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 XPEDE, Inc. (“XPEDE” 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 Delivery Services.
- Delivery Services shall mean the opportunity to complete deliveries from or pick up to consumers or businesses to or from consumers or businesses in accordance with orders placed by consumers or businesses through the XPEDE platform that the CONTRACTOR accepted.
XPEDE is a company that provides an online platform using web-based technology that connects contractors, businesses, and/or consumers (“XPEDE platform” or “Platform”). XPEDE’s Platform permits registered users to place delivery or pick up orders of envelopes and/or parcel/packages to or from residential and/or commercial business locations. Once such orders are made, XPEDE platform notifies CONTRACTOR that a delivery or pick up engagement is available and the XPEDE platform facilitates completion of the delivery or pick up. XPEDE is not a delivery company or a common or motor carrier. Rather, XPEDE facilitates the delivery or pick up orders of envelopes and/or parcel/packages between the requestors and requestees.
CONTRACTOR is an independent provider or courier of delivery and related services, authorized to conduct the services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates. CONTRACTOR possesses all equipment and Staffs 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 XPEDE platform. CONTRACTOR understands and expressly agrees that they are not an employee of XPEDE, its affiliates or consumer, and that they are providing delivery and other services on behalf of themselves and their business, not on behalf of XPEDE. CONTRACTOR understands (i) they are free to select those times they wish to be available on the platform to receive delivery or pick up opportunities; (ii) they are free to accept or reject the opportunities transmitted through the XPEDE platform by consumers or businesses, 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 or pick ups are performed and the means by which those deliveries or pick ups are completed.
In consideration of the above, as well as the mutual promises described herein, XPEDE and CONTRACTOR (collectively “the parties”) agree as follows:
1. AGREEMENT PURPOSE
This Agreement governs the relationship between XPEDE 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 “Delivery Services” as defined herein. However, nothing in this Agreement requires CONTRACTOR to perform any particular volume of Delivery 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 Engagement” (as that term is defined herein) offered by XPEDE. However, once a Delivery Engagement is accepted, CONTRACTOR shall be contractually bound to complete the Delivery Services in accordance with all consumer specifications and the terms laid out in this Agreement, unless exigent and unforeseen circumstance(s) excused such delivery or pick up
2. CONTRACTOR'S REPRESENTATIONS AND WARRANTIES
As a condition of entering into this Agreement with XPEDE, and as long as CONTRACTOR is performing Delivery Services hereunder, CONTRACTOR represents and warrants to the following:.
- 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 Delivery Services.
- CONTRACTOR agrees to fully perform the Delivery Services in a timely, efficient, safe, and lawful manner. XPEDE shall have no right to, and shall not, control the manner, method or means CONTRACTOR uses to perform the Delivery Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Delivery Services, including determining the manner of pick up, delivery, and route selection.
- As an independent business entity, 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 XPEDE from doing business with others. XPEDE 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 XPEDE, and even during the time CONTRACTOR is logged into the XPEDE platform. CONTRACTOR’s right to compete with XPEDE, or perform services for business that compete with XPEDE, will survive even after termination of this Agreement.
- Age and License. CONTRACTOR is at least 18 years of age and has a valid driver’s license, and/or has the appropriate level of certification necessary or advisable to operate the vehicle used to perform delivery or pick up services.
- CONTRACTOR has a safe driving record
- CONTRACTOR agrees that Delivery Services will be performed in a safe manner and in compliance with all applicable traffic laws, regulations and guidelines. CONTRACTOR agrees not to perform Delivery Services while under the influence, and not to consume alcoholic beverages within a reasonable time before engaging in, or at any time while providing Delivery Services under this Agreement.
- CONTRACTOR acknowledges and agrees that it is responsible for complying with all applicable laws and regulations applicable to its performance of Delivery Services for customers or businesses (including through the use of Subcontractors).
- YCONTRACTOR acknowledges that it may be subject to periodic background and motor vehicle report checks, and may be required to supply proof of license, equipment or insurance upon request, so that XPEDE can verify that CONTRACTOR continues to satisfy the eligibility requirements set forth herein.
