By accepting rides, interacting with Customers, or otherwise participating in the Services, Network Member agrees to be bound by the terms and conditions set for in this Agreement. If the Network Member does not agree to the terms and conditions set forth in this Agreement, then Network Member may not accept rides, interact with Customers, or otherwise participate in the Services.
NOW THEREFORE, in consideration of these Recitals and the mutual promises, covenants and conditions hereinafter set forth, the Parties hereto agree as follows:
- Purpose of Agreement; Price. The Parties anticipate that Network Member may perform Services for Company’s Customers from time to time. For such Services Company shall compensate Network Member at an agreed upon rate. The initial agreed upon rates for Services are included with your Network Member Agreement and is incorporated by this reference. Network Member Agreement may be updated by the Parties from time to time. Network Member Agreement will be valid for the current calendar year or portion thereof. Network Member warrants and represents that Network Member Profile information contained on Exhibit A is true and correct to the best of Network Member’s knowledge and belief.
- Network Member’s Invoice & Monthly Accounting Summary. Unless otherwise provided in Exhibit A, Network Member shall provide Company an itemized invoice for all Services rendered by Network Member within forty-eight (48) hours of Service completion. Company reserves the right to reject charges if Network Member fails to provide said invoice within forty-eight (48) hours of Service completion. In addition to the invoice, Network Member shall provide Company with a written monthly accounting summary of all Services rendered for each calendar month in which any Service occurs. The monthly accounting summary shall be submitted to Company on or before the tenth(10th) business day of the next month. Company will compensate Network Member for Services rendered within thirty (30) days of Company’s receipt of Network Members’ monthly accounting summary provided that Company does not dispute any charges.
- Prohibition on Direct Billing. The Parties specifically acknowledge and agree that Network Member shall not, under any circumstances, bill the Customers for Services provided pursuant to this Agreement.
- Services. The Parties specifically acknowledge and agree that the Network Member shall provide the services in strict compliance with Standards of Service (URL), which is attached hereto and incorporated by this reference (the “Services”).
- Relationship of Parties. Network Member will perform all Services as an independent contractor. Neither this Agreement nor Network Member’s performance of Services shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between Company and Network Member. Neither Party will have the right, power or authority (whether expressed or implied) to enter into or assume any duty or obligation on behalf of the other Party. Network Member shall represent itself only as an independent contractor to third-parties when performing Services. In no event shall Network Member be considered as having employee status or as being entitled vacation pay, sick leave, retirement benefits, social security, workers’ compensation, disability or unemployment insurance benefits of any kind. Network Member is not entitled to participate in any plans, arrangements, or distributions by Company or its subsidiary companies pertaining to or in connection with any pension, stock, bonus, profit-sharing or similar benefits established for Company’s employees. Network Member acknowledges that it shall not be treated by Company as an employee for purposes of the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, Federal income tax withholding or any similar law or laws enacted by the Federal government or any state government. Network Member further acknowledges that it shall not be entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by the independent contractor or some other entity other than Company and the independent contractor is obligated to pay federal and state income tax on any moneys paid pursuant to this contractual relationship. Network Member shall be responsible for compliance with these laws. At year end, Company shall issue to Network Member an IRS Form 1099 certifying the total fees paid to Network Member by Company during each calendar year. The Form 1099 shall be issued using the employer identification number or such other number provided to Company by Network Member, below. Network Member further agrees not to perform any act, take any action, or fail to take any action which shall in any way damage Company or its business reputation or which shall subject Company to any damages, losses, injuries, suits or legal proceedings.
