service names, trademarks, services marks or other indicia of ownership.
7. Devices.
7.1. Company will supply Contractor with Winston, such that: (a) Winston may only be used for the purpose of enabling Contractor’s access to the Company Services; and (b) Winston may not be transferred, loaned, sold or otherwise provided in any manner to any party other than Contractor. Winston shall at all times remain the property of Company, and upon termination of this Agreement or Contractor’s termination or deactivation, Contractor agrees to return to Winston to the Company within ten (10) days. Contractor agrees that failure to timely return Winston, or damage to Winston outside of “normal wear and tear”, may result in the forfeiture of any related deposits.
7.2. With respect to Contractor’s Devices: (a) Contractor is responsible for the acquisition, cost and maintenance of Contractor’s Devices as well as any necessary wireless data plan; and
(b) Company shall make available the Technician App for installation on Contractor’s Device. Company hereby grants Contractor a personal, non-exclusive, non-transferable license to install and use the Technician App on Contractor’s Device solely for the purpose of providing Technician Services. Contractor agrees not to provide, distribute, share, or enable the provision, distribution or sharing of, the Technician App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and Contractor will delete and fully remove the Technician App from Contractor’s Device in the event that Contractor ceases to provide Technician Services using Contractor’s Device. Contractor agrees that: (a) use of the Technician App on Contractor’s Device requires an active data plan with a wireless carrier associated with Contractor’s Device, which data plan will be provided by Contractor at Contractor’s own expense; and (b) use of the Technician App on Contractor’s Device as an interface with the Company Services may consume very large amounts of data through the data plan. COMPANY ADVISES THAT CONTRACTOR’S DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN. 7.3. Location Based Technician Services. Contractor acknowledges and agrees that Contractor’s geo- location information must be provided to the Company Services via Contractor’s Device in order to provide Technician Services. Contractor acknowledges and agrees that Contractor’s geo- location information will be monitored and tracked by the Company Services when Contractor is logged into the Technician App and available to receive requests for Technician Services or when Contractor is providing Technician Services. In addition, Company may monitor, track and share Contractor’s geo-location information obtained by the Technician App and Contractor’s Device for their technical, marketing and commercial purposes, including to provide and improve their products and services.
8. Disclosure of Contractor’s Information. 8.1. Subject to applicable law and regulation, Company may, but shall not be required to, provide to Contractor, a User and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about Contractor through any background check) and any Company Data) about Contractor or any Technician Services provided hereunder if: (a) there is a complaint, dispute or conflict between Contractor and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Company’s sole discretion, by applicable law or regulatory requirements (e.g., Company receives a subpoena, warrant, or other legal process for information); or (d) it is necessary, in Company’s sole discretion, to protect the safety, rights, property or security of Company, the Company Services or any third party; to protect the safety of the public for any reason; to detect, prevent or otherwise address fraud, security or technical issues; and/or to prevent or stop activity Company, in its sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity.
8.2. Contractor expressly consents to Company’s use of location-based services and Contractor expressly waives and releases Company from any and all liability, claims, causes of action or damages arising from Contractor’s use of the Company Services, or in any way relating to the use of the geo-location and other location-based services.
8.3. Company may collect Contractor’s personal data during the course of Contractor’s application for, and use of, the Company Services, which information may be stored, processed, and accessed by Company for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Company’s legitimate business needs. Contractor expressly consent to such use of personal data.
9. Term. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with Section 10.
10. Termination.
10.1. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Company may terminate this Agreement or deactivate Contractor’s Technician ID immediately, without notice, with respect to Contractor in the event Contractor no longer qualifies, under applicable law or the standards and policies of Company, to provide Technician Services, or as otherwise set forth in this Agreement.
10.2. Effect of Termination. Upon termination of the Agreement, Contractor shall: (a) promptly return Winston to the Company; and (b) immediately delete and fully remove the Technician App from any of Contractor’s Devices. Outstanding payment obligations and Sections 1, 4, 12, 13, 14, 15, 16, 17 (for twelve months), 5.3, 6.2, 8, 10.2, 10.3, 18, 20 through 23 shall survive expiration or any termination of this Agreement.
10.3. Waiver of Injunctive Relief. Contractor hereby irrevocably waives any right to injunctive relief or right of rescission, and hereby agrees that Contractor’s sole and exclusive remedy in the event of any breach or alleged breach, termination, or cancellation of this Agreement by Company shall be an action for damages.