- In the event any of the foregoing representations and warranties ceases to be true (“Ineligibility”), XPEDE may immediately suspend CONTRACTOR’s Delivery Services and access to the Driver App until such Ineligibility is cured. XPEDE may terminate this Agreement if such Ineligibility is not cured within 30 days of receiving notice of such Ineligibility or if such Ineligibility is not capable of cure.
- CONTRACTOR acknowledges and agrees that its geo-location information must be provided to XPEDE via the Driver App in order to provide Delivery Services, and that such geo-location information may be monitored and tracked by XPEDE and shared with third parties when CONTRACTOR is logged into and available to receive Delivery Services offers in the Driver App. CONTRACTOR will not falsely report its geolocation, prevent or attempt to prevent the Driver App from reporting its geo-location, or otherwise attempt to circumvent this requirement.
- CONTRACTOR will notify XPEDE immediately in the event any of the foregoing representations and warranties is no longer true.
3. RELATIONSHIP OF PARTIES
- CONTRACTOR specifically desires and intends to operate as an independent delivery service provider.
- The parties acknowledge and agree that this Agreement is between two independent business enterprises that are equal but 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.
- XPEDE shall not have the right to, and shall not, control the manner or the method of accomplishing Delivery Services to be performed by CONTRACTOR. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in XPEDE have been inserted solely for the safety of consumers and other CONTRACTORS using the XPEDE platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
- XPEDE 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.
4. SERVICES BY CONTRACTOR
- During the time you use the XPEDE platform, we will notify CONTRACTOR of the opportunity to complete deliveries or pick up from/to consumers or businesses to/from consumers or businesses in accordance with orders placed by consumers or businesses through the XPEDE platform (hereinafter shall referred to as "Delivery Engagement"). For each Delivery Engagement accepted by CONTRACTOR ("Delivery Services"), CONTRACTOR agrees to retrieve the orders from consumers or businesses on time and safely, ensure the order is accurately filled according to the consumer and/or business specifications, and complete delivery or pick up orders to consumers or businesses in a safe and timely fashion. CONTRACTOR understands and agrees that the parameters of each Delivery Services are established by the consumer and/or business, not XPEDE, 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 Delivery Services when, in the exercise of CONTRACTOR's reasonable discretion and business judgment, it is appropriate to do so. However, CONTRACTOR understands and agrees that, if he/she unreasonably, inappropriately and untimely canceled a particular Delivery Services, CONTRACTOR may be liable and responsible for the “Customer Voucher.” (Customer Voucher shall mean the $5.00 late cancellation fee that is forwarded to the customer as a credit that the driver/courier may be charged if he/she canceled the delivery or pick up engagement beyond the permissible time allowed to make such cancellation, which is usually ten (10) minutes after expressly accepting the delivery or pick up order on the driver/courier app unless the cancellation was imperative and beyond the driver/courier’s control, such as the act of god). Notwithstanding the foregoing, CONTRACTOR agrees to maintain both a customer rating and a completion rate as of the date this Agreement becomes effective. Failure to satisfy this obligation constitutes a material breach of this Agreement, and XPEDE shall have the right to terminate this Agreement and/or deactivate CONTRACTOR'S account.
- CONTRACTOR acknowledges that XPEDE has discretion as to which, if any, Delivery Engagement to offer, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Engagement.
- CONTRACTOR acknowledges that CONTRACTOR is engaged in CONTRACTOR’s own business, separate and apart from XPEDE’S business, which is to provide an online marketplace platform using web-based technology that connects contractors, businesses, and consumers.
- CONTRACTOR authorizes XPEDE, during the course of a Delivery Services, to communicate with CONTRACTOR, consumer, and/or business to assist CONTRACTOR, or facilitate direct communication between CONTRACTOR and the consumer and/or business, to the extent permitted by CONTRACTOR, in facilitating deliveries or pick ups. However, under no circumstances shall XPEDE be authorized to control the manner or means by which CONTRACTOR performs delivery or pick up services or other services contemplated under this agreement. This includes, but is not limited to, the following:
- CONTRACTOR does not have a supervisor or any individual at XPEDE to whom they report.
