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 AirGarage, Inc. (“AIRGARAGE” 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. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
RECITALS
AIRGARAGE provides a web-based parking management solution that allows parking garage and lot owners or operators (“Parking Operators”) to register parking spots, set parking prices, advertise and lease its identified parking spaces and connect with automobile owners and drivers (“Drivers”) and related setup and ongoing services. Once parking spots are enforceable, AIRGARAGE software shows that an enforcement opportunity is available and the AIRGARAGE software facilitates completion of the enforcement.
CONTRACTOR is an independent provider of enforcement 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 enforcement opportunities made available through AIRGARAGE'S platform. CONTRACTOR understands and expressly agrees that they are not an employee of AIRGARAGE or any parking lot, other business or consumer and that they are providing enforcement and other services on behalf of themself and their business, not on behalf of AIRGARAGE. CONTRACTOR understands (i) they are free to select those times they wish to be available on the platform to enforce; (ii) they are free to accept or reject the opportunities transmitted through AIRGARAGE, and can make such decisions to maximize their opportunity to profit.
In consideration of the above, as well as the mutual promises described herein, AIRGARAGE and CONTRACTOR (collectively “the parties”) agree as follows:
I. PURPOSE OF THE AGREEMENT
- This Agreement governs the relationship between AIRGARAGE 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 enforcement opportunity offered by AIRGARAGE.
II. CONTRACTOR'S OPERATIONS
- CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. AIRGARAGE 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.
- CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from AIRGARAGE as a condition of doing business with AIRGARAGE or entering into this Agreement.
III. CONTRACTED SERVICES
- CONTRACTOR authorizes AIRGARAGE, during the course of a Contracted Service, to communicate with CONTRACTOR, driver, and/or lot owner or other business to assist CONTRACTOR, or facilitate direct communication between CONTRACTOR and the driver, lot owner, and/or business, to the extent permitted by CONTRACTOR, in facilitating enforcement. However, under no circumstances shall AIRGARAGE be authorized to control the manner or means by which CONTRACTOR performs enforcement services or other services contemplated under this agreement. This includes, but is not limited to, the following:
- AIRGARAGE does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
- CONTRACTOR does not have a supervisor or any individual at AIRGARAGE to whom they report.
- CONTRACTOR is not required to use any signage or other designation of AIRGARAGE on their vehicle or person at any point in their use of the platform to perform the Contracted Services.
- AIRGARAGE has no control over CONTRACTOR’s personal appearance.
- CONTRACTOR does not receive regular performance evaluations by AIRGARAGE.
- 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.
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.
- AIRGARAGE 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 AIRGARAGE have been inserted solely for the safety of consumers and other CONTRACTORS using the AIRGARAGE platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
- AIRGARAGE 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 to the appropriate federal, state and local taxing authorities.
V. PAYMENT FOR SERVICES
- Unless notified otherwise by AIRGARAGE 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. From time to time, AIRGARAGE may offer opportunities for CONTRACTOR to earn more money for performing Contracted Services at specified times or in specified locations.
- AIRGARAGE will process payments earned by CONTRACTOR and transmit to CONTRACTOR. Payments for all enforcements completed in a given day will be transferred via direct deposit on no more than a monthly basis.
- CONTRACTOR agrees that they will not manipulate or abuse the scanning system by, among other things: scanning plates not located in selected parking lot; 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 AIRGARAGE’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the driver, lot owner or other business, CONTRACTOR, and any other party with information relevant to the dispute. AIRGARAGE 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 AIRGARAGE’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify AIRGARAGE in writing at contact@airgarage.com of the challenge and provide AIRGARAGE the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of their challenge.
- AIRGARAGE’s Failure: In the event AIRGARAGE 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 AIRGARAGE in writing at contact@airgarage.com 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 smartphones ("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 Equipment. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to their Equipment.
VIII. INDEMNITY
- AIRGARAGE 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 AIRGARAGE's actions offering and facilitating the Contracted Services to CONTRACTOR.
- CONTRACTOR agrees to indemnify, protect and hold harmless AIRGARAGE, 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 arising from the performance of enforcement services under this Agreement, including personal injury or death to any person (including to CONTRACTOR), 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 AIRGARAGE or its parent, subsidiary and/or affiliated companies.
- CONTRACTOR agrees to indemnify, protect and hold harmless AIRGARAGE, 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.