11. Financial Terms.
11.1. Service Fee Calculation and Contractor’s Payment. Contractor is entitled to charge a service fee for each instance of completed Technician Services provided to a User obtained via the Company Services (the “Service Fee”), whereby such Service Fee is calculated by the Company based upon the Contractor’s level of expertise and the amount of time the Contractor spends providing the Technician Services to the User in the applicable Territory. Contractor: (a) appoints Company as Contractor’s limited payment collection agent solely for the purpose of accepting the Service Fee from the User on Contractor’s behalf via the payment processing functionality facilitated by the Company Services; and (b) agrees that payment made by User to Company shall be considered the same as payment made directly by User to Contractor. In addition, the parties acknowledge and agree that as between Contractor and Company, the Service Fee is a recommended amount, and the primary purpose of the pre-arranged Service Fee is to act as the default amount in the event Contractor does not negotiate a different amount. Contractor shall always have the right to: (a) charge a Service Fee that is less than the pre-arranged Service Fee; or (b) negotiate, at Contractor’s request, a Service Fee that is lower than the prearranged Service Fee (each of (a) and (b) herein, a “Negotiated Service Fee”). Company shall consider all such requests from Contractor in good faith. Company agrees to remit to Contractor on at least a weekly basis: (a) the Service Fee less the applicable Company Fee (as defined below) and (b) depending on the region, certain taxes and ancillary fees.
11.2. Changes to Service Fee Calculation. Company reserves the right to change the Service Fee calculation at any time in Company’s discretion based upon local market factors, and Company will provide Contractor with notice in the event of such change that would result in a change in the recommended Service Fee for each instance of completed Technician Services. Continued use of the Company Services after any such change in the Service Fee Calculation shall constitute Contractor’s consent to such change.
11.3. Service Fee Adjustment. Company reserves the right to: (a) adjust the Service Fee for a particular instance of Technician Services (e.g., Contractor was inefficient in providing the Technician Services, Contractor failed to resolve the User’s issue, Contractor and User failed to properly end a particular instance of Technician Services in the Technician App, technical error in the Company Services, etc.); or (b) cancel the Service Fee for a particular instance of Technician Services (e.g.,
User is charged for Technician Services that were not provided, in the event of a User complaint, fraud, etc.). Company’s decision to reduce or cancel the Service Fee in any such manner shall be exercised in a reasonable manner.
11.4. Service Fee. In consideration of Company’s provision of the Technician App and the Company Services for Contractor’s use and benefit hereunder, Contractor agrees to pay Company a service fee on a per Technician Services transaction basis calculated as a percentage of the Service Fee (regardless of any Negotiated Service Fee), as provided or otherwise made available by Company from time to time for the applicable Territory (“Company Fee”). In the event regulations applicable to Contractor’s Territory require taxes to be imputed in the Service Fee, Company shall calculate the Company Fee based on the Service Fee net of such taxes. Company reserves the right to change the Company Fee at any time in Company’s discretion based upon local market factors, and Company will provide Contractor with notice in the event of such change. Continued use of the Company Services after any such change in the Company Fee calculation shall constitute Contractor’s consent to such change.
11.5. Cancellation Charges. Contractor acknowledges and agrees that Users may elect to cancel requests for Technician Services that have been accepted by Contractor via the Technician App at any time prior to Contractor’s arrival. In the event that a User cancels an accepted request for Technician Services, Company may charge the User a cancellation fee on Contractor’s behalf. If charged, this cancellation fee shall be deemed the Service Fee for the cancelled Technician Services for the purpose of remittance to Contractor hereunder.
11.6. Receipts. As part of the Company Services, Company provides Contractor a system for the delivery of receipts to Users for Technician Services rendered. Upon Contractor’s completion of Technician Services for a User, Company prepares an applicable receipt and issues such receipt to the User via email on Contractor’s behalf. Such receipts are also provided to Contractor via email or online portal. Receipts include the breakdown of amounts charged to the User for Technician Services and may include specific information about Contractor, including Contractor’s name, contact information and photo. Any corrections to a User’s receipt for Technician Services must be submitted to Company in writing within three (3) business days after the completion of such Technician Services. Absent such a notice, Company shall not be liable for any mistakes in or corrections to the receipt.
11.7. Taxes. Contractor acknowledges and agrees that Contractor is responsible for collecting and remitting all applicable gross receipts, sales and use, excise or any other transaction tax on the provision of Technician Services.