- CONTRACTOR is not required to use any signage or other designation of XPEDE on their vehicle or person at any point in their use of the platform to perform the Delivery Services.
- XPEDE has no control over CONTRACTOR’s personal appearance.
- CONTRACTOR does not receive regular performance evaluations by XPEDE.
- In the event CONTRACTOR fails to fully perform any Delivery Services ("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.
- Unless otherwise agreed to between XPEDE and CONTRACTOR or as otherwise required by law, XPEDE is not obligated to pay CONTRACTOR any service fees or other payments associated with orders not completed in material compliance with the foregoing. CONTRACTOR will not circumvent or attempt to circumvent the conditions or requirements set forth above.
- CONTRACTOR agrees to immediately notify XPEDE in writing by submitting a support inquiry at firstname.lastname@example.org with subject title: “Independent Contractor Agreement,” if CONTRACTOR's services or scope of work differ in any way from what is contemplated in this Section.
5. CONFIDENTIALITY AND PERSONAL INFORMATION USE RESTRICTIONS
- Confidential Information. The Parties understand that the independent contractor relationship created by this Agreement requires the Parties to disclose and exchange confidential, proprietary, and other sensitive or non-public information regarding their operations or customers (collectively, “Confidential Information”). The Confidential Information of XPEDE includes without limitation: (i) identities and contact information of the consumers and/or businesses; (ii) personal information of customers (such as email, phone number, and address); (iii) fees and billing practices; (iv) strategic plans; (v) marketing and advertising materials; (vi) data regarding methods, formulae, systems, data processes and technology (including rating system); and (vii) agreements, notices and other correspondence between XPEDE and CONTRACTOR. The Confidential Information of CONTRACTOR includes without limitation: (i) equipment; (ii) licenses and other legal authorizations; (iii) business operations; and (iv) marketing and advertising materials. Confidential Information also includes the terms of this Agreement and any fee offer or engagement.
- Use and Disclosure. The Parties agree to use each other’s Confidential Information solely to effectuate their respective obligations hereunder, and will not disclose, release, transfer, make available, or otherwise communicate each other’s Confidential Information to any third parties; provided, however, that Confidential Information may be disclosed to such Party’s Subcontractors who have a need-to know such information to perform their obligations under this Agreement, and are subject to confidentiality obligations at least as restrictive as those herein. Each Party will be responsible for any breach of this provision by its Subcontractors. This Section 5(b) will not apply to Confidential Information which: (i) was in the public domain at the time it was communicated to the recipient or subsequently enters the public domain through no fault of the disclosing Party or recipient; (ii) the recipient can prove was independently developed by recipient or already known to recipient at the time of receipt (without violation of any obligations hereunder); (iii) was rightfully communicated to recipient, free of any obligation of nondisclosure or restriction as to use; or (iv) is required to be disclosed pursuant to judicial order or other compulsion of law, provided that receiving Party will promptly notify the other Party of such requirement, and will comply with any protective or similar order imposed on such disclosure. In the event of an unauthorized disclosure of Confidential Information, the disclosing Party will bear the burden of proving one or more of the foregoing exceptions apply.
- Personal Information Without in any manner limiting the foregoing obligations, CONTRACTOR understands and agrees that (i) the information included in subsections 5(a)(i) and 5(a)(ii) above, and (ii) all other information that driver/courier processes in connection with the provision of Delivery Services that is subject to applicable international, federal, national and state privacy and data protection laws, rules, and regulations pertaining to privacy, data processing and use, data protection, data security, encryption, or confidentiality, including without limitation, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (the “CCPA”) ((i) and (ii) collectively, “Personal Information”) are subject to additional restrictions as set forth below. For the purposes of this Section 5(C), process means any operation or set of operations that are performed on Personal Information, whether or not by automated means.
- The Parties acknowledge and agree that the CONTRACTOR will act as a “Service Provider” and not a “Third Party” for the purposes of CCPA and as such terms are defined in the CCPA in its performance of its obligations pursuant to the Agreement.
