Local Bytes Driver Agreement
Independent Contractor Agreement
This Agreement (“Agreement”) is made and entered into by and between you, the undersigned contractor (“CONTRACTOR”), an independent contractor engaged in the business of performing the services contemplated by this Agreement, and Dynamic Developers, LLC (“COMPANY”). CONTRACTOR may enter this Agreement either as an individual or as a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any Contracted Services.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION XI, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
COMPANY is a company that provides an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers (“COMPANY” platform” or “platform”). COMPANY’s software permits registered users to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, COMPANY software notifies contractors that a delivery opportunity is available and the COMPANY software facilitates completion of the delivery. COMPANY is not a restaurant, food delivery service, or food preparation business.
CONTRACTOR is an independent provider of delivery and other services, authorized to conduct the services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates. CONTRACTOR possesses all equipment and personnel necessary to perform the delivery and any other services contemplated by this Agreement in accordance with applicable laws. CONTRACTOR desires to enter into this Agreement for the right to receive delivery opportunities made available through COMPANY'S platform. CONTRACTOR understands and expressly agrees that he/she is not an employee of COMPANY or any restaurant, other business or consumer and that he/she is providing delivery and other services on behalf of him/herself and his/her business, not on behalf of COMPANY. CONTRACTOR understands (i) he/she is free to select those times he/she wishes to be available on the platform to receive delivery opportunities; (ii) he/she is free to accept or reject the opportunities transmitted through the COMPANY platform by consumers, and can make such decisions to maximize his/her opportunity to profit; and (iii) he/she has the sole right to control the manner in which deliveries are performed and the means by which those deliveries are completed.
In consideration of the above, as well as the mutual promises described herein, COMPANY and CONTRACTOR (collectively “the parties”) agree as follows:
I. PURPOSE OF THE AGREEMENT
1. This Agreement governs the relationship between COMPANY and CONTRACTOR, and establishes the parties’ respective rights and obligations. In exchange for the promises contained in this Agreement, CONTRACTOR shall have the right and obligation to perform the “Contracted Services” as defined herein. However, nothing in this Agreement requires CONTRACTOR to perform any particular volume of Contracted Services during the term of this Agreement, and nothing in this Agreement shall guarantee CONTRACTOR any particular volume of business for any particular time period.
2. CONTRACTOR shall have no obligation to accept or perform any particular “Delivery Opportunity” (as that term is defined herein) offered by COMPANY. However, once a Delivery Opportunity is accepted, CONTRACTOR shall be contractually bound to complete the Contracted Services in accordance with all consumer specifications and the terms laid out in this Agreement.
II. CONTRACTOR'S OPERATIONS
1. CONTRACTOR represents that he/she operates an independently established enterprise that provides delivery and other services, and that he/she satisfies all legal requirements and has all necessary licenses and permits necessary to perform any services contemplated by this Agreement. As an independent contractor/enterprise, CONTRACTOR shall be solely responsible for determining how to operate his/her business and how to perform the Contracted Services.
2. CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. COMPANY shall have no right to, and shall not, control the manner, method or means CONTRACTOR uses to perform the Contracted Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of pickup, delivery, and route selection.
3. As an independent business enterprise, CONTRACTOR retains the right to perform services (whether delivery services or other services) for others and to hold him/herself out to the general public as a separately established business. The parties recognize that they are or may be engaged in similar arrangements with others and nothing in this Agreement shall prevent CONTRACTOR or COMPANY from doing business with others. COMPANY does not have the right to restrict CONTRACTOR from performing services for other businesses, customers or consumers at any time, even if such business directly competes with COMPANY, and even during the time CONTRACTOR is logged into the COMPANY platform. CONTRACTOR’s right to compete with COMPANY, or perform services for business that compete with COMPANY, will survive even after termination of this Agreement.
4. CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from COMPANY as a condition of doing business with COMPANY or entering into this Agreement. CONTRACTOR is required to provide a smartphone to receive the Delivery Opportunities and to otherwise interact with the COMPANY platform. CONTRACTOR agrees not to use customer phone numbers or addresses for purposes other than the deliveries herein.