- Term and Termination. This Agreement shall become operative and effective on the Effective Date and shall continue for one (1) year (“Initial Term”) or until terminated under the terms provided herein. However, until the Parties negotiate a new agreement or terminate this agreement, the terms and conditions of this Agreement apply. Thereafter, this Agreement shall remain in full force and effect from month to month until terminated by either party by giving the other party at least thirty (30) days prior written notice of termination. However, during such notice period, Company shall remain responsible for charges incurred for Services provided through the notice period and Network Member shall continue to provide Services during said notice period. During the Initial Term, either Party may terminate this Agreement upon a material breach by the other Party, provided that the party claiming a breach shall give written notice to the other party of the material breach and an opportunity to cure. If, and only if, a material breach is not cured within thirty (30) days of written notice, the Agreement shall terminate. Either party may terminate this Agreement upon five (5) days’ notice if the other party becomes bankrupt or commits an act of bankruptcy.
- No Exclusivity. Company shall not be obligated to utilize Network Member for any of its transportation services needs, and shall be free in its sole discretion to order the same or similar services from any other transportation service providers. Network Member is likewise free to dispose of such portion of its entire time, energy, and skill during regular business hours, in such manner as Network Member sees fit and to such persons, firms, or corporations as it deems advisable.
- Assignment. This Agreement shall not be assignable by Network Member. Network Member may not subcontract any portion of the Services covered under this Agreement without the prior written consent of Company, which it may grant or deny in its sole discretion. Company’s approval of a subcontractor shall not constitute a waiver of any rights Company may have based on Network Member’s representations and warranties. Network Member will be fully responsible for all acts and omissions of its subcontractors. Nothing in this Agreement shall be construed to create any contractual relationship between Company and any subcontractor, nor any obligation on the part of Company, to pay or to ensure the payment of any money due any subcontractor. Company may, with notice to Network Member, assign this Agreement or any of its rights or interests hereunder, or delegate any of its obligations hereunder. Any attempted assignment or delegation in contravention of this Section shall be null and void, and of no force or effect.
- Confidentiality. Network Member agrees that, except as required in its duties to Company, it will not, during the term of this Agreement and for all times subsequent, directly or indirectly, use, disseminate, or disclose any “Confidential Information” concerning the business or clients of Company to any third-party.
- “Confidential Information” means information disclosed to Network Member or known by Network Member as a consequence of or through the performance of its Services under this Agreement, not generally known in the transportation industry, about Company’s or each of its client’s services or processes including, but not limited to, information as to client lists, research and development, marketing techniques, pricing policies, financial information and the terms of this Agreement. Network Member may, however, disclose Confidential Information to its employees who have a need to know the Confidential Information to perform work for Company, provided that Member shall use reasonable efforts to ensure that the Confidential Information is not duplicated or disclosed by its employees. Network Member may also disclose the Confidential Information to independent contractors, auditors, and professional advisors who have a need to know it in order to perform Services for Company, provided that any such persons first agree in writing to be bound by the confidentiality obligations substantially similar to the obligations placed on the Network Member in this Section. Notwithstanding the previous sentence, in no event shall Member disclose the Confidential Information to any competitor of Company.
10. Indemnification. To the fullest extent permitted by law, Network Member shall defend, indemnify and hold harmless Company and its employees from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from:
10.1. Performance of the Network Member’s performance of Services, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, including loss of use resulting therefrom, cause in whole or in part by negligent acts or omissions of the Network Member, the Member’s subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, including but not limited to personnel, regardless of whether or not such claim, damage, loss or expense is caused in part by a Party indemnified hereunder.
10.2. Any claim made by Personnel. Such claims include but are not limited to those seeking unpaid wages or gratuities, and other employment-related claims such as those alleging employment misclassification, discrimination, harassment or retaliation of any sort.
10.3. In claims against any person or entity indemnified under this Section 10 by an employee of the Network Member, the Network Member’s subcontractors, personnel, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section 10 shall not be limited by a limitation on amount or type of damages, compensation, or benefits payable by or for the Network Member or the Network Member’s subcontractors under Workers’ or Workmen’s Compensation Acts or other employee benefit acts.