- CONTRACTOR shall not (i) sell (as defined in the CCPA) any Personal Information to another business or third party without the prior written consent of XPEDE, (ii) retain, use or disclose Personal Information for any purpose other than for the specific purpose of providing the Delivery Services, including retaining, using, or disclosing Personal Information for a commercial purpose other than providing the Delivery Services, or (iii) retain, use or disclose the Personal Information outside of the direct business relationship between the Parties. For clarity, CONTRACTOR shall not contact customers or businesses beyond what is necessary to fulfill the Services nor download and/or store any Personal Information CONTRACTOR processes in connection with the provision of Delivery Services to customers outside of the Driver App. CONTRACTOR hereby certifies that CONTRACTOR understands the requirements in the preceding sentence and shall comply with them.
- Unless required by applicable law, the CONTRACTOR shall immediately upon written request of XPEDE or in any event immediately after termination of the Agreement delete and procure the deletion of all other copies of Personal Information processed by CONTRACTOR or any of its Subcontractors and provide written certification thereof to XPEDE.
- Ownership. All Confidential Information will remain the exclusive property of the disclosing Party. Nothing in this Agreement will be deemed to grant a Party any rights in or to the Confidential Information disclosed by the other Party, or any part thereof.
- Breach. In the event of a breach of this Section 5, the aggrieved Party will have the right to demand the immediate return of all Confidential Information and recover its actual damages incurred by reason of such breach in accordance with the Arbitration Provision (as defined and set forth in Section 12). The Parties specifically acknowledge that the unauthorized use or disclosure of Confidential Information would result in irreparable harm for which there is no adequate remedy at law, and in such event the aggrieved Party will be entitled to an injunction pending arbitration, or any other remedy available at law or in equity to prevent further unauthorized use or disclosure, and that no bond will be required. Failure to comply with any part of this Section 5 will constitute a material breach of this Agreement.
6. PAYMENT FOR DELIVERY SERVICES & INVOICING
- Unless notified otherwise by XPEDE in writing or except as provided herein, XPEDE will pay CONTRACTOR’s service fees for the Delivery Services in the amounts and pursuant to the terms agreed to between the Parties for each Delivery Services fully and accurately completed. From time to time, XPEDE may offer opportunities for CONTRACTOR to earn more money for performing Delivery Service 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.
- XPEDE’s online credit card Platform 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. XPEDE acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR. XPEDE is not required to collect any minimum gratuity from customers using the Platform, or to remit any gratuities not received and retained from customers.
- XPEDE will process payments made by consumers and transmit to CONTRACTOR. Payments for all deliveries or pick ups completed in a given week will be transferred via Direct Deposit, Zelle, or Paypal (as preferred by CONTRACTOR) on a weekly basis unless it notifies CONTRACTOR otherwise in writing.
- From time to time, XPEDE may offer various Driver promotions or referral programs. CONTRACTOR agrees that they will not manipulate or abuse the referral programs or Driver 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 Driver 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.
7. DISPUTES RELATING TO PAYMENT
Payment by XPEDE to CONTRACTOR under the terms of this Agreement will be deemed complete and accurate unless disputed in accordance with the following requirements. To dispute a payment, CONTRACTOR must submit written notice of the dispute to XPEDE within 30 days of receipt of payment. If the Parties are unable to resolve the dispute, it shall be submitted to arbitration in accordance with Section 12 below.
- CONTRACTOR's Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in XPEDE’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumers, businesses, CONTRACTOR, and any other party with information relevant to the dispute. XPEDE 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 XPEDE’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify XPEDE in writing of the challenge and provide XPEDE the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of their challenge.
- XPEDE’s Failure: In the event XPEDE 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.
8. EQUIPMENT AND EXPENSES
- CONTRACTOR represents that they have or can lawfully acquire all equipment, including vehicles, smartphone, dolly (if needed), etc. ("Equipment"), necessary for performing Delivery 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 acknowledges and agrees that it is solely responsible for all costs and expenses arising from its performance of Delivery Services, including but not limited to costs related to Subcontractors, equipment, motor vehicle violations or violations based on the use of other modes of transport, and property damage or loss. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to any equipment used to perform Delivery Services.
