Waste Fix provides waste management, junk removal, and other related services to its customers, and hereby retains Provider to assist in the provision of services to support the operations of the business (the “Services”). Waste Fix hereby retains Provider as an independent Provider and Provider accepts such retention to provide the Services on behalf of Waste Fix upon the terms and conditions set forth herein:
a. Provider shall undertake the Services as assigned by Waste Fix through the Waste Fix website, https://www.WasteFix.com (the “Site”) pursuant to this Agreement.
b. Provider represents and warrants that Provider’s execution and delivery of this Agreement and the performance of its duties hereunder do not, and will not, breach or conflict with any obligation of Provider to any other person or entity. Provider will comply with the provisions of the Data Processing Addendum set forth in Exhibit A.
c. Provider represents and warrants that it is a business entity, duly formed or organized, validly existing and in good standing under the laws of its jurisdiction of formation or organization or a sole proprietorship.
d. Provider agrees to devote sufficient time, attention, and efforts in order to promptly and satisfactorily complete the Services, without any commitment as to the number of hours.
e. In the event Provider utilizes the services of third parties to provide the Services (“Sub-Provider”), Provider agrees to ensure Sub-Provider consents to the terms herein. In addition, Provider shall be liable for the acts or omissions of its Sub-Providers.
2. Nature of Relationship and Services
With respect to the nature of the relationship between Waste Fix and Provider hereunder, and with respect to the nature of Provider’s Services to be performed, both Provider and Waste Fix agree that their relationship is intended to be, and shall at all times be a bona fide business-to-business contracting relationship, within the meaning of relevant New York laws, and Provider warrants and represents as that:
1. Provider is free from the control and direction of Waste Fix in connection with the performance of the Services.
2. Provider is providing services directly to Waste Fix, and not directly to Waste Fix’s customers.
3. Provider has obtained all required business licenses and business tax registrations.
4. Provider maintains a business location separate from Waste Fix’s business or work location.
5. Provider is customarily engaged in an independently established business of the same nature as that involved in the Services.
6. Provider contracts with other businesses to provide the same or similar services as the Services provided under this Agreement, and Provider maintains a clientele without restrictions from Waste Fix.
7. Provider advertises and holds itself out to the public as available to provide the same or similar services as the Services provided under this Agreement.
8. Provider shall, unless set forth otherwise in a Statement of Work, provide its own tools, vehicles, and equipment to perform the Services.
9. Provider has negotiated its own rates with respect to this Agreement with Waste Fix.
10. Consistent with the nature of the Services, Provider can set its own hours and location of work as long as it provides sufficient time and effort to provide the Services in a timely, competent, and workmanlike manner.
11. No license from the Provider’s State License Board is required for the Services, as required by relevant New York laws.
12. Provider has the right to control the manner and means of accomplishing the Services and the result desired.
13. The Services are of a type of work usually done by a specialist without supervision.
14. Provider supplies the instrumentalities, tools, and the place of work for the Services.
15. The parties do not intend to create, and do not believe they are creating, a relationship of employer-employee, joint venture, partnership, or other such arrangement with respect to either this Agreement or any of the Services to be performed hereunder.
3. Provider Requirements
a. Provider shall have such legal qualifications and capabilities as Waste Fix reasonably requires and shall abide by the applicable rules and regulations of Waste Fix. Provider shall, in the provision of the Services, comply with all applicable laws, regulations, and ordinances, including but not limited to laws and ordinances relating to (a) licensed motor operators, (b) traffic laws, and (c) any and all illegal dumping of waste, including but not limited to compliance with relevant New York Waste Management Ordinances.
b. Provider shall keep full, written records of the Services as specified in the Service Provider Policy as defined in Section 5. All such records shall be the property of Waste Fix, and Waste Fix shall have unrestricted access to all records created by Provider hereunder.
c. Provider warrants and represents that they are legally authorized to work in the United States to provide Services arising from or related to this Agreement. To the extent permissible by law, Provider shall provide to Waste Fix evidence reasonably satisfactory to Waste Fix, including, without limitation, Provider’s authorization to work in the United States before such Provider commences performance of Services.
d. Provider agrees that it shall remain fully liable for the acts of any subcontractors, assistants, employees, or agents of Provider.
e. Provider shall be required to complete a background check prior to providing the Services and provide Waste Fix with a current copy of their driver's license.
f. Each Provider may only maintain one (1) account with Waste Fix.
g. Provider shall be solely liable for any damages caused to Customer or any third party during the performance of the Services and shall indemnify Waste Fix as set forth in Section 10(j).
