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 HEY TECHNOLOGIES, Inc. (“HEYFOOD” or “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. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION XI, AS IT REQUIRES THE PARTIES (UNLESS YOU VALIDLY OPT OUT OF ARBITRATION, AS PROVIDED BELOW) TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. 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.
HEYFOOD is a company that provides an online marketplace platform using web-based technology that connects contractors, restaurants and/or other businesses, and consumers (“HEYFOOD platform” or “platform”). HEYFOOD’s software permits registered users to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, HEYFOOD software notifies contractors that a delivery opportunity is available and the HEYFOOD software facilitates completion of the delivery. HEYFOOD 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 HEYFOOD'S platform. CONTRACTOR understands and expressly agrees that they are not an employee of HEYFOOD or any restaurant, other business or consumer and that they are providing delivery and other services on behalf of themself and their business, not on behalf of HEYFOOD. CONTRACTOR understands (i) they are free to select those times they wish to be available on the platform to receive delivery opportunities; (ii) they are free to accept or reject the opportunities transmitted through the HEYFOOD platform by consumers, and can make such decisions to maximize their opportunity to profit; and (iii) they have 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, HEYFOOD and CONTRACTOR (collectively “the parties”) agree as follows:
I. PURPOSE OF THE AGREEMENT
This Agreement governs the relationship between HEYFOOD 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.
CONTRACTOR shall have no obligation to accept or perform any particular “Delivery Opportunity” (as that term is defined herein) offered by HEYFOOD. 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
CONTRACTOR represents that they operate an independently established enterprise that provides delivery and other services, and that they satisfy all legal requirements and have 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 their business and how to perform the Contracted Services.
CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. HEYFOOD 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.
As an independent business enterprise, CONTRACTOR retains the right to perform services (whether delivery services or other services) for others and to hold themself 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 HEYFOOD from doing business with others. HEYFOOD does not have the right to restrict CONTRACTOR from performing services for CONTRACTOR’s own business, other businesses, customers, or consumers at any time, even if such business directly competes with HEYFOOD, and even during the time CONTRACTOR is logged into the HEYFOOD platform. CONTRACTOR’s right to compete with HEYFOOD, or perform services for business that compete with HEYFOOD, will survive even after termination of this Agreement.
CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from HEYFOOD as a condition of doing business with HEYFOOD or entering into this Agreement.
CONTRACTOR agrees to immediately notify HEYFOOD in writing at www.heyfood.africa if CONTRACTOR's right to control the manner or method they use to perform services differs from the terms contemplated in this Section.
III. CONTRACTED SERVICES
From time to time, the HEYFOOD 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 HEYFOOD platform or directly from restaurants or other businesses (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 according to the consumer, restaurant, and/or business specifications, 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, restaurant, and/or other business, not HEYFOOD, 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. Notwithstanding the foregoing, CONTRACTOR agrees to maintain both a customer rating and a completion rate found here as of the date this Agreement becomes effective. Failure to satisfy this obligation constitutes a material breach of this Agreement, and HEYFOOD shall have the right to terminate this Agreement and/or deactivate CONTRACTOR'S account.
CONTRACTOR acknowledges that HEYFOOD 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.
CONTRACTOR acknowledges that CONTRACTOR is engaged in CONTRACTOR’s own business, separate and apart from HEYFOOD’S business, which is to provide an online marketplace platform using web-based technology that connects contractors, restaurants and/or other businesses, and consumers.
CONTRACTOR authorizes HEYFOOD, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or restaurant or other business to assist CONTRACTOR, or facilitate direct communication between CONTRACTOR and the consumer, restaurant, and/or business, to the extent permitted by CONTRACTOR, in facilitating deliveries. However, under no circumstances shall HEYFOOD 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:
HEYFOOD does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
CONTRACTOR does not have a supervisor or any individual at HEYFOOD to whom they report.
CONTRACTOR is not required to use any signage or other designation of HEYFOOD on their vehicle or person at any point in their use of the platform to perform the Contracted Services.
HEYFOOD has no control over CONTRACTOR’s personal appearance.
CONTRACTOR does not receive regular performance evaluations by HEYFOOD.
CONTRACTOR may use whatever payment method they choose to purchase items to be delivered to consumers, including, but not limited to CONTRACTOR's personal credit or debit card, cash or a prepaid card. CONTRACTOR may use, for CONTRACTOR's convenience, the prepaid card solely for purchasing items to be delivered to consumers. If CONTRACTOR chooses to use their personal credit or debit card or cash, CONTRACTOR shall invoice HEYFOOD on a weekly basis and HEYFOOD agrees to pay all invoices within 10 days of receipt.
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.
CONTRACTOR agrees to immediately notify HEYFOOD in writing by submitting a Support inquiry through https://help.HEYFOOD.com/s/ if CONTRACTOR's services or scope of work differ in any way from what is contemplated in this Section.
IV. RELATIONSHIP OF PARTIES
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.
HEYFOOD 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 HEYFOOD have been inserted solely for the safety of consumers and other CONTRACTORS using the HEYFOOD platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
HEYFOOD 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
Unless notified otherwise by HEYFOOD in writing or except as provided herein, CONTRACTOR will receive payment per accurate Contracted Service completed in an amount consistent with the publicly provided pay model, which CONTRACTOR can view here. From time to time, HEYFOOD 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.
HEYFOOD’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. HEYFOOD acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR.
HEYFOOD 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.