- . CONTRACTOR understands that data-enabled smartphone with data plan. Network access must be generally available at all times while CONTRACTOR is performing Delivery Services. WIFI-only data access is not sufficient. The smartphone may not be jailbroken (if iPhone) or rooted (if Android), or otherwise altered to circumvent requirements or processes of the Driver App.
9. SUBCONTRACTOR AND STAFFS
- In order to perform any Delivery Services, CONTRACTOR might be asked, for the safety of consumers on the XPEDE platform, pass a background check administered by a third-party vendor, subject to CONTRACTOR's lawful consent. CONTRACTOR is not required to perform any Delivery 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 Delivery 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 Delivery Services in the geographic location. To the extent CONTRACTOR furnishes their own employees or subcontractors (collectively “Staffs”), CONTRACTOR shall be solely responsible for the direction and control of the Staffs it uses to perform all Delivery Services.
- CONTRACTOR assumes full and sole responsibility for the payment of all amounts due to their Staffs 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 Staffs employed by CONTRACTOR in the performance of Delivery Services under this Agreement. XPEDE shall have no responsibility for any wages, benefits, expenses, or other payments due CONTRACTOR's Staffs, nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to CONTRACTOR or their Staffs. Neither CONTRACTOR nor their Staffs shall receive any wages, including vacation pay or holiday pay, from XPEDE, nor shall they participate in or receive any other benefits, if any, available to XPEDE's employees.
- Unless mandated by law, XPEDE 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 Staffs.
- CONTRACTOR and their Staffs shall not be required to wear a uniform or other clothing of any type bearing XPEDE's name or logo.
- If CONTRACTOR uses the services of any Staffs to perform the Delivery Services, CONTRACTOR's Staffs must satisfy and comply with all of the terms of this Agreement, which CONTRACTOR must make enforceable by written agreement between CONTRACTOR and such Staffs. A copy of such written agreement must be provided to XPEDE at least 7 days in advance of such Staffs performing the Delivery Services, and CONTRACTOR must notify XPEDE when their Staffs will be performing Delivery Services. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR's compliance with the terms of this Agreement.
10. VEHICLE INSURANCE
- CONTRACTOR agrees, as a condition of doing business with XPEDE, that during the term of this Agreement, CONTRACTOR will maintain current insurance, in amounts and of types required by law to provide the Delivery Services, including commercial automobile insurance, at CONTRACTOR 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: CONTRACTOR agrees to deliver to XPEDE, 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 XPEDE at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement.
- Worker’s 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 XPEDE, including workers’ compensation insurance where required by law. CONTRACTOR acknowledges and understands that CONTRACTOR will not be eligible for workers’ compensation benefits through XPEDE 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 Drivers/Couriers, which XPEDE will make available to CONTRACTOR where required by law. XPEDE reserves the right to require that it be named as an additional insured on any policy required herein.
- XPEDE 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 XPEDE's actions offering and facilitating the Delivery Services to CONTRACTOR.
- CONTRACTOR agrees to indemnify, protect and hold harmless XPEDE, 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 Staffs arising from the performance of delivery or pick up services under this Agreement, including personal injury or death to any person (including to CONTRACTOR and/or their Staffs), 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 XPEDE or its parent, subsidiary and/or affiliated companies.
- CONTRACTOR agrees to indemnify, protect and hold harmless XPEDE, 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 Staffs.
- CONTRACTOR shall be responsible for, indemnify and hold harmless XPEDE, 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.