5. CONTRACTOR agrees to immediately notify COMPANY in writing at www.dynamicdevelopers.dev/contact-us/ if CONTRACTOR's right to control the manner or method he/she uses to perform services differs from the terms contemplated in this Section.
6. CONTRACTOR agrees that at all times he or she are required to maintain a clean, business like appearance and clothing shall not display any profanity, gore, politically or racially divisive statements. Further, no low-cut garments, sweatpants or short shorts which would offer anything other than a business-like appearance, while at the same time CONTRACTOR agrees to, at all times while providing services under this Agreement, wear a Local Bytes Driver badge displaying their name. COMPANY may choose, at their sole discretion, to require display of a Local Bytes advertisement on the vehicle of CONTRACTOR, which will be provided by COMPANY at no cost to CONTRACTOR and which shall be prominently displayed by CONTRACTOR at all time while providing services under this Agreement. If CONTRACTOR shall lose or damage the sign or Driver badge, COMPANY may recover from CONTRACTOR the full replacement cost for same, either by withholding from payments or pursuing recovery in any manner available under the law, as well as costs of recovery, including reasonable attorney fees and costs. COMPANY may also provide delivery bags to CONTRACTOR for use in the delivery of goods and products. CONTRACTOR shall return bags in original condition, subject only to normal wear and tear, immediately upon termination or request by COMPANY. If CONTRACTOR fails to do so, or if the bags have been damaged, COMPANY may recover the full replacement costs for same in the same manner as described for signs above.
7. CONTRACTOR is responsible and liable for damage to the products taken into their possession for delivery and any damages caused to the products are recoverable from CONTRACTOR. Such costs may be deducted from compensation or recovered in the same manner set out in Paragraph 6 hereinabove.
8. In the event of any public health crisis, CONTRACTOR agrees and understands that masks, gloves or other personal protective equipment, or other requirements or restrictions, may be mandated by governmental agencies or bodies.
III. CONTRACTED SERVICES
1. From time to time, the COMPANY platform will notify CONTRACTOR of the opportunity to complete deliveries from restaurants or other businesses to consumers in accordance with orders placed by consumers through the COMPANY platform (each of these is referred to as a "Delivery Opportunity"). For each Delivery Opportunity accepted by CONTRACTOR ("Contracted Service"), CONTRACTOR agrees to retrieve the orders from restaurants or other businesses on time and safely, ensure the order is accurately filled, and complete delivery orders to consumers in a safe and timely fashion. CONTRACTOR understands and agrees that the parameters of each Contracted Service are established by the consumer, not COMPANY, and represent the end result desired, not the means by which CONTRACTOR is to accomplish the result. CONTRACTOR has the right to cancel, from time to time, a Contracted Service when, in the exercise of CONTRACTOR's reasonable discretion and business judgment, it is appropriate to do so. Failure to satisfy this obligation constitutes a material breach of this Agreement, and COMPANY shall have the right to terminate this Agreement and/or deactivate CONTRACTOR'S account.
2. CONTRACTOR acknowledges that COMPANY has discretion as to which, if any, Delivery Opportunity to offer, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Opportunity.
3. CONTRACTOR acknowledges that CONTRACTOR is engaged in CONTRACTOR’s own business, separate and apart from COMPANY’S business, which is to provide an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers.
4. CONTRACTOR authorizes COMPANY, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or restaurant or other business to assist CONTRACTOR, to the extent permitted by CONTRACTOR, in facilitating deliveries. However, under no circumstances shall COMPANY be authorized to control the manner or means by which CONTRACTOR performs delivery services or other services contemplated under this agreement. This includes, but is not limited to, the following:
5. COMPANY does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
6. CONTRACTOR does not have a supervisor or any individual at COMPANY to whom they report.
7. CONTRACTOR does not receive regular performance evaluations by COMPANY.
8. In the event CONTRACTOR fails to fully perform any Contracted Service (a "Service Failure") due to CONTRACTOR's action or omission, CONTRACTOR shall forfeit all or part of the agreed upon fee for that service. If CONTRACTOR disputes responsibility for a Service Failure, the dispute shall be resolved pursuant to the "Payment Disputes" provision below.