4. Compensation
Waste Fix agrees to pay Provider compensation for the Services, as set forth in the Service Provider Policy (SPP), as updated from time to time by Waste Fix.
5. Service Provider Policy and Data Rights
a. All Services rendered by Provider hereunder shall additionally be subject to and Provider agrees to comply with Waste Fix’s Service Provider Policy located at https://www.WasteFix.com/service-provider-policy incorporated herein by reference (the “SPP”).
b. Provider acknowledges and agrees to be bound by such SPP in the performance of Services hereunder. Provider further acknowledges and agrees that the SPP are subject to change and may be amended at any time by Waste Fix without notice. Any updates to the SPP shall become effective immediately upon Provider’s access to the Services.
c. Provider is a Service Provider under relevant New York Privacy Laws and shall not have any rights to personal data collected by Waste Fix or Provider under this Agreement. Upon termination, any Waste Fix data held by Provider (other than as required to comply with law) shall be immediately deleted.
6. Term of Agreement
a. This Agreement will become effective upon execution and will terminate on the completion of the Services or until terminated as set forth below.
b. Either party may terminate this Agreement at any time, for any reason, by:
(i) If terminated by Provider, giving fourteen (14) days’ written notice to Waste Fix by contacting us via the webform or via email at support@WasteFix.com;
(ii) If terminated by Waste Fix, immediately upon notice from Waste Fix to Provider via email, text, or personal notice.
Provider understands and agrees that Waste Fix may terminate this Agreement at any time, with or without cause.
c. This Agreement terminates automatically on the occurrence of any of the following events:
(i) Bankruptcy or insolvency of either party;
(ii) Dissolution of either party;
(iii) The sale of the business of Provider.
7. Relationship of Parties
The parties intend that Provider shall render such services to Waste Fix as an independent Provider and not as an employee, agent, joint venturer, partner, or otherwise. Provider shall be solely responsible for Provider’s acts and the acts of its employees, agents, or subcontractors under its business as an independently established business. Provider shall have the sole and exclusive right to control and direct the manner and method of performing the services hereunder, subject to:
(i). Its obligations hereunder as well as under the SPP,
(ii). Provider’s obligation to perform all Services in accordance with all applicable federal, state, and local laws, regulations, and ordinances,
(iii). Waste Fix’s right to ensure that the results are satisfactory to and in accordance with Waste Fix’s expectations.
Provider acknowledges that Waste Fix will not withhold any social security or income taxes or make any contributions to unemployment or workers’ compensation funds on behalf of Provider or its employees, agents, or subcontractors. Provider shall be responsible for filing all tax forms and shall pay all taxes, when and as due, on the compensation received under this Agreement, including payroll taxes and estimated taxes. Provider shall provide Waste Fix with proof of payment of taxes on demand.
Neither Provider nor its employees, agents, and subcontractors shall be entitled to any benefits accorded to Waste Fix’s employees, including but not limited to medical, dental, vision, life, LTD, and 401(K) plans, and vacation or sick pay. In the event that any governmental agency or court of competent jurisdiction reclassifies the employment status of Provider and its employees, agents, and subcontractors, Provider hereby expressly waives any claim to any of the aforementioned benefits of Waste Fix for the period of time prior to the date of such reclassification. Additionally, in the event that Provider’s waiver of any claim of entitlement to any of Provider’s benefits is determined to be unenforceable for any reason, in consideration for the payment received under this Agreement, Provider hereby agrees not to participate in any of the benefit plans listed in this section where participation is voluntary.