12. MUTUAL ARBITRATION PROVISION
- CONTRACTOR and XPEDE mutually agree to this Mutual Arbitration Provision, which is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) and shall apply to any and all disputes arising out of or relating to this Agreement, CONTRACTOR’s classification as an independent contractor, CONTRACTOR’s provision of Delivery Services to consumers and/or businesses, the payments received by CONTRACTOR for providing services to consumers and/or businesses, the termination of this Agreement, and all other aspects of CONTRACTOR's relationship with XPEDE, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans With Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Federal Credit Reporting Act (or its state or local equivalents), Telephone Consumer Protection Act (or its state or local equivalents), or Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state or local claims arising out of or relating to CONTRACTOR’s relationship or the termination of that relationship with XPEDE. The parties expressly agree that this Agreement shall be governed by the FAA even in the event CONTRACTOR and/or XPEDE are otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator. If for any reason the FAA does not apply, the state law governing arbitration agreements in the state in which the CONTRACTOR operates shall apply.
- CONTRACTOR and XPEDE agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. CONTRACTOR and XPEDE therefore agree that, before either CONTRACTOR or XPEDE demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If CONTRACTOR is represented by counsel, CONTRACTOR’s counsel may participate in the conference, but CONTRACTOR shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify XPEDE that CONTRACTOR intends to initiate an informal dispute resolution conference, email email@example.com and subject title: “Driver Dispute Resolution,” providing CONTRACTOR’s name, the telephone number associated with CONTRACTOR’s Driver account (if any), the email address associated with CONTRACTOR’s Driver account, and a description of CONTRACTOR’s claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
- If, following the informal resolution process, either CONTRACTOR or XPEDE wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery or pick up within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought and (4) the amount in controversy. Any demand for arbitration by CONTRACTOR must be delivered to the counsel who represented XPEDE in the informal resolution process, or if there was no such counsel, then to Legal Department, XPEDE, Inc., 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843.
- Arbitration Class Action Waiver. CONTRACTOR and XPEDE mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action—including but not limited to actions brought pursuant to the Private Attorney General Act (“PAGA”), California Labor Code section 2699 et seq., and any request seeking a public injunction—and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action, or to award relief to anyone but the individual in arbitration (“Arbitration Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the CPR Rules, as defined below, any claim that all or part of this Arbitration Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Arbitration Class Action Waiver is unenforceable, the class, collective and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Arbitration Class Action Waiver that is enforceable shall be enforced in arbitration. All other disputes with respect to whether this Mutual Arbitration Provision is unenforceable, unconscionable, applicable, valid, void or voidable, and all disputes regarding the payment of arbitrator or arbitration organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. For sake of clarification only, nothing in this paragraph shall be construed to prohibit settlements on a class-wide, collective, and/or representative basis.
- CONTRACTOR agrees and acknowledges that entering into this Mutual Arbitration Provision does not change CONTRACTOR’s status as an independent contractor in fact and in law, that CONTRACTOR is not an employee of XPEDE or its customers and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
- Any arbitration shall be governed by the CPR Administered Arbitration Rules and, when applicable, the CPR Employment-Related Mass-Claims Protocol (together, the “CPR Rules”) of the International Institute for Conflict Prevention & Resolution, except as
- The arbitration shall be heard by one arbitrator (the “Arbitrator”) selected in accordance with the CPR Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute.
- If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within 45 miles of CONTRACTOR’s residence as of the effective date of this Agreement or via video conference through such third party provider(s), such as Zoom, Webex, etc., where it is reasonably safe for the parties involved due to Covid-19 or related outbreak.
- The CPR fee schedule will apply with the following exceptions. Unless applicable law provides otherwise, in the event that XPEDE and CONTRACTOR have agreed to this Mutual Arbitration Provision, XPEDE and CONTRACTOR shall equally share filing fees and other similar and usual administrative and Arbitrator costs, as are common to both court and administrative proceedings.
- The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party's claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
- Except as provided in the Arbitration Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
- The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
- The Arbitrator's decision or award shall be in writing with findings of fact and conclusions of law.
- The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensitive information. Subject to the discretion of the Arbitrator or agreement of the parties, any person having a direct interest in the arbitration may attend the arbitration hearing. The Arbitrator may exclude any non-party from any part of the hearing
- Either CONTRACTOR or XPEDE may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
- Nothing in this Mutual Arbitration Provision prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Mutual Arbitration Provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. XPEDE will not retaliate against CONTRACTOR for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act. Disputes between the parties that may not be subject to predispute arbitration agreement, including as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Mutual Arbitration Provision.