9. CONTRACTOR agrees to immediately notify COMPANY in writing to COMPANY if CONTRACTOR's services or scope of work differ in any way from what is contemplated in this Section.
IV. RELATIONSHIP OF PARTIES
1. The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. The parties are not employees, agents, joint venturers, or partners of each other for any purpose. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this Agreement.
2. COMPANY shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by CONTRACTOR. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in COMPANY have been inserted solely for the safety of consumers and other CONTRACTORS using the COMPANY platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
3. COMPANY, or COPMANY’s agents or third-parties, shall report all payments made to CONTRACTOR on a calendar year basis using an appropriate IRS Form 1099, if the volume of payments to CONTRACTOR qualify. CONTRACTOR agrees to report all such payments and any cash gratuities to the appropriate federal, state and local taxing authorities.
V. PAYMENT FOR SERVICES
1. Unless notified otherwise by COMPANY in writing or except as provided herein, CONTRACTOR will receive payment per delivery as will be noted in the Delivery Opportunity. From time to time, COMPANY may offer opportunities for CONTRACTOR to earn more money for performing Contracted Services at specified times or in specified locations. Nothing prevents the parties from negotiating a different rate of pay, and CONTRACTOR is free to accept or deny any such opportunities to earn different rates of pay.
2. COMPANY’s online credit card software may permit consumers to add a gratuity to be paid to CONTRACTOR, and consumers can also pay a gratuity to CONTRACTOR in cash. CONTRACTOR shall retain 100% of any gratuity paid by the consumer, whether by cash or credit card. COMPANY acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR.
3. COMPANY, or a third-party processor, will process payments made by consumers and transmit to CONTRACTOR. Payments for all deliveries completed in a given week will be transferred via direct deposit on no less than a weekly basis unless it notifies CONTRACTOR otherwise in writing.
4. Notwithstanding the terms of Section V(1) – (3), fulfillment orders placed directly with merchants rather than through the App or LocalBytes.dev (“Fulfillment Orders”) may be subject to a different payment model. Nothing prevents the parties from negotiating a different rate of pay for a Fulfillment Order, and the CONTRACTOR is free to accept or reject Fulfillment Order opportunities. As with all Delivery Opportunities, CONTRACTOR shall retain 100% of any gratuity paid by the consumer for a Fulfillment Order. COMPANY's software may not always include an option to add gratuity for Fulfillment Orders; however, consumers can pay a gratuity to CONTRACTOR in cash.
5. From time to time, COMPANY may offer various promotions or referral programs. CONTRACTOR agrees that he or she will not manipulate or abuse the referral programs or promotions by, among other things: (a) tampering with the location feature on his or her mobile phone; (b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or, (c) creating multiple CONTRACTOR or consumer accounts. CONTRACTOR understands that engaging in this type of manipulation or abuse constitutes a material breach of this Agreement and may lead to deactivation of his or her account.
VI. PAYMENT DISPUTES
1. CONTRACTOR's Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in COMPANY’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumer, restaurant or other business, CONTRACTOR, and any other party with information relevant to the dispute. COMPANY shall make the initial determination as to whether a Service Failure was the result of CONTRACTOR's action/omission. CONTRACTOR shall have the right to challenge COMPANY’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify COMPANY in writing at www.dynamicdevelopers.dev/contact-us/ of the challenge and provide COMPANY the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of his/her challenge.
2. COMPANY’s Failure: In the event COMPANY fails to remit payment in a timely or accurate manner, CONTRACTOR shall have the right to seek proper payment by any legal means contemplated by this Agreement and, should CONTRACTOR prevail, shall be entitled to recover reasonable costs incurred in pursuing proper payment, provided, however, CONTRACTOR shall first inform COMPANY in writing by certified mail of the failure and provide a reasonable opportunity to cure it.