Provider shall be responsible for procuring, at Provider’s expense and in Provider’s name, at a minimum, such insurance as shall be required by state law, in addition to any insurance requirements set forth in the SPP. In this regard, Provider agrees to comply with all applicable laws of the State of New York without reference to its conflict of laws principles. Upon Waste Fix’s request, Provider will provide Waste Fix with satisfactory evidence of compliance with this requirement. Provider further agrees that if Waste Fix should legally incur any cost whatsoever under any workers’ compensation laws by reason of Provider’s injury or death while engaged in performing the Services, Provider will reimburse Waste Fix for such costs.
8. Non-Solicitation/Non-Circumvention
During the term of the Agreement and for a period of one (1) year thereafter, Provider will not, without first obtaining the express prior written consent of Waste Fix (the granting of such consent to be in the sole and absolute discretion of Waste Fix), either directly or indirectly, on behalf of Provider or any other person or entity:
(i). Contact, solicit, interfere with, or contract with (or attempt to do any of the foregoing) any person or entity with whom Provider had contact with or became aware of in the course of performing the Services and that was a customer or supplier of Waste Fix at any time during the Agreement regarding any matter involving or related to the Services,
(ii). Solicit, entice, induce, hire, employ, seek to employ, or employ, directly or indirectly any employee or consultant of Waste Fix who was employed by Waste Fix at any time during the Agreement and with whom Provider had any contact with during the term of the Agreement.
In the event of any violation (or multiple violations) by Provider of this provision:
(a). This Agreement shall immediately be terminated,
(b). Provider shall be immediately and permanently banned from any further use of the Site,
(c). Provider shall additionally pay liquidated damages to Waste Fix as set forth in Section 11(b), below.
9. Confidential Information
a. Waste Fix may, from time to time, in connection with the Services and this Agreement, disclose confidential information to Provider (the “Confidential Information”). Such Confidential Information shall include, but not be limited to all customers of Waste Fix, as well as all customer lists, sales, or marketing lists of Waste Fix. Provider shall not, at any time during the term of this Agreement, and for a period of five (5) years thereafter, solicit, market to, or contact any customer of Waste Fix for any purpose. Additionally, Provider will not disclose, and will not permit the disclosure of Waste Fix’s Confidential Information to third parties at any time during, or for a period of five (5) years after the termination of this Agreement.
b. “Confidential Information” shall not include information Provider can document:
(i) Is in or (through no improper action or inaction by Provider) enters the public domain;
(ii) Is generally known or easily ascertainable by nonparties of ordinary skill or in the business of Waste Fix;
(iii) Is released by Waste Fix to any other person, firm, or entity (including governmental agencies or bureaus) without restriction;
(iv) Was rightfully in Provider’s possession or known by Provider prior to receipt from Waste Fix, as evidenced by Provider’s written records in existence prior to the disclosure by Waste Fix;
(v) Was rightfully disclosed to it by another person without restriction; or
(vi) Was independently developed by it by persons without access to such information and without use of any Confidential Information of Waste Fix.
10. Provider’s Representations and Indemnities
a. Provider shall perform all Services hereunder in a timely and workmanlike manner with due diligence, in accordance with the terms of this Agreement and the SPP.
b. In its provision of the Service, Provider shall maintain their equipment and vehicle, drive and secure any materials picked up in a safe and diligent manner.
c. Provider has the full power, ability, and authority to enter into and perform this Agreement.
d. Provider is not subject to any obligations or disability which will or might prevent it from or interfere with the full keeping and performing of all the covenants and conditions to be kept and performed by it hereunder.
e. The execution and performance of this Agreement does not and will not violate the contractual or other rights of any third party.
f. It shall comply with all applicable laws, statutes, regulations, and ordinances, in performance of this Agreement.
g. It shall comply with the SPP at all times while providing the Services.
h. All contact, billing, insurance, and licensing information provided by Provider to Waste Fix is, to the best of their knowledge, true, accurate, and up to date at all times.
i. It owns or has sufficient rights in all equipment to be used by Provider in the performance of the Services.