10.4. Network Member waives all rights against Company and Company’s agents, officers, directors and employees for recovery of damages to the extent that these damages are covered by commercial general liability umbrella liability, business auto liability or workers compensation and employers liability maintained per insurance requirements stated in Section 13. Insurance Requirements.
10.5. Nothing in this Section 10 shall be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a Party or person described herein.
11.1. Company’s Customers. Network Member agrees that, for a period of thirty-six (36) months after termination of this Agreement, Network Member will not, in any manner, directly or indirectly, either as owner, officer, employer, employee, independent contractor, stockholder, agent, principal, manager, consultant, partner (or otherwise), contact, communicate, divert, solicit or secure, otherwise attempt to secure, the business of any Customer for the benefit of Network Member or for the benefit of any third party. For purposes of this Section, the term “Customer” includes, but is not limited to, persons or entities (i) who were customers of Company prior to or during Network Member’s Agreement with Company, (ii) who became customers within six months after Network Member’s termination of services, (iii) who were prospective customers of Company, as evidenced by bids, proposals or presentations made by Company, or (iv) who Network Member became aware or learned of or was introduced to as a direct or indirect result of Network Member’s Agreement with Company or within such six month period thereafter. Network Member acknowledges and agrees that this Agreement does not prohibit or prevent Network Member from competing with the business of Company, but shall prohibit Network Member from soliciting or securing the business of Company’s Customers, as set forth herein.
11.2. Company’s Employees. Network Member agrees that, for a period of thirty-six (36) months after the termination of this Agreement, Network Member will not, in any matter, directly or indirectly, either as owner, officer, employer, employee, independent contractor, stockholder, agent, principal, manager, consultant, partner (or otherwise), induce any contractor or employee of Company to leave Company’s service, or to breach any agreement with Company, in order to accept engagement in a business or enterprise to which Network Member become affiliated during such period, whether or not such enterprise competes with Company’s businesses.
12. Limitation of Liability. Except to the extent otherwise expressly stated in this Agreement, and only to the extent permitted by applicable law, neither Party will be liable to the other Party or to any person or entity claiming through the other Party, for lost profits or for special, incidental, indirect, consequential or exemplary damages arising out of or in any manner connected with this Agreement or the subject matter thereof, regardless of the form of action and whether or not such Party has been informed of, or otherwise might have anticipated, the possibility of such damages. The Limitations of Liability set forth in this Agreement shall not apply to damages, (i) resulting from the gross negligence, or the willful or intentional misconduct of a Party or its personnel, (ii) stemming from personal injury, death, or property damage caused by a Party or its personnel, (iii) arising from claims for which either Party has agreed to indemnify the other party pursuant to the provisions of this Agreement, or (iv) arising from either Party’s breach of its obligations regarding confidentiality.
14. Personnel Compliance.
14.1. Network Member represents and warrants to Company that Network Member maintains and effectively administers comprehensive policies and procedures for qualifying its personnel assigned to provide Services for Company (“Personnel”), and that such policies and procedures include, but are not limited to, work authorization verification, background checks of such Personnel’s employment history and criminal convictions, and pre-employment and random drug testing, review of motor vehicle drivers’ license records, Department of Transportation Hours of Service Safety Logs, licenses and permits, and that Network Member and its employees adhere to existing law. Network Member further represents and warrants to Company that (i) through its personnel policies and procedures, it endeavors to employ the best qualified candidates with appropriate character and honesty; and (ii) it has established and effectively administers ongoing controls and procedures to ensure that Personnel are authorized to work throughout such assignment in accordance with all applicable immigration laws and that Service Provider complies with such laws. Upon request, Network Member will provide Company with written evidence of work authorization for any or all Personnel and its compliance with applicable immigration laws. In the United States, applicable immigration laws include, but are not limited to, as amended, the Immigration and Reform Act of 1986, the Immigration and Nationality Act, the L-1 Visa (Intracompany Transferee) Reform Act of 2004, and the H-1B Visa Reform Act of 2004.