VII. EQUIPMENT AND EXPENSES
1. CONTRACTOR represents that he/she has or can lawfully acquire all equipment, including vehicles and food hot bags ("Equipment") necessary for performing Contracted Services, and CONTRACTOR is solely responsible for ensuring that the vehicle used conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability.
2. CONTRACTOR agrees that he/she is responsible for all costs and expenses arising from CONTRACTOR's performance of Contracted Services, including, but not limited to, costs related to CONTRACTOR's Personnel (defined below) and Equipment. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to its Equipment.
1. In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the COMPANY platform, pass a background check administered by a third-party vendor, subject to CONTRACTOR's lawful consent. CONTRACTOR is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this Agreement, hire or engage others (as employees or subcontractors of CONTRACTOR) to perform all or some of the Contracted Services, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, the background check requirements that CONTRACTOR must meet in order to perform Contracted Services. To the extent CONTRACTOR furnishes his/her own employees or subcontractors (collectively "Personnel"), CONTRACTOR shall be solely responsible for the direction and control of the Personnel it uses to perform all Contracted Services.
2. CONTRACTOR assumes full and sole responsibility for the payment of all amounts due to his/her Personnel for work performed in relation to this Agreement, including all wages, benefits and expenses, if any, and for all required state and federal income tax withholdings, unemployment insurance contributions, and social security taxes as to CONTRACTOR and all Personnel employed by CONTRACTOR in the performance of Contracted Services under this Agreement. COMPANY shall have no responsibility for any wages, benefits, expenses, or other payments due CONTRACTOR's Personnel, nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to CONTRACTOR or his/her Personnel. Neither CONTRACTOR nor his/her Personnel shall receive any wages, including vacation pay or holiday pay, from COMPANY, nor shall they participate in or receive any other benefits, if any, available to COMPANY's employees.
3. Unless mandated by law, COMPANY shall have no authority to withhold state or federal income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state or federal tax on behalf of CONTRACTOR or his/her Personnel.
4. If CONTRACTOR uses the services of any Personnel to perform the Contracted Services, CONTRACTOR's Personnel must satisfy and comply with all of the terms of this Agreement, which CONTRACTOR must make enforceable by written agreement between CONTRACTOR and such Personnel. A copy of such written agreement must be provided to COMPANY at least 7 days in advance of such Personnel performing the Contracted Services. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR's compliance with the terms of this Agreement.
1. CONTRACTOR agrees, as a condition of doing business with COMPANY, that during the term of this Agreement, CONTRACTOR will maintain current insurance, in amounts and of types required by law to provide the Contracted Services, at his/her own expense. CONTRACTOR acknowledges that failure to secure or maintain satisfactory insurance coverage shall be deemed a material breach of this Agreement and shall result in the termination of the Agreement and the loss of CONTRACTOR's right to receive Delivery Opportunities.
2. NOTIFICATION OF COVERAGE: CONTRACTOR agrees to deliver to COMPANY, upon request, current certificates of insurance as proof of coverage. CONTRACTOR agrees to provide updated certificates each time CONTRACTOR purchases, renews, or alters CONTRACTOR's insurance coverage. CONTRACTOR agrees to give COMPANY at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement.
3. WORKERS' COMPENSATION/OCCUPATIONAL ACCIDENT INSURANCE: CONTRACTOR agrees that CONTRACTOR will maintain sufficient insurance to cover any risks or claims arising out of or related to CONTRACTOR’S relationship with COMPANY, including workers’ compensation insurance where required by law. CONTRACTOR acknowledges and understands that CONTRACTOR will not be eligible for workers’ compensation benefits through COMPANY and is instead responsible for maintaining CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance. CONTRACTOR’S maintenance of CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance will not disqualify CONTRACTOR from participating in the Occupational Accident Insurance Policy for CONTRACTORS, which COMPANY may make available to CONTRACTOR.