j. Provider shall and does hereby fully indemnify, defend, and hold harmless Waste Fix, and Waste Fix’s directors, managers, officers, owners, shareholders, members, employees, agents, representatives, its licensees, and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorney’s fees and costs, that Waste Fix may incur or suffer and that result from, or are related to third-party claims related to:
(i) Any damage or injury to persons or property caused by or sustained in connection with Provider’s performance of Services under this Agreement, whether performed individually or through use of employees, agents, or subcontractors of Provider;
(ii) Any failure by Provider to comply with its obligations specified in this Agreement;
(iii) Any violation by Provider of any statute, regulation, or ordinance, including but not limited to relevant New York Waste Management Ordinances, as well as any state or federal tax, labor relations, wage and hour, employment discrimination, immigration, wrongful termination, or other employment-related statute or policy with respect to Provider or any employees, agents, or subcontractors of Provider performing services under this Agreement;
(iv) Any breach by Provider of any representation, warranty, or agreement hereunder.
11. Limitations on Damages and Remedies of Waste Fix
a. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Waste Fix SHALL NOT BE LIABLE TO PROVIDER, CUSTOMER, OR ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER INDIRECT LOSS OR DAMAGE, INCLUDING LOST PROFITS, ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM, OR THE USE OR PERFORMANCE OF ANY SERVICE, WHETHER IN AN ACTION FOR OR ARISING OUT OF ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR Waste Fix’s OBLIGATION TO PAY FEES AND EXPENSES TO PROVIDER, Waste Fix’s LIABILITY FOR ANY CAUSE OF ACTION SHALL NOT EXCEED THE AMOUNTS PAID BY Waste Fix TO PROVIDER DURING THE TWELVE MONTHS PRIOR TO THE INCIDENT UPON WHICH THE CLAIM OCCURRED.
b. LIQUIDATED DAMAGES. IN THE EVENT OF PROVIDER’S BREACH OF ITS OBLIGATIONS UNDER SECTION 8 OF THIS AGREEMENT, Waste Fix SHALL BE ENTITLED TO RECEIVE, AS LIQUIDATED DAMAGES FOR EACH INSTANCE OF SUCH BREACH, PAYMENT IN AN AMOUNT EQUAL TO THE GREATER OF (I) TEN THOUSAND DOLLARS ($10,000.00) OR (II) AN AMOUNT EQUAL TO TWO (2) MONTHS OF GROSS BILLABLES TO BE PAID BY THE CUSTOMER TO Waste Fix DURING THE TERM OF THE CONTRACT BETWEEN CUSTOMER AND Waste Fix. THE PARTIES AGREE THAT THE NEGATIVE IMPACT ON Waste Fix WOULD BE IMPRACTICAL, AND THAT IT WOULD BE EXTREMELY DIFFICULT TO ESTIMATE THE ACTUAL DAMAGES TO BE SUFFERED BY THE NON-BREACHING PARTIES AS A RESULT OF SUCH BREACH, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THE IMMEDIATELY PRECEDING SENTENCE REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH Waste Fix WOULD INCUR AS A RESULT OF SUCH BREACH. THE PARTIES ADDITIONALLY AGREE THAT THE FOREGOING LIQUIDATED DAMAGES ARE REASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THE CONTRACT WAS MADE, IN ACCORDANCE WITH THE REQUIREMENTS OF New York General Obligations Law § 5-322. ALL PARTIES DO HEREBY AGREE THAT THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION ARE A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT Waste Fix WOULD SUFFER IN THE EVENT OF THE BREACHES DESCRIBED HEREIN. SUCH AMOUNT SHALL BE THE FULL, AGREED, AND LIQUIDATED DAMAGES FOR ANY INCIDENT OF BREACH OUTLINED IN THIS SECTION. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE REASONABLE LIQUIDATED DAMAGES TO Waste Fix.
c. The remedies provided in this section shall be cumulative and in addition to any other remedies which Waste Fix may have against Provider from time to time, and shall not limit Waste Fix’s ability to seek other remedies available to it at law or in equity.