Notwithstanding the terms of Section V(1) – (3), fulfillment orders placed directly with restaurants or other businesses rather than through the App or HEYFOOD.com (“Fulfillment Orders”) may be subject to a different payment model. More information regarding Fulfillment Orders may be found here. 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. HEYFOOD's software may not always include an option to add gratuity for Fulfillment Orders; however, consumers can pay a gratuity to CONTRACTOR in cash.
From time to time, HEYFOOD may offer various Dasher promotions or referral programs. CONTRACTOR agrees that they will not manipulate or abuse the referral programs or Dasher promotions by, among other things: (a) tampering with the location feature on their mobile phone; (b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or, (c) creating multiple Dasher 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 their account.
VI. PAYMENT DISPUTES
CONTRACTOR's Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in HEYFOOD’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. HEYFOOD 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 HEYFOOD’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify HEYFOOD in writing at www.heyfood.africa of the challenge and provide HEYFOOD the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of their challenge.
HEYFOOD’s Failure: In the event HEYFOOD 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 HEYFOOD in writing at www.heyfood.africa of the failure and provide a reasonable opportunity to cure it.
VII. EQUIPMENT AND EXPENSES
CONTRACTOR represents that they have 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.
CONTRACTOR agrees that they are 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 their Equipment.
In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the HEYFOOD 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, accepting the terms of this Agreement, separately completing the process to receive Delivery Opportunities, and being eligible to provide the Contracted Services in the geographic location. To the extent CONTRACTOR furnishes their 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.
CONTRACTOR assumes full and sole responsibility for the payment of all amounts due to their 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. HEYFOOD 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 their Personnel. Neither CONTRACTOR nor their Personnel shall receive any wages, including vacation pay or holiday pay, from HEYFOOD, nor shall they participate in or receive any other benefits, if any, available to HEYFOOD's employees.
Unless mandated by law, HEYFOOD 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 their Personnel.
CONTRACTOR and their Personnel shall not be required to wear a uniform or other clothing of any type bearing HEYFOOD's name or logo.
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 HEYFOOD at least 7 days in advance of such Personnel performing the Contracted Services, and CONTRACTOR must notify HEYFOOD when their Personnel will be performing Contracted Services. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR's compliance with the terms of this Agreement.
CONTRACTOR agrees, as a condition of doing business with HEYFOOD, 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 their 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.
NOTIFICATION OF COVERAGE: CONTRACTOR agrees to deliver to HEYFOOD, 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 HEYFOOD at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement.
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 HEYFOOD, including workers’ compensation insurance where required by law. CONTRACTOR acknowledges and understands that CONTRACTOR will not be eligible for workers’ compensation benefits through HEYFOOD 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 Dashers, which HEYFOOD may make available to CONTRACTOR.
HEYFOOD 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 HEYFOOD's actions offering and facilitating the Contracted Services to CONTRACTOR.
CONTRACTOR agrees to indemnify, protect and hold harmless HEYFOOD, 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 their Personnel arising from the performance of delivery services under this Agreement, including personal injury or death to any person (including to CONTRACTOR and/or their 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 HEYFOOD or its parent, subsidiary and/or affiliated companies.
CONTRACTOR agrees to indemnify, protect and hold harmless HEYFOOD, 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.
CONTRACTOR shall be responsible for, indemnify and hold harmless HEYFOOD, 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. TERMINATION OF AGREEMENT
CONTRACTOR may terminate this Agreement upon seven (7) days written notice. HEYFOOD may terminate this Agreement and deactivate CONTRACTOR’S Dasher account only for the reasons set forth in the HEYFOOD Deactivation Policy, which CONTRACTOR expressly agrees to, or for a material breach of this Agreement. Notwithstanding any other provision in this Agreement, HEYFOOD reserves the right to modify the Deactivation Policy if, in HEYFOOD’s good faith and reasonable discretion, it is necessary to do so for the safe and/or effective operation of the HEYFOOD platform. HEYFOOD shall provide notice of any such changes to CONTRACTOR via e-mail. Changes to the Deactivation Policy shall be effective and binding on the parties upon CONTRACTOR’s continued use of the HEYFOOD platform following HEYFOOD’s e-mail notice of such modifications. Nothing will prevent CONTRACTOR from attempting to negotiate an exemption from any modification to the Deactivation Policy.
CONTRACTOR’s and HEYFOOD’s obligations and rights arising under the Mutual Arbitration Provision of this Agreement shall survive termination of this Agreement. Notwithstanding any other provision in this Agreement, the Deactivation Policy is subject to change; such changes shall be effective and binding on the parties upon HEYFOOD’S provision of notice to CONTRACTOR via e-mail.
HEYFOOD may modify this Agreement at any time. When HEYFOOD makes material changes to this Agreement, it will post the revised Agreement on the HEYFOOD Platform and update the “Last Updated” date at the top of the Agreement. HEYFOOD will also provide CONTRACTOR with notice of any material changes before the date the revised Agreement becomes effective. If CONTRACTOR disagrees with the revised Agreement, CONTRACTOR may terminate the Agreement immediately as provided herein. If CONTRACTOR does not terminate the Agreement before the date the revised Agreement becomes effective, CONTRACTOR’s continued access to or use of the HEYFOOD platform will constitute acceptance of the revised Agreement. HEYFOOD may modify information on any website hyperlinked from this Agreement from time to time, and such modifications shall be effective upon posting. Continued use of the HEYFOOD platform after any such changes shall constitute CONTRACTOR’s consent to such changes.