14.2. Network Member has directed its Personnel not to hold themselves out as employees or agents of Company and not to seek to be treated as employees of Company for any purpose, including claims of entitlement to fringe benefits provided by Company, or for disability income, social security taxes or benefits, Federal unemployment compensation taxes, State unemployment insurance benefits or Federal income tax withholding at source. Network Member will file all applicable tax returns for Personnel in a manner consistent with its status as an independent contractor of services; and Network Member will make all required payments and deposits of taxes in a timely manner.
14.3. Network Member warrants and represents to Company that the Personnel involved in Services do not sell, distribute, transfer, manufacture, process, possess, or use illegal drugs, or report to duty under the influence of illegal drugs, or misuse alcohol or legal drugs during the performance of Services for Company.
14.4. Network Member will not use any Personnel that it knows, suspects, or has reason to believe has been convicted of, pled guilty to, or participated in a pretrial diversion for, a crime of involving dishonesty, breach of trust, money laundering, or any other type of crime that is related to the Services. Network Member’s Personnel may be subjected to Company’s policies, including the completion and successful “pass” of a criminal background check (that may include fingerprinting), as a condition for performing Services. Each criminal background check will be subject to Company’s standards and be conducted at the Network Member’s expense.
14.5. Network Member’s Personnel shall also comply with Company policies concerning safety, cleanliness of the vehicle, courteous service, and uniform requirements, as those policies may be amended from time to time. All of Network Member’s operators used to provide the Services shall be appropriately trained and licensed in vehicle operation.
- Notices. Any notice or communication required to be delivered shall be in writing addressed to the Party to be notified, and shall be delivered by depositing it with a nationally recognized overnight delivery service or in the United States mail, postage prepaid, to the address listed at the outset of this Agreement.
- Severability. In the event any one or more of the provisions of this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it.
- Agreement Binding, Integration Clause. This Agreement, along with exhibits either attached hereto or incorporated by reference, shall be binding upon the Parties and their permitted legal representatives, successors and assigns. This Agreement contains the entire understanding of the parties and supersedes all previous verbal and written agreements. There are no other agreements, representations, or warranties other than as set forth herein. This Agreement may be amended only by a written instrument executed by the parties. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein.
- Governing Law, Venue, Attorneys’ fees. This Agreement and all matters and issues collateral thereto shall be construed according to the laws of the State of Colorado. The parties agree that the District Court of Arapahoe County, Colorado, shall have exclusive jurisdiction, including in personam jurisdiction, and shall be the exclusive venue for any and all controversies and claims arising out of or relating to this Agreement or a breach thereof, except as otherwise unanimously agreed upon by the parties. If any party shall commence any action or proceeding against another party in order to enforce the provisions hereof, or to recover damages as the result of the alleged breach of any of the provisions hereof, the prevailing party therein shall be entitled to recover all reasonable costs incurred in connection therewith, including, but not limited to, reasonable attorneys’ fees.
- Force Majeure. Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of God, government restrictions, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, or communications failure).
- No Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein.
- Survival. The Parties acknowledge and agree that Sections 9, 10, 11 and 18 shall survive the Termination of this Agreement for a period of three (3) years.
- Electronic Signatures, Counterparts & Facsimile/E-mail. For the convenience of the parties, any number of counterparts of this Agreement may be executed by any one or more parties hereto, and each such executed counterpart shall be, and shall be deemed to be, an original, but all of which shall constitute, and shall be deemed to constitute, in the aggregate but one and the same instrument. The Agreement may be circulated for signature through e-mail, facsimile transmission and all signatures, including electronic signatures, so obtained and transmitted shall be deemed for all purposes under this Agreement to be original signatures until such time as original counterparts are exchanged by the parties.
BLK Automotive (“Flying Horse Worldwide”)
5913 N. Nevada Ave
Colorado Springs, CO 80918
+1 (800) 844-1146
This document was last updated on January 1, 2023
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