12. Arbitration
a. Provider agrees that, if a dispute arises from or in connection with this Agreement on any matter other than confidentiality under Section 9, such dispute shall be exclusively submitted to binding arbitration in accordance with the rules of the American Arbitration Association then in effect. The arbitration shall take place in New York City, New York and both Provider and Waste Fix agree to submit to the jurisdiction of the arbitrator selected in accordance with American Arbitration Association rules and procedures. Provider and Waste Fix agree that this arbitration procedure will be the exclusive avenue of redress for any disputes initiated by Provider, relating to or arising from Provider’s performance of services for Waste Fix, including disputes over rights provided by federal, state, or local statutes, regulations, ordinances, and common law, including all laws that prohibit discrimination on any protected classification or other provisions where arbitration is prohibited by law. Provider specifically agrees that this provision includes any claims for payment pursuant to or for breach of this Agreement. The arbitrator shall have discretion to award monetary and other damages, or no damages, and to fashion such other relief as the arbitrator deems appropriate. The arbitrator shall also have discretion to award the prevailing party reasonable costs and attorney’s fees incurred in bringing or defending an action under this provision.
b. To the maximum extent permitted by law, Provider waives any rights to a jury trial and to participate in any class action suit or proceeding against Waste Fix.
13. Miscellaneous
a. This Agreement constitutes the entire agreement between the parties with respect to the matters contained herein and supersedes any and all prior and contemporaneous agreements, negotiations, correspondence, undertakings, and communications of the parties, oral or written, with respect to that subject matter.
b. Provider acknowledges that Waste Fix does not tolerate harassment or discrimination of any kind, and Provider agrees to comply with all applicable laws relating thereto.
c. Except as otherwise provided in this subsection, Provider may not, without the express written permission of Waste Fix, assign or pledge any rights or obligations hereunder. Provider may subcontract the performance of its duties and obligations under this Agreement to a third party or parties only with the prior written consent of Waste Fix. Provider may assign this Agreement in connection with the sale of Provider (whether by merger, sale of equity interests, sale of assets or otherwise) without the prior written consent of Waste Fix. Such subcontractor may be removed at the request of Waste Fix for any reason not prohibited by law.
d. Subject to Waste Fix’s sole right to update the SPP as set forth in Section 5, no amendment or modification of this Agreement shall be valid unless evidenced by a written instrument executed by Provider and Waste Fix.
e. A waiver of a breach of any provision of this Agreement shall not constitute a waiver of any subsequent breach of that provision or a breach of any other provision of this Agreement. Failure of Waste Fix or Provider to enforce at any time or from time to time any provision of this Agreement shall not be construed as a waiver thereof.
f. The provisions of this Agreement and the covenants herein contained shall be construed independently of each other, it being the express intent of the parties hereto that the obligations of, and restrictions on, the parties as provided herein shall be enforced and given effect to the fullest extent legally permissible.
g. Each party agrees to the applicable governing law of the State of New York, without reference to its conflicts of law principles, and consents to the exclusive jurisdiction of the State of New York courts, including courts located within New York County, New York.
h. If any term, provision, or part of this Agreement is found by a court to be invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other terms, provisions, and parts of this Agreement shall nevertheless remain in full force and effect unless the provision found to be invalid or unenforceable is of such material effect that this Agreement cannot be performed in accordance with the intent of the parties in the absence thereof.
i. The termination of Provider’s retention with Waste Fix, for any reason, shall not relieve either party of any of that party’s obligation under this Agreement existing at termination, or arising as a result of, or relating to acts of omission occurring prior to such termination. Without limiting the generality of the preceding sentence, in no event shall the termination modify or affect any of Provider’s obligations under Sections 2, 3, 4, 5, 7, 8, 9, 10, 11, and 13, which shall survive termination of this Agreement.
14. Notices
Except as set forth otherwise, any notice and other communication required or desired to be given by Provider to Waste Fix under this Agreement shall be in writing and shall be deemed given when delivered via the webform on the Waste Fix website, or via email at support@WasteFix.com.
Provider agrees to receive notice via email.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.