THIS INDEPENDENT CONTRACTOR AGREEMENT (the “Agreement”) is made and entered into as of June 1st, 2020 (the “Effective Date”) by and between CUDDLY TAILS (hereinafter the “Company”), a State of New York, Cuddlytails Inc. and “You” (hereinafter the “Contractor” or “Walker”) (collectively referred to herein as the “Parties,” and individually as a “Party”). In consideration of the covenants and conditions described here, the Parties agree as follows:
- TERM & TERMINATION.
A.1 This Agreement takes effect immediately as of the Effective Date, and shall remain in full force and effect for a period of twelve (12) months (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for successive renewal terms of twelve (12) months (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term (as applicable).
A.2 Either Party may terminate this Agreement for cause by providing the other Party written notice if the other Party: (A) is in material breach of this Agreement and has failed to cure such breach within five (5) days after its receipt of written notice of such breach provided by the non-breaching Party or (B) engages in any unlawful business practice related to that Party’s performance under the Agreement.
- B. WALKER SERVICES. Company provides a service in which Company connects pet owners (“Owners”) with Contractors who desire to provide dog walking, pet sitting and/or home care for pet services for a fee (collectively the “Services”). Contractor shall utilize Company’s technology platform in order to offer Contractor’s Services to Owners within a specified geographic area. Contractor agrees that in agreeing with any Owner to perform Services at an agreed upon date and time, it is imperative that Contractor provide such Services at the agreed upon date and time. Further, Contractor agrees that Contractor will perform the Services at the date and time agreed to with the Owner and that if such becomes impossible for any reason whatsoever, Contractor will notify Company of its inability to meet such Services obligations as far in advance as possible, but in no event less than twenty-four (24) hours prior to the Services being scheduled to be rendered.
- FEES OF CONTRACTOR & CUDDLY TAILS.
C.1 For the Services described herein, Company shall pay Contractor an amount equal to Eighty Percent (80%) of the gross fee paid by Owner for Services provided to Owner by Contractor, less any credit card processing fee (“Processing Fee”) incurred by Company in processing Owner’s payment. The Processing Fee shall not exceed Two and a Half Percent (2.5%). Contractor shall retain One Hundred Percent (100%) of tips directly assigned to the Contractor by Owner for which no Processing Fee shall apply. Company will collect payment from Owners for the Services provided by Contractor and will remit Contractor’s portion of the payment in accordance with the terms contained herein.
C.2 In addition to the gross fee paid by Owner for the Services, Company will collect from Owner a separate fee in the amount of not more than Two U.S. Dollars ($2.00) for walks, and not more than Five U.S. Dollars ($5.00) for boarding and sitting (collectively the “Service Fees”). Company shall retain One Hundred Percent (100%) of any Service Fees charged by Company to an Owner.
- CUDDLY TAILS DEACTIVATION POLICY.
D.1 Contractor shall comply with all provisions contained in the Company’s Code of Conduct which is attached hereto as EXHIBIT A, and incorporated herein by reference.
D.1.1 Quality of Walker. There are several ways Company measures a Walker’s quality with the most important being (a) Star Ratings, (b) Cancellation Rate and (c) Late Rate.
D.2.2 Walker’s Star Ratings. Owners rate Walkers on a five-star scale and give feedback on how the Services were provided. Walkers can view their current rating within the Company application.
D.2.3 How is a Walker’s rating calculated? A Walker’s rating is based on an average of the number of post-walk stars Owners gave Walker (from 1 to 5 stars), up to the total number of walks Walker has performed for Owners. Company has a minimum average rating in each city in which Walkers provide Services. Company will alert Walker if Walker’s rating is approaching the limit pertaining to the Walker’s city, and Walker will also get information about quality improvement courses that may help improve Walker’s ratings. If Walker’s average rating still falls below the minimum after three (3) notifications from Company, Walker will be deactivated from the Company application and will not be able to provide Services for a period of time as decided by Company.
D.2.4 Walker’s Cancellation Rate. A cancellation is when a Walker accepts a request for Services from an Owner and then cancels an accepted Services date with an Owner. Company understands that there may be times when something comes up that causes a Walker to cancel a Services appointment, but minimizing cancellations is imperative to the success of Walker and the Company.
D.2.5 How is Walker’s Services cancellation rate calculated? Walker’s cancellation rate is based on the number of walks cancelled out of the total number of walks accepted by Walker. Successful Walkers typically have a weekly cancellation rate of less than Five Percent (5%). Each city has a maximum weekly cancellation rate, based on the average cancellation rate of Walkers in that city. Company will alert Walker three (3) times if Walker’s cancellation rate is higher than the cancellation rate in Walker’s City after which Walker will not be able to use the Company Application for new and/or recurring or existing Services opportunities for a period of time as decided by Company. If after returning to the Company Application and providing Services to Owners, the Walker’s cancellation rate continues to exceed the Walker’s city’s maximum limit, Walker will be deactivated from the Company Application.