1. COMPANY agrees to indemnify, protect and hold harmless CONTRACTOR from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly from COMPANY's actions arranging and offering the Contracted Services to CONTRACTOR.
2. CONTRACTOR agrees to indemnify, protect and hold harmless COMPANY, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of CONTRACTOR and/or his/her Personnel arising from the performance of delivery services under this Agreement, including personal injury or death to any person (including to CONTRACTOR and/or his/her Personnel), as well as any liability arising from CONTRACTOR's failure to comply with the terms of this Agreement. CONTRACTOR's obligations hereunder shall include the cost of defense, including attorneys' fees, as well as the payment of any final judgment rendered against or settlement agreed upon by COMPANY or its parent, subsidiary and/or affiliated companies.
3. CONTRACTOR agrees to indemnify, protect and hold harmless COMPANY, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to CONTRACTOR and CONTRACTOR's Personnel.
4. CONTRACTOR shall be responsible for, indemnify and hold harmless COMPANY, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from all costs of CONTRACTOR's business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
XI. EXCLUSIVE VENUE, JURISDICTION AND WAIVER OF JURY TRIAL
1. CONTRACTOR and COMPANY mutually agree that venue and jurisdiction for any disputes of any nature shall be the District Court of Cherokee County, in the State of Oklahoma.
2. CONTRACTOR further specifically and irrevocably waives the right to a jury trial.
XII. LITIGATION CLASS ACTION WAIVER
To the extent allowed by applicable law, separate and apart from the provisions found in Section XI, CONTRACTOR agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, will be conducted solely on an individual basis, and CONTRACTOR agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which CONTRACTOR acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). CONTRACTOR further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.
XIII. TERMINATION OF AGREEMENT
1. CONTRACTOR may terminate this Agreement upon seven (7) days written notice. COMPANY may terminate this Agreement and deactivate CONTRACTOR’S account only for any reason.
2. CONTRACTOR’s and COMPANY’s obligations and rights arising under of this Agreement shall survive termination of this Agreement.
XIV. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
1. This Agreement shall constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement. COMPANY may submit updates or changes to the terms of this Agreement between COMPANY and CONTRACTOR by transmitting same to CONTRACTOR at the e-mail address provided by the CONTRACTOR. The acceptance of Contracted Services on any date subsequent to the transmittal of said updates or changes shall be deemed to be acceptance of those terms by the CONTRACTOR with no further writing required. This Agreement supersedes any prior contract between the parties. To the extent COMPANY’s consumer facing Terms and Conditions Agreement (or updated consumer facing Terms and Conditions Agreement, if applicable) is inconsistent or conflicts with this Agreement, this Agreement controls. This Agreement may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided, however, that COMPANY may assign its rights and obligations under this Agreement to an affiliate of COMPANY or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this Agreement to COMPANY shall be deemed to include such successor(s).
2. The failure of COMPANY or CONTRACTOR in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.
1. CAPTIONS: Captions appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
2. SEVERABILITY Clause: Except as specifically provided in Section XI, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
3. GOVERNING LAW: The choice of law for interpretation of this Agreement, and the right of the parties hereunder, as well as substantive interpretation of claims asserted pursuant to Section XI, shall be the rules of law of the state of Oklahoma.
4. NOTICE AND OPPORTUNITY TO CURE: CONTRACTOR agrees to notify COMPANY in writing by certified mail at 205 W Shawnee St., Tahlequah, OK 74464 of any breach or perceived breach of this Agreement, of any claim arising out of or related to this Agreement, or of any claim that CONTRACTOR’s services or scope of work differ in any way from what is contemplated in this Agreement, including but not limited to the terms in Sections II (Contractor’s Operations) and III (Contracted Services), or if the relationship of the parties differs from the terms contemplated in Section IV (Relationship of Parties).
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Signed by Tyler Bailey
Signed On: December 3, 2020
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Document Name: Local Bytes Driver Agreement
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