- The CPR Rules may be found at www.cpradr.org or by searching for “CPR Administered Arbitration Rules” and “CPR Employment-Related Mass-Claims Protocol” using a service such as www.google.com or www.bing.com or by asking XPEDE’s General Counsel to provide a copy (by submitting a written request to XPEDE, Inc., Attn: Legal Department, 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843.
- CONTRACTOR’s Right to Opt Out of Mutual Arbitration Provision. Arbitration is not a mandatory condition of CONTRACTOR’s contractual relationship with XPEDE, and therefore CONTRACTOR may submit a statement notifying XPEDE that CONTRACTOR wishes to opt out and not be subject to this MUTUAL ARBITRATION PROVISION. In order to opt out, CONTRACTOR must notify XPEDE in writing of CONTRACTOR's intention to opt out by sending a letter, by First Class Mail, to XPEDE, Inc., Attn: Legal Department, 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843. Any attempt to opt out by email will be ineffective. The letter must state CONTRACTOR's intention to opt out. In order to be effective, CONTRACTOR's opt out letter must be postmarked within 30 days of the effective date of this Agreement, which is the date CONTRACTOR applied or signed up as a Driver/Courier through the Xpede platform. The letter must be signed by the CONTRACTOR himself/herself, and not by any agent or representative of CONTRACTOR. The letter may opt out, at most, only one CONTRACTOR, and letters that purport to opt out multiple CONTRACTORS will not be effective as to any. No CONTRACTOR (or their agent or representative) may effectuate an opt out on behalf of other CONTRACTORS. If, at the time of CONTRACTOR’s receipt of this Agreement, CONTRACTOR was bound by an existing arbitration agreement with XPEDE, that arbitration agreement will continue to apply to any pending litigation, even if CONTRACTOR opts out of this Arbitration Agreement. If CONTRACTOR opts out as provided in this paragraph, CONTRACTOR will not be subject to any adverse action from XPEDE as a consequence of that decision and they may pursue available legal remedies without regard to this Mutual Arbitration Provision. If CONTRACTOR does not opt out within 30 days of the effective date of this Agreement, CONTRACTOR and XPEDE shall be deemed to have agreed to this Mutual Arbitration Provision. CONTRACTOR has the right to consult with counsel of CONTRACTOR's choice concerning this Mutual Arbitration Provision (or any other provision of this Agreement).
- Except as specified in the prior paragraph, this Mutual Arbitration Provision supersedes any and all prior arbitration agreements between CONTRACTOR and XPEDE and is the full and complete agreement relating to the formal resolution of disputes covered by this Mutual Arbitration Provision. In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
13. LITIGATION CLASS ACTION WAIVER
To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 12, CONTRACTOR agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because CONTRACTOR opted out of the Mutual Arbitration Provision or any other reason, 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 attorneygeneral 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.
14. PROPRIETARY RIGHTS AND LICENSES
- XPEDE hereby grants CONTRACTOR a non-exclusive, non-transferable, nonsublicensable, revocable license to use the XPEDE platform solely for their lawful use to perform the Delivery Services in accordance with these terms of this Agreement. XPEDE retains all rights, title, and interest in and to the XPEDE platform and its other intellectual property rights therein. Any such license shall terminate upon termination of this Agreement.
- CONTRACTOR acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information provided by CONTRACTOR to XPEDE regarding the XPEDE platform are provided freely and shall become the sole property of XPEDE. XPEDE shall own exclusive rights of such Submissions, including all intellectual property rights therein, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to CONTRACTOR.