D.2.6 Late Show-Up Rate. A late show-up is when a Walker accepts a Services appointment and then shows up for the Services appointment at a time in which the Services do not start being rendered within fifteen (15) minutes of the Services’ scheduled start time.
D.2.7 How is Walker’s late show-up rate calculated? Walker’s late show-up rate is based on the number of walks for which a walker is late out of the total number of walks accepted. Successful Walkers typically have a weekly late show-up rate of less than Five Percent (5%). Each city has a maximum weekly late show-up rate based on the average late show-up rate of Walkers in that city. Company will alert walker three (3) times if Walker’s late show-up rate is higher than other walkers in Walker’s city, after which Walker will not be able to use the Company Application for new and/or recurring or existing Services opportunities for a period of time as decided by Company. If after returning to the Company Application, Walker’s late show-up rate continues to exceed the maximum limit for Walker’s city, Walker will be deactivated from the Company Application.
D.2.8 Fraud. Company will deactivate any account from all activity for a period of time as determined by Company (including termination of this Agreement for material breach) associated with fraudulent activity, which may include, but is not limited to: obtaining payment for walks by fraudulent means, such as fraudulent use of promotional codes; encouraging Owners to cancel walks; or fraudulently collecting a fee for wearing Company apparel and/or having the dog wear Company apparel.
D.2.9 Safety. Company uses GPS-tracking technology to track every walk and allow Owners to view the walks on GPS as they occur. Any actions that threaten the safety of Owners, their dogs, and Walkers will be investigated and, if confirmed, will lead to termination of this Agreement for material breach. Company may temporarily deactivate a Walker and/or Owner until any safety issue is resolved.
D.2.10 Non-Compliance with Company’s Code of Conduct. All users of the Company’s Application shall abide by Company’s Code of Conduct if utilizing the Company’s Application. Company may deactivate any Walker who violates the Code of Conduct from use of the Company Application for behavior and/or actions deemed not in compliance with the Company Code of Conduct. The time period of such deactivation may be for a period of time as determined by Company which may be permanent depending upon the actions of Walker.
D.2.11 Tolerance for Drugs & Alcohol. Company has a zero-tolerance policy with respect to the use of drugs and/or alcohol by Walker while providing Services. Any Walker found to be under the influence of drugs and/or alcohol while offering Services under this Agreement will be deactivated, and have this Agreement terminated based on material breach.
D.2.12 Compliance with Law. Walker shall comply with any and all relevant state, federal and/or local laws at all times. Company will deactivate a Walker for being in violation of any relevant laws and Company will deactivate a Walker and terminate this Agreement for material breach for a Walker who engages in any illegal activity while providing Services under this Agreement.
D.2.13 Accurate Personal Information. The Company’s application provides identifying information regarding the Walker to Owner (i.e. Walker’s name and picture). Walker agrees to provide accurate personal information to Company for such purposes. Company will deactivate a Walker for activities such as: providing Company with inaccurate personal information; using a Company account that is registered to another walker and/or allowing others to use the Walker’s Company account.
D.2.14 Background Checks. All Walkers are required to undergo a screening process, which includes a background check, to ensure safety and compliance with Company’s Walker requirements.
D.2.15 Unacceptable Activities. To maintain the transparency and safety of the Company’s application for all users, services conducted under this Agreement that are outside of the monitored system of the Company application are prohibited. Walker agrees to not, under any circumstances, engage in any unauthorized use of Company’s trademarks and/or intellectual property.
D.2.16 Disputes Concerning Deactivation. Any and all disputes concerning the deactivation of Walker’s access to the Company’s Application, will first be subject to good faith negotiations between the parties, and if such good negotiations are not successful, shall be subject to the arbitration provisions of this Agreement.
- CALL & SMS DATA. The Company’s Application allows for communications between Owners and Walkers by phone call and SMS messaging. In connection with such communications, Company receives call data, including the date and time of all calls and/or SMS messages, phone numbers, and the content of any SMS messages. Company reserves the right, to monitor all such data and to monitor all calls between Owners and Walkers made through the Company’s Application.
- PROPERTY RIGHTS OF THE PARTIES.
F.1 Contractor agrees that Company’s confidential information is an asset of the Company. As used herein, the term “confidential information” includes all information and materials belonging to, used by or in the possession of the Company relating to its products, processes, services, technology, inventions, patents, ideas, contracts, financial information, developments, business strategies, pricing, current and prospective customers, marketing plans, and trade secrets of every kind and character. Contractor agrees that all of the confidential information is and shall continue to be the exclusive property of the Company. Contractor agrees that Contractor shall not, at any time following the execution of this Agreement, use or disclose in any manner any confidential information of the Company.