IX. DISPUTE RESOLUTION
- Any and all disputes arising out of this Agreement shall be governed by California law.
- In the event of a dispute, CONTRACTOR and AIRGARAGE shall first convene to attempt to resolve the dispute through informal meetings and discussions.
- Any and all disputes arising out of this Agreement that cannot be resolved by the parties through an informal meeting process shall be resolved by binding arbitration. Arbitrations shall be conducted by the American Arbitration Association (AAA) pursuant to its Consumer Arbitration Rules and shall take place in San Francisco County, California.
- In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
X. PROPRIETARY RIGHTS AND LICENSES
- 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 AIRGARAGE platform together with the underlying software code and any and all rights in, or derived from the AIRGARAGE platform are proprietary and owned either directly by AIRGARAGE or by AIRGARAGE’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 AIRGARAGE platform to perform the Contracted Service in compliance with the terms of this Agreement. No portion of the AIRGARAGE 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 AIRGARAGE platform or any intellectual property rights therein in any manner, and CONTRACTOR shall not exploit the AIRGARAGE platform or any intellectual property rights therein in any unauthorized way whatsoever.
- AIRGARAGE hereby grants CONTRACTOR a non-exclusive, non-transferable, non-sublicensable, revocable license to use the AIRGARAGE platform solely for their lawful use to perform the Contracted Services in accordance with these terms of this Agreement. AIRGARAGE retains all rights, title, and interest in and to the AIRGARAGE 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 (“Submissions”) provided by CONTRACTOR to AIRGARAGE regarding the AIRGARAGE platform are provided freely and shall become the sole property of AIRGARAGE. AIRGARAGE 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.
XI. TERMINATION OF AGREEMENT
- CONTRACTOR may terminate this Agreement upon seven (7) days written notice. AIRGARAGE may terminate this Agreement and deactivate CONTRACTOR’S Space Force account for a material breach of this Agreement at any time with no advance notice.
- CONTRACTOR’s and AIRGARAGE’s obligations and rights arising under the Dispute Resolution section of this Agreement shall survive termination of this Agreement.
XII. MODIFICATION
- AIRGARAGE may modify this Agreement at any time. When AIRGARAGE makes material changes to this Agreement, it will post the revised Agreement on the AIRGARAGE Platform and update the “Last Updated” date at the top of the Agreement. AIRGARAGE 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 AIRGARAGE platform will constitute acceptance of the revised Agreement. AIRGARAGE 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 AIRGARAGE platform after any such changes shall constitute CONTRACTOR’s consent to such changes.
XIII. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
- This Agreement shall constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed or amended in any respect, unless in writing and signed by both parties. Before accepting any modifications, alterations, changes or amendments, CONTRACTOR shall have the right to discuss any proposed changes with AIRGARAGE and consider whether to continue their contractual relationship with AIRGARAGE. This Agreement supersedes any prior contract between the parties. To the extent AIRGARAGE’s consumer facing Terms and Conditions Agreement (or updated consumer facing Terms and Conditions Agreement, if applicable) is inconsistent or conflicts with this Agreement, this Agreement controls. However, the decision to opt-out of the Mutual Arbitration Provision in this Agreement does not affect the enforceability of any arbitration agreement in the consumer facing Terms and Conditions Agreement to which Contractor may be bound (and vice versa). This Agreement may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided, however, that AIRGARAGE may assign its rights and obligations under this Agreement to an affiliate of AIRGARAGE or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this Agreement to AIRGARAGE shall be deemed to include such successor(s).
- The failure of AIRGARAGE or CONTRACTOR in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.
XIV. MISCELLANEOUS
- 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 Clause: Except as specifically provided in Section IX, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
- GOVERNING LAW: 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 IX, shall be the rules of law of the state in which CONTRACTOR performs the majority of the services covered by this Agreement.
- NOTICE AND OPPORTUNITY TO CURE: CONTRACTOR agrees to notify AIRGARAGE in writing at contact@airgarage.com of any breach or perceived breach of this Agreement, of any claim arising out of or related to this Agreement, or of any claim that CONTRACTOR’s services or scope of work differ in any way from what is contemplated in this Agreement, including but not limited to the terms in Sections II (Contractor’s Operations) and III (Contracted Services), or if the relationship of the parties differs from the terms contemplated in Section IV (Relationship of Parties).
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