- All copyright, database rights, trademarks (whether registered or unregistered), design rights (whether registered or unregistered), patent applications, patents, and other intellectual property rights of any nature in the XPEDE platform together with the underlying Platform code and any and all rights in, or derived from the XPEDE platform are proprietary and owned either directly by XPEDE or by XPEDE’s licensors and are protected by applicable intellectual property and other laws. CONTRACTOR agrees that they will not use such proprietary information, materials, or intellectual property rights in any way whatsoever except for by use of the XPEDE platform to perform the Delivery Services in compliance with the terms of this Agreement. No portion of the XPEDE platform may be reproduced in any form or by any means, except as expressly permitted in the terms of this Agreement. CONTRACTOR agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the XPEDE platform or any intellectual property rights therein in any manner, and CONTRACTOR shall not exploit the XPEDE platform or any intellectual property rights therein in any unauthorized way whatsoever.
XPEDE may modify this Agreement at any time. When XPEDE makes material changes to this Agreement, it will post the revised Agreement on the XPEDE Platform and update the “Last Updated” date at the top of the Agreement. XPEDE 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 XPEDE platform will constitute acceptance of the revised Agreement. XPEDE 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 XPEDE platform after any such changes shall constitute CONTRACTOR’s consent to such changes.
16. TERMINATION OF AGREEMENT
CONTRACTOR may terminate this Agreement upon ten (10) days written notice. XPEDE may terminate this Agreement and deactivate CONTRACTOR’S Driver account only for the reasons set forth in the XPEDE’s Deactivation Policy, which CONTRACTOR expressly agrees to, or for a material breach of this Agreement. Notwithstanding any other provision in this Agreement, XPEDE reserves the right to modify the Deactivation Policy if, in XPEDE’s good faith and reasonable discretion, it is necessary to do so for the safe and/or effective operation of the XPEDE platform. XPEDE shall provide notice of any such changes to CONTRACTOR via email. Changes to the Deactivation Policy shall be effective and binding on the parties upon CONTRACTOR’s continued use of the XPEDE platform following XPEDE’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 XPEDE’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 XPEDE’S provision of notice to CONTRACTOR via e-mail.
17. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
- Voluntary Action and Legal Advice. Each party hereby declares and represents that he, she or they have carefully read this Agreement and that he, she or they freely and voluntarily enter into the same. The Parties acknowledge and agree that they each have the right to separate and independent legal counsel during at all stages of the negotiation, preparation and drafting of this Agreement.
- Full Force and Effect. The Parties expressly consent that this Agreement shall be given full force and effect according to each and every of its express terms and provisions. Each party hereto agrees to execute and deliver any and all documents reasonably necessary or required to effectuate the intent or purpose of this Agreement.
- Interpretation. The Parties agree and acknowledge that this Agreement, and each term, condition and provision hereto, is fair, just and equitable, and is freely and voluntarily entered into in the absence of coercion and duress. It is to be fairly and equitably interpreted or construed in any and all proceeding as if drafted by all Parties hereto jointly.
- 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.
- Severability. 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.
- Applicable Law and Interpretation. Except for the Mutual Arbitration Provision above, which is governed by the Federal Arbitration Act, 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 12, whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable California law; but if any provision of this Agreement shall be disallowed or determined to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and such illegal or invalid part, term or provision shall not be deemed to be part of this Agreement.
- Notice and Curing Opporturnity. CONTRACTOR agrees to notify XPEDE in writing at firstname.lastname@example.org 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 manner from what is contemplated in this
- Effective Date. The effective date of this Agreement shall be the date CONTRACTOR applied or signed up as a Driver/Courier through the Xpede platform.
BY ACCEPTING THIS AGREEMENT TO USE XPEDE’S PLATFORM AND SERVICES, YOU ACKNOWLEDGE, REPRESENT AND WARRANT THAT YOU HAVE READ THIS AGREEMENT CAREFULLY AND FULLY UNDERSTOOD ITS CONTENT. YOU FURTHER ACKNOWLEDGE THAT HAVE AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT AND YOU HAVE TAKEN THE TIME NECESSARY TO SEEK ASSISTANCE AND/OR LEGAL ADVICE REQUIRED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT. PARTICULARLY THE MUTUAL ARBITRATION PROVISION IN SECTION 12 ABOVE AS IT REQUIRES THE PARTIES TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION.