DELIVERY PROVIDER AGREEMENT
EFFECTIVE: May 31, 2018
This BAAAM DELIVERY Delivery Provider Agreement (“Agreement”) is made and entered into on May 31, 2018 (“Effective Date”) by and between BAAAM DELIVERY, a Nevada corporation, having a principal place of business at [2780 S Jones Blvd #200-3120 Las Vegas NV 89146], and [NAME OF DELIVERY PROVIDER] (“Delivery Provider”), an independent delivery professional with an address or principal place of business at [DELIVERY PROVIDER ADDRESS]. BAAAM DELIVERY and Delivery Provider may be referred to herein, each as a “Party” and together as the “Parties.”
BAAAM DELIVERY is an online and mobile food ordering company that connects users with food trucks and restaurants through its Applications. In connection with the Applications, BAAAM DELIVERY arranges food delivery for certain restaurants that do not offer a delivery option by contracting with independent Delivery Providers to deliver food from such restaurants to customers who order through the Applications (“Delivery Services”). Delivery Provider is aware that food trucks will relocate throughout the day and will remain within the city limits.
Delivery Provider is an independent, licensed provider of messenger, courier and/or delivery services, and is interested in entering into this Agreement for the opportunity to deliver orders placed through the Applications in exchange for service fees (“Service Fees”) to be agreed upon between the Parties. Delivery Provider will perform Delivery Services using:
In consideration of the mutual promises made herein, the Parties agree to the terms and conditions set forth herein.
This Agreement governs the relationship between BAAAM DELIVERY and Delivery Provider and any of Delivery Provider’s employees, contractors, subcontractors, agents and representatives or other delivery service entities engaged by Delivery Provider to perform Delivery Services (collectively, the “Subcontractors”). “Subcontractors” also includes any employees, contractors, subcontractors, agents and representatives of any delivery service entity engaged by Delivery Provider to perform Delivery Services. In exchange for the promises contained in this Agreement, Delivery Provider will have the contractual right and obligation to perform Delivery Services and receive the Service Fees to be agreed upon by the Parties.
3. DELIVERY PROVIDER REPRESENTATIONS AND WARRANTIES
As a condition of entering into this Agreement with BAAAM DELIVERY, and as long as Delivery Provider is performing Delivery Services hereunder, Delivery Provider represents and warrants to the following:
Delivery Provider is in the independent business of providing delivery services, and maintains any and all licenses, permits, and registrations necessary to perform Delivery Services in the locality or localities in which Delivery Provider performs Delivery Services. Delivery Provider is at least eighteen (18) years of age (or legal age within the Delivery Provider’s residency) and has had a valid driver’s license for at least one (1) year and has the appropriate level of certification necessary or advisable to operate the vehicle used to perform Delivery Services. Delivery Provider has a safe driving record. Delivery Provider has not been convicted of a crime reasonably likely to negatively impact Delivery Provider’s ability to perform Delivery Services, including but not limited to any crimes relating to violence, weapons, theft, robbery, burglary, dishonesty, fraud, embezzlement, any sex-related crimes, or any other similar crimes. Delivery Provider maintains at its own expense all equipment it deems necessary in its reasonable discretion to perform Delivery Services. Delivery Provider is not required to purchase, lease or rent any equipment from BAAAM DELIVERY. To the extent Delivery Provider uses its own equipment, Delivery Provider certifies that such equipment meets all industry and regulatory standards, and will be in good working condition. Delivery Provider maintains at its own expense insurance of the types and in the amounts specified below: If Delivery Provider performs Delivery Services using a motor vehicle, Delivery Provider will maintain vehicle insurance for every vehicle used to perform Delivery Services. Such vehicle insurance must provide insurance coverage for all activities arising in connection with the Delivery Services, and must satisfy all applicable state and local insurance requirements (including minimum coverage amounts). BAAAM DELIVERY reserves the right to require that it be named as an additional insured on any policy required hereunder. Delivery Provider will maintain workers’ compensation insurance covering any persons performing Delivery Services hereunder; provided that occupational accident insurance may be maintained in lieu of workers’ compensation insurance to the extent permitted by law. Prior to performing Delivery Services, Delivery Provider agrees to provide proof of the insurance coverage as specified herein. Delivery Provider further agrees to provide updated proof of insurance each time it renews or alters such insurance coverage. Delivery Provider must provide BAAAM DELIVERY written notice at least 30 days prior to the cancellation of any insurance policy specified herein.
Delivery Provider will notify BAAAM DELIVERY immediately in the event any of the foregoing representations and warranties is no longer true. Delivery Provider 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 BAAAM DELIVERY can verify that Delivery Provider continues to satisfy the eligibility requirements set forth herein.
In the event any of the foregoing representations and warranties ceases to be true, BAAAM DELIVERY may immediately suspend Delivery Provider’s Delivery Services and access to the Applications until such issues are cured. BAAAM DELIVERY may terminate this Agreement if such issues are not cured within 14 days of receiving notice of such Ineligibility or if such Ineligibility is not capable of cure.
4. DELIVERY SERVICES
BAAAM DELIVERY will offer Delivery Provider a Service Fee or Service Fee Schedule (“Service Fee”) for a proposed Service. The method for making and/or accepting a Service Fee may vary from time to time in BAAAM DELIVERY’s reasonable discretion, provided that BAAAM DELIVERY agrees to communicate such methods to Delivery Provider. Delivery Provider agrees to provide BAAAM DELIVERY with its contact information and agrees to update BAAAM DELIVERY any time such address changes.
Delivery Provider will have the opportunity to accept or reject the Service Fee. If Delivery Provider accepts the Service Fee, Delivery Provider agrees to perform Delivery Services for such Service Fee in accordance with subsection (a) below. If Delivery Provider does not accept the Service Fee, Delivery Provider has no obligation to perform the Delivery Services sought by the proposed Service. Delivery Provider agrees to faithfully and diligently devote best efforts, skills and abilities to the performance of Delivery Services in a professional manner that is at least consistent with industry standards.
Data-enabled smartphone with data plan. Network access must be generally available at all times while Delivery Provider 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 Applications.
Delivery Provider acknowledges and agrees that its global positioning information must be provided to BAAAM DELIVERY in order to provide Delivery Services, and that such global positioning information may be monitored and tracked by BAAAM DELIVERY. Delivery Provider will not falsely report its global positioning information, prevent or attempt to prevent the Applications from reporting its global position information. This assists BAAAM DELIVERY to locate the Delivery Provider and the Mobile Food Trucks to assist in the most efficient delivery of the food.
Subject to compliance with this Agreement, Delivery Provider will be solely responsible for determining how to perform the Delivery Services, including but not limited to whether to utilize Subcontractors to perform all or some of the Delivery Services, and BAAAM DELIVERY will have no right to, and will not, control or prescribe the manner, method or means Delivery Provider uses to complete Delivery Services. The provisions of this Agreement reserving ultimate authority in BAAAM DELIVERY have been inserted solely to achieve compliance with federal, state or local laws, regulations and interpretations thereof.
Nothing herein will preclude Delivery Provider from providing services to any other business, including a business directly competing with BAAAM DELIVERY. Such services may be performed concurrently with the Delivery Service during any Engagement, provided that such concurrent services do not hinder Delivery Provider’s performance of Delivery Services during such Engagement. Notwithstanding the foregoing, Delivery Provider will not divert or attempt to divert any BAAAM DELIVERY restaurants or customers to a competitive service or directly to Delivery Provider.
5. SERVICE FEE
BAAAM DELIVERY will pay Delivery Provider Service Fees for the Delivery Services in the amounts and pursuant to the terms agreed to between the Parties for each Engagement. The Delivery Provider will be paid a flat fee of $3.99 per completed Delivery, for deliveries completed in “ Delivery Zone 1” , up to 5.0 mile radius. The Delivery Provider will be paid a flat fee of $6.99 per completed Delivery Service, for deliveries completed in “Delivery Zone 2” 5.1 mile radius to 10.0 mile radius.. The Delivery Provider will be paid a flat fee of $9.99 per completed Delivery Service, for deliveries completed in “Delivery Zone 3” 10.1 mile radius to 15.0 mile radius.
Service Fee Bonus are awarded as follows; if three hundred (300) successful deliveries are completed in a calendar month (first of the month to the last day of the month) and the Delivery Provider travels one thousand (1,000) miles, a Service Fee Bonus of five hundred ($500) is awarded to the Delivery Provider within ten (10) business days of the follow month. If three hundred and fifty (350) successful deliveries are completed in a calendar month (first of the month to the last day of the month) and the Delivery Provider travels one thousand two hundred and fifty (1,250) miles, a Service Fee Bonus of one thousand ($1,000) is awarded to the Delivery Provider within ten (10) business days of the follow month. If four hundred (400) successful deliveries are completed in a calendar month (first of the month to the last day of the month) and the Delivery Provider travels one thousand and five hundred (1,500) miles, a Service Fee Bonus of one thousand and five hundred ($1,500) is awarded to the Delivery Provider within ten (10) business days of the follow month.
Delivery Provider will retain any and all gratuities received from customers, whether submitted in cash or paid through the Applications, and shall remit such gratuities to any Subcontractors in accordance with applicable law. BAAAM DELIVERY is not required to collect any minimum gratuity from customers using the Applications. The Service Fees and any gratuities paid to Delivery Provider pursuant to this Agreement constitute the entire amount to be paid by BAAAM DELIVERY for performance of Delivery Services by Delivery Provider or any Subcontractors.
Delivery Provider 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 and equipment. Except as otherwise required by law, Delivery Provider assumes all risk of damage or loss to any equipment used to perform Delivery Services.
BAAAM DELIVERY will report all Service Fees paid to Delivery Provider on a calendar year basis using an IRS Form 1099. Delivery Provider agrees to report all such payments to the appropriate federal, state and local taxing authorities. Upon execution of this Agreement, Delivery Provider will provide BAAAM DELIVERY with its business license number and federal employer identification number (if any).
Payment by BAAAM DELIVERY to Delivery Provider under the terms of this Agreement will be deemed complete and accurate unless disputed in accordance with the following requirements. To dispute a payment, Delivery Provider must submit written notice of the dispute to BAAAM DELIVERY 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.
This Agreement is made between independent business enterprises that are separately owned and operated. The Parties intend this Agreement to create the relationship of principal and independent contractor between BAAAM DELIVERY and Delivery Provider, and not that of employer and employee. Delivery Provider will need to fill out and submit a 1099 form to complete the application process. This can be found here https://www.irs.gov/pub/irs-pdf/f1099msc.pdf. Neither Party will have the right to bind the other by contract or otherwise except as specifically provided hereunder.
7. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." BAAAM DELIVERY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BAAAM DELIVERY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BAAAM DELIVERY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
BAAAM DELIVERY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BAAAM DELIVERY, EVEN IF BAAAM DELIVERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BAAAM DELIVERY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF BAAAM DELIVERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BAAAM DELIVERY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BAAAM DELIVERY'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER RIDE-SHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT BAAAM DELIVERY HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BAAAM DELIVERY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON BAAAM DELIVERY’S CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify and hold BAAAM DELIVERY and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) BAAAM DELIVERY's use of your Content; or (iv) your violation of the rights of any Third Party, including Third Party Providers.
This Agreement will commence on the Effective Date, or the date Delivery Provider satisfies the conditions set forth above hereof, if later, and will continue until terminated by either Party in accordance with the conditions set forth in this agreement. Either Party may terminate this Agreement immediately in the event of the other Party’s material breach of any provision of this Agreement by giving written notice to the other Party identifying the breach or breaches relied upon. Examples of material breach by Delivery Provider include, without limitation, the following: Any violation of applicable law or regulation in connection with the performance of Delivery Services, whether or not such violation resulted in legal action; Any action or omission negatively impacting BAAAM DELIVERY’s reputation or relationship with restaurants or customers using the Applications (including rude, obscene, negligent or otherwise unprofessional conduct while performing Delivery Services); Any action or omission threatening the safety of Delivery Provider or Subcontractor, or any restaurant personnel or delivery customer (including without limitation, reckless driving or biking, threats or aggression, stalking and/or contacting individuals without permission); or Being under the influence of illegal substances or alcohol while performing Delivery Services.
Either Party may terminate this Agreement by giving the other Party 14 days’ written notice. Upon termination of this Agreement for any reason, Delivery Provider will immediately, at its sole expense, return to BAAAM DELIVERY any BAAAM DELIVERY property provided to Delivery Provider. If Delivery Provider fails to return any BAAAM DELIVERY property, Delivery Provider agrees that BAAAM DELIVERY may withhold any amount BAAAM DELIVERY owes to Delivery Provider including Service Fees.
This Agreement shall be governed by the laws of the State of Nevada, United States of America, without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. Any action or proceeding relating to a claim or controversy at law or equity that arises out of or relates to this and falls outside of the below stated Arbitration Terms must be brought in a federal or state court located in Clark County and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, unless such Claim is submitted to arbitration as set forth in Section 11.2(c).
If a dispute arises between you and BAAAM DELIVERY, our goal is to learn about and address your concerns. You agree that, before instituting any arbitration, you will notify us about any dispute you have with BAAAM DELIVERY regarding our Services by contacting BAAAM DELIVERY. If you and BAAAM DELIVERY are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to binding arbitration.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against BAAAM DELIVERY on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against BAAAM DELIVERY, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against BAAAM DELIVERY by someone else.
You and BAAAM DELIVERY agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and BAAAM DELIVERY, and not in a court of law.
You acknowledge and agree that you and BAAAM DELIVERY are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and BAAAM DELIVERY otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and BAAAM DELIVERY each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Nevada.
Unless you and BAAAM DELIVERY otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and BAAAM DELIVERY submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $2,500, BAAAM DELIVERY will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Delivery Provider may not assign this Agreement without the prior written consent of BAAAM DELIVERY. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of any permitted successors and assigns. If any provision of this Agreement is found to be unenforceable or unlawful, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement will continue in full force and effect. Failure of either Party to enforce any provision of this Agreement will not be construed as a waiver thereof, or as excusing the other Party from future performance. Headings 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. This Agreement, together with any appendices attached hereto, sets forth the default provisions governing BAAAM DELIVERY’s engagement of Delivery Provider for the provision of Delivery Services, and supersedes any and all previous agreements between the Parties, whether written or oral. Together with the terms of any Engagements agreed to between the Parties, this Agreement is the entire Agreement between the Parties with respect to the subject matter herein.
DELIVERY PROVIDER ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT, HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS AGREEMENT AND HAS HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH PERSONAL FINANCIAL, TAX AND LEGAL ADVISORS PRIOR TO EXECUTING THIS AGREEMENT.