12. Proprietary Information.
12.1. Confidentiality. During and after the term of this Agreement, Contractor shall hold in strict confidence all Proprietary Information and take the same precautions as Contractor employs to safeguard its own confidential information, but in no event shall Contractor exercise less than a reasonable degree of care. Contractor shall not use, disclose or reveal any Proprietary Information (or any information derived therefrom) to any person or entity, except on a “need to know” basis or for any purpose, except for Contractor’s use as necessary in the ordinary course of performing the Technician Services. Contractor agrees that if and to the extent that Contractor received access to any information from or on behalf of the Company that would have been Proprietary Information if Contractor received such information during the term of this Agreement then any such information shall be deemed Proprietary Information.
12.2. Exceptions. Contractor’s obligations under Section 12.1 shall not apply to any information that Contractor demonstrates by written evidence: (a) is or becomes publicly available through no fault of Contractor; (b) is already in the possession of Contractor without restriction on use or disclosure at the time of the Company’s disclosure to Contractor; or (c) is lawfully obtained by Contractor from a third party, without any obligation of confidentiality, that is entitled to disclose such information.
In addition, Contractor may disclose such parts of Proprietary Information as may be required by law or court order; provided that, to the extent not prohibited under applicable law, Contractor provides the Company prompt written notice of such requirement.
12.3. Remedies. Contractor acknowledges that the Company will suffer immediate, irreparable harm in the event Contractor fails to comply with its obligations under this Section 12, and monetary damages will be inadequate to compensate the Company for such breach. Contractor agrees that, in addition to any other remedies available to it at law or in equity, the Company will be entitled to equitable relief, including temporary and permanent injunctive relief, (without the requirement of posting a bond or other form of security) to restrain any breach or threatened breach of this Agreement.
13. Contractor’s Representations and Warranties. Contractor represents and warrants to the Company that: (a) it has the right to enter into and fully perform its obligations under this Agreement and to grant the rights granted to the Company hereunder; (b) any and all information, code, programs, processes, practices and techniques which it will describe, demonstrate, divulge, use, or in any other manner make known to the Company during the performance of the Technician Services may be divulged and freely used by the Company, without any obligation to any third party, or violation of any right of any third party, and without violation of any law or obligation to pay any royalty, fee or charge; and (c) Contractor will not improperly use, disclose or induce the Company to use any proprietary information or trade secrets of any third party with which Contractor has an obligation to keep such proprietary information or trade secrets in confidence and Contractor’s performance of all of the terms of this Agreement will not breach any agreement to keep in confidence any proprietary information or trade secrets acquired by Contractor in confidence or in trust from any third party.
14. Indemnification. Contractor shall defend, indemnify and hold the Company and its affiliates and their respective directors, officers, employees and representatives harmless from and against any and all claims, suits, proceedings, causes of action, damages, losses, liabilities, judgments, settlements, costs and expenses (including, without limitation, attorneys’ fees and costs) arising directly or indirectly out of or relating to: (a) any act, error or omission of Contractor or any of its subcontractors or their respective employees related to its performance of, or failure to perform, the Technician Services or Contractor’s breach or alleged breach of any of its representations, warranties or covenants set forth in this Agreement; (b) any failure of Contractor to perform the Technician Services in accordance with all applicable laws, rules and regulations; or (c) any actual or alleged infringement or violation of any third party’s patent rights, copyright rights, mask work rights, trademark rights, trade secret rights, sui generis database rights, industrial design rights and all other intellectual property, industrial property and proprietary rights of any kind recognized anywhere in the world, now or in the future, resulting in whole or in part from the performance of the Technician Services.
15. Assignment. Contractor shall not assign, transfer or subcontract any right in, or delegate any of its obligations under, this Agreement without the Company’s prior written consent and any purported assignment or delegation in the absence of the Company’s consent shall be null and void. The Company may freely assign or transfer this Agreement, or any right hereunder or interest herein, without Contractor’s consent. This Agreement shall be binding on and inure to the benefit of each party's heirs, executors, legal representatives, successors and permitted assigns.