F.2 All records of the accounts of customers of Company shall be the exclusive property of Company. Equipment, books, notes, memoranda, writings, software, records and other items (collectively “Company Materials”) provided to Contractor by Company in performing Contractor’s duties under this Agreement shall be immediately returned to Company by Contractor on any termination of this Agreement.
F.3 Contractor agrees that the sale or unauthorized use or disclosure of any of Company’s trade secrets obtained by Contractor during the term of this Agreement constitutes a breach of this Agreement. For a period of twelve (12) months immediately following the termination or expiration of this Agreement, Contractor shall not directly or indirectly solicit any other contractors and/or employees of the Company in any way. All files, records, documents, drawings, specifications, equipment and similar items relating to the business of Company, whether they are prepared by Contractor or come into Contractor’s possession in any other way and whether or not they contain or constitute trade secrets owned by Company, are and shall remain the exclusive property of Company and shall not be removed from the premises of Company under any circumstances whatsoever without the prior written consent of Company.
F.4 Contractor shall not misuse, misappropriate, or disclose any of the trade secrets or materials of the Company described herein in any way either during the term of this Agreement or at any time thereafter.
- WARRANTIES. Contractor warrants that the Services shall be performed in a timely manner and shall meet any and all deadlines agreed between Contractor and Owner.
- H. INDEPENDENT CONTRACTOR STATUS.
H.1 The Parties intend that the Contractor be engaged as an independent contractor of Company. Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship. The Contractor will not be entitled to worker’s compensation, retirement, insurance or other benefits afforded to employees of the Company. As an independent contractor, Contractor must provide any and all equipment and supplies necessary to provide the Services. Company will provide a software application to Contractor that enables the Owner to track walks via GPS, and send a report to the Owner. Company will also provide Company logs, and t-shirts, caps and dog bandanas (collectively “Company Apparel”) to Contractor should Contractor wish to avail itself of the associated fee for use of same as provided in this Agreement.
H.2 Business Expenses. Contractor may be obligated to expend money for travel or other business expenses, including telephone and automobile expenses, related to providing the Services. Contractor shall be solely liable and responsible for payment of any such expenses.
- REPRESENTATIONS. Both Parties represent that they are fully authorized and empowered to enter into this Agreement, and that the performance of the obligations under this Agreement will not violate or infringe upon the rights of any third-party, or violate any agreement between the Parties and any other person, firm or organization or any law or governmental regulation.
- INDEMNIFICATION. To the extent permitted by law, Contractor will defend, indemnify and hold Company and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless form all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by the Contractor’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth in this Agreement; or the negligence, gross negligence, or willful misconduct of the Contractor in the discharge of his or her duties and responsibilities.
- LIABILITY. Company shall not be liable to the Contractor for any special, indirect, incidental, punitive, or consequential damages arising from or related to this Agreement, including loss of revenue or profits or other benefits, and claims by any third party, even if the Parties have been advised of the possibility of such damages. The foregoing limitation applies to all causes of action in the aggregate, including without limitation to breach of contract, breach of warranty, negligence, strict liability, and other torts. IN NO EVENT SHALL COMPANY BE LIABLE TO CONTRACTOR FOR ANY AMOUNT IN EXCESS OF THE FEES PAID TO CONTRACTOR THROUGH THE COMPANY’S APPLICATION FOR SERVICES RENDERED.
- DISCLAIMER OF WARRANTY. THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE COMPANY HEREUNDER. COMPANY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY DOES NOT PROVIDE ANY WARRANTY THAT OPERATION OF THE COMPANY’S APPLICATION HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE.
- MISCELLANEOUS PROVISIONS.
M.1 Entire Agreement. This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.
M.2 Amendment. This Agreement may be amended only by written agreement duly executed by an authorized representative of Company and Contractor.
M.3 Severability. If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.
M.4 Assignment. This Agreement and the Services contemplated hereunder are personal to Contractor and Contractor shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully assign and transfer this Agreement in whole or part.
M.5 Waiver. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
M.6 Governing Law. This Agreement shall be governed by the laws of the State which Contractor regularly performs the Services without regard to its conflict of laws’ provisions.
M.7 Arbitration of Disputes Required (in lieu of litigation). Any dispute or claim that arises out of or relates to this Agreement, or that relates to the breach of this Agreement or that arises out of or that is based upon this Agreement shall be resolved by arbitration in accordance with the then effective arbitration rules of (and by filing a claim with) the American Arbitration Association (“AAA”) (unless otherwise provided herein), and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. Any such arbitration proceedings shall be conducted at a location within a reasonable distance of the place where Walker provided services under this Agreement, as shall be determined by the Arbitrator, unless the Parties agree in writing otherwise. Before initiating any formal arbitration proceedings, the Parties agree to mediate in good faith any disputes between the Parties for a period of thirty (30) days after the Parties are both made aware of such dispute.