16. Non-Solicitation of Customers and Vendors. At no time during or after the term of this Agreement shall Contractor engage, directly or indirectly, in any of the following conduct: (a) make use of any trade secret or other Proprietary Information to divert or attempt to divert any business from the Company or any client of the Company, or to solicit or attempt to solicit any business, on Contractor’s behalf or on behalf of any person or entity other than the Company; (b) induce or attempt to induce, on Contractor’s behalf or on behalf of any person or entity other than the Company, any customer, client, vendor, supplier, licensee or other third party to sever, reduce, or breach any existing contractual relationship with the Company or any client of the Company; or
(c) induce or attempt to induce, on Contractor’s behalf or on behalf of any person or entity other than the Company, any customer, client, vendor, supplier, licensee or other third party to sever, reduce, refrain from establishing or expanding, or abandon any non-contractual or prospective business relationship with the Company or any client of the Company.
17. Non-Solicitation of Employees. Contractor will not, during the term of this Agreement, or for twelve (12) months thereafter, induce or attempt to induce any person who, at the time of such inducement, is or was, during the prior six (6)-month period, an employee of the Company (or any affiliate of it that may be formed), to perform work or services for any other person or entity other than the Company or its affiliates.
18. Disclaimer of Warranties. COMPANY PROVIDES, AND CONTRACTOR ACCEPTS, THE COMPANY SERVICES, TECHNICIAN APP AND WINSTON ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT CONTRACTOR’S ACCESS TO OR USE OF THE COMPANY SERVICES, TECHNICIAN APP OR WINSTON: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR TECHNICIAN SERVICES. COMPANY FUNCTIONS AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE TECHNICIAN SERVICES FROM CONTRACTOR, AND COMPANY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE COMPANY SERVICES AND TECHNICIAN APP, CONTRACTOR ACKNOWLEDGES AND AGREES THAT CONTRACTOR MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO CONTRACTOR OR OTHER THIRD PARTIES. CONTRACTOR IS ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE COMPANY SERVICES OR TECHNICIAN APP. NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF CONTRACTOR FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON CONTRACTOR’S BEHALF AS SET FORTH IN SECTION 11 ABOVE, COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF CONTRACTOR, ANY USER OR OTHER THIRD PARTY.
19. No Service Guarantee. COMPANY DOES NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE COMPANY SERVICES OR TECHNICIAN APP. CONTRACTOR ACKNOWLEDGES AND AGREES THAT THE COMPANY SERVICES OR TECHNICIAN APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE COMPANY SERVICES OR TECHNICIAN APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
20. Limitation of Liability. IN NO EVENT SHALL THE COMPANY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT IN AGGREGATE PAID OR PAYABLE BY THE COMPANY TO CONTRACTOR UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO SUCH LIABILITY.
21. Modification. Company reserves the right to modify the terms and conditions of this Agreement at any time, effective upon publishing an updated version of this Agreement on the portal available to Contractor on the Company Services. Company reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Contractor hereby acknowledges and agrees that, by using the Company Services, or downloading, installing or using the Technician App, Contractor is bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Service Fee calculations. Continued use of the Company Services or Technician App after any such changes shall constitute your consent to such changes. Unless changes are made to the arbitration provisions herein, you acknowledge and agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration.
22. Supplemental Terms. Supplemental terms may apply to Contractor’s use of the Company Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). Contractor may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. In the event of a conflict, the Supplemental Terms shall prevail over this Agreement.
23. General. In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed and interpreted in accordance with the laws of the State of Illinois without regard to conflicts of law provisions thereof. The parties specifically submit themselves to the jurisdiction of the Illinois state and U.S. federal courts located in the County of Los Angeles and each party agrees that such courts have the sole and exclusive jurisdiction over any and all disputes and causes of action arising out of or relating to this Agreement. Both parties agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Illinois or U.S. federal law. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover all costs and reasonable attorneys’ fees incurred by such party. Except as specifically set forth in this Agreement, all notices shall be in writing and deemed duly given upon receipt if delivered in person or sent by registered or certified mail, postage prepaid, or by commercial overnight courier with tracking capabilities, addressed as set forth below, or to such other address as may be provided by written notice in accordance with the foregoing. No modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of both parties. The failure of the Company to require performance by Contractor of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by the Company of a breach of any provision hereof by Contractor be taken or held to be a waiver of the provision itself. This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements, understandings, discussions and writings with respect thereto. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together shall constitute one and the same instrument. Delivery of a copy of this Agreement bearing an original signature and transmitted by email or other form of electronic transmission will have the same effect as physical delivery of the document bearing the original signature.
IN WITNESS WHEREOF, the parties have executed this Independent Contractor Agreement as of the Effective Date.