M.7.1 This arbitration provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and shall survive the termination of this Agreement. This Arbitration provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective or representative action.
M.7.2 This Arbitration provision applies, without limitation, to disputes arising out of or related to this Agreement in any way. This Arbitration provision also applies to disputes regarding city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims. This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from this Arbitration provision.
M.7.3 All disputes concerning the enforceability, revocability or validity of this Arbitration provision or any portion of this Arbitration provision shall not be subject to Arbitration in any manner and shall be subject only to the jurisdiction of the courts of competent jurisdiction. The Parties agree that all such disputes (if any) shall be raised and finally determined by the courts prior to any referral of the claims to arbitration in any forum. The disputes and claims set forth below shall also not be subject to arbitration: claims for workers compensation, state disability and unemployment insurance. Claims may be brought before, and remedies awarded by an, administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate.
M.7.4 Starting the Arbitration. All claims in arbitration are subject to the same statutes of limitations that would apply in court. The Party bringing the claims must demand arbitration in writing and deliver the written demand by hand or first-class mail to the other Party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to Company shall be provided to: Cuddlytails Inc., 110 River Drive South apt 1906, Jersey City NJ 07310.
M.7.5 Walker and Company agree to resolve any dispute in arbitration on an individual basis only, and not on a class, collective or private attorney general representative action basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective or representative basis. If at any point the prohibition on private attorney general representative actions portion of this provision is determined to be unenforceable, any such actions shall be severed from this section and such private attorney general representative actions shall be referred to a court of competent jurisdiction for resolution which shall be stayed until such time as all arbitral claims, if any, are fully resolved in arbitration. If at any point any other prohibitions on class, collective or any other claims or issues except those that can be considered or resolved on an individual basis are determined to be unenforceable, the Parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
M.7.6 Each Party will pay the fees for his, her or its own attorneys, subject to any remedies to which that Party may later be entitled under applicable law. If under applicable law, Company is not required to pay all of the arbitrator’s and/or arbitration fees, such fee(s) shall be apportioned equally between the Parties or as otherwise required by applicable law. Any disputes in that regard will be resolved by the arbitrator.
M.7.7 A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error as may be permitted by law.
M.7.8 Walker’s Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of your Agreement with Company. If you do not want to be subject to this Arbitration provision, you may opt out of this Arbitration provision by notifying Company in writing of your desire to opt out, which writing must be dated, signed and delivered by electronic mail to firstname.lastname@example.org, or by U.S. Mail or by any nationally recognized delivery service (i.e. UPS, Federal Express, etc.). In order to be effective, the writing must clearly indicate your intent to opt out of this Arbitration provision and the envelope containing the signed writing must be received (if delivered by hand) or post marked within thirty (30) days of the date this Agreement is executed by you. Should you not opt out of this Arbitration provision within the aforementioned thirty (30) day period, you and Company shall be bound by the terms of this Arbitration provision.
M.8 Notice. All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three (3) days after being sent by U.S. mail, overnight delivery, e-mail or facsimile to the address of the Party to be noticed as set forth herein or to such other address as such Party last provided to the other by written notice.
CONTRACTOR ACKNOWLEDGES THAT HE OR SHE HAS HAD AN OPPORTUNITY TO READ THIS AGREEMENT AND IS VOLUNTARILY EXECUTING THIS AGREEMENT.
BY CHECKING THE BOX, the Parties have agreed and executed this Agreement as of the date first written above.
COMPANY CODE OF CONDUCT
While technology helps ensure the speed, dependability and safety for you to provide your services to Owners, dignity and respect matter most to the Cuddlytails community.
If any matters requires immediate emergency attention, please call the emergency service number (911) in your area at any time any walker believes that they are faced with a situation. Please notify Cuddlytails, once all parties are safe and the situation has been handled by the authorities.
Neighborhood walkers are not supposed to bring another person when providing services to Owners.
PROFESSIONALISM & RESPECT
Cuddlytails maintains a zero-tolerance policy regarding all forms of discrimination, harassment, violence or abuse by Owners or Walkers. Anyone engaging in such conduct shall be prohibited from using the Cuddlytails platform.
All users of Cuddlytails to be mindful of other users’ privacy and personal space. All users of the Cuddlytails platform are expected to act appropriately and respect boundaries. Commenting on appearance, asking overly personal questions and making unwanted physical contact are all considered inappropriate behaviors. Any threats, rude or offensive language, will not be tolerated. It is disrespectful to make derogatory remarks about a person or group. Anyone who solicits or engages in sexual conduct while using the Cuddlytails platform shall also be prohibited from using the Cuddlytails platform.