Independent Contractor Agreeement
This is an AGREEMENT between you and Boomtown Network, Inc. dba OvationCXM (“OvationCXM”) (“Agreement”) that defines the terms and conditions for OvationCXM to engage you to provide services to our customers and their end users as described in this Agreement. As used in this Agreement, the words “You,” "you" and "your" mean the Independent Contractor (“Technician”) entering into this Agreement as a condition of becoming eligible to receive “Work Order” offers from OvationCXM. As used in this Agreement “Work Order” means a local support dispatch, consultation, site survey, installation, troubleshooting, remote monitoring, repairing to OvationCXM’s customers and their end users (and all and each of these offerings are defined as the “Services”).
1. INFORMATION ABOUT OVATIONCXM.
OvationCXM provides a Platform, Mobile Application and database of information about you and other Independent Contractor Technicians, for use by OvationCXM and OvationCXM customers and their end users (collectively “OvationCXM Platform”). These end users are typically local “Businesses” who require technical support on an ongoing and on-demand basis remotely and on-premise.
2. INFORMATION ABOUT YOU.
To be eligible to receive “Work Order” offers from OvationCXM, you must certify that you are the person entering into this Agreement and that you are a qualified technician who possesses the necessary skill, knowledge, training, ability, and experience to perform some or all of the Services for OvationCXM customers and their end users.
3. ACCEPTANCE OF WORK ORDERS.
You will be eligible to receive offers from time to time from OvationCXM online system to provide Services to as set forth in separate Work Orders for each job only after you provide the information requested by OvationCXM and accept the terms and conditions of this Agreement.
Each Work Order will describe the Services to be provided, the fee for the Services, if applicable any special requirements or conditions that the OvationCXM Customer and/or their end user imposes such as, without limitation, satisfactory results on a background investigation and drug and/or alcohol testing, and any other terms and conditions governing the Services. OvationCXM will deliver each such Work Order to the OvationCXM Mobile Application and the email address that you provide. You must confirm your acceptance of the Work Order before performing any Services. At the request of OvationCXM, you also must complete the online W9 tax form as a condition of an offer of a Work Order.
You agree to provide the Services in a timely manner, competently, diligently and professionally, and to conduct yourself in accordance with Work Order descriptions and requirements for job conduct that OvationCXM establishes for visitors to its customer’s and/or their end users’ premises, including, but not limited to issues of on time arrival, job completion as described in the work order, appearance, workplace security, workplace conduct, and OvationCXM’s customer’s and their end users’ confidentiality.
You are not obligated to accept a fixed, or minimum, number of Work Orders. You maintain sole discretion to reject an offer of a Work Order. However, once you accept the offer of a Work Order, you are responsible for rendering the Services.
OvationCXM has no obligation to offer you a minimum number of Work Orders.
4. YOUR DUTIES AS AN INDEPENDENT CONTRACTOR
You will render the Services as an independent contractor. You will pay any and all payroll, self-employment, or other taxes of any nature imposed upon the compensation paid by OvationCXM to You for the rendering of the Services.
You will obtain workers compensation insurance if required by law, and keep such records, pay such other taxes or governmental fees, comply with applicable law and maintain such licenses as are required to perform the Services. You will be solely responsible for obtaining and either self-insuring or purchasing liability insurance in such amounts and coverage as you select. You understand that issues of liability that arise as a result of your negligence in the execution of a Work Order will be your responsibility. OvationCXM will not provide any contributions to unemployment insurance or workers compensation funds. Certain customers and/or their end users may require specific insurance coverages. You will carry such insurance as may be required by an applicable Work Order. OvationCXM recommends that You carry the following minimum insurance coverage: (i) workers compensation insurance as prescribed by the law of the state in which you render Services; (ii) employer liability insurance with limits of at least $1,000,000 per occurrence; (iii) comprehensive automobile liability insurance with a combined single limit per occurrence of at least $1,000,000 for bodily injury and property damage; (iv) comprehensive general liability insurance, including, broad form/property damage, bodily injury, products and completed operations, with a combined single limit per occurrence of at least $1,000,000; and (v) professional liability insurance with a minimum limit of $1,000,000 per occurrence. You will provide proof of required insurance coverage upon request by OvationCXM.
OvationCXM will not, and declines to, specify or control the means or methods of how you will render the Services. OvationCXM is relying on your skills, knowledge, training, ability, OvationCXM Platform and experience in the Services to enable you to determine and control how to render the Services in a Work Order in order to satisfy the objective of the customer and/or their end users and without OvationCXM supervision.
Except for the purpose of explaining how to use the OvationCXM Platform and otherwise responding to any questions that you have concerning a Work Order, OvationCXM has not provided, and will not provide, you with training or individual instruction with respect to how you render the Services to a customer’s and/or their end users’ satisfaction. Except for reading manuals associated with a Work Order, you will obtain the necessary technical and sales proficiency to render the Services at your own expense, or at the expense of another person or entity, by attending third party certifications at Your sole discretion.
You will not be entitled to any rights or benefits provided to employees of either OvationCXM or its customers or their end users including, without limitation, health insurance benefits, vacation or other time off, and other employee benefits. You are responsible for any expenses incurred to perform the Services.
The nature of the Services is also such that you will render them on the location of the OvationCXM customer or their end users, which may be either a residence or commercial establishment.
OvationCXM may from time to time publish Quality Guidelines as a means to ensure high accountability standards for each registered Independent Contactor Technician on the OvationCXM Platform. Any such Quality Guidelines are deemed to be incorporated herein by reference. To the extent that OvationCXM becomes aware of conduct that is in contravention of the Quality Guidelines then in effect, OvationCXM may take such action that it determines is necessary or appropriate in its sole discretion to remedy such violations. Such actions may include termination of access to the OvationCXM Platform and all appropriate legal action.
5. FAILURE TO PERFORM
If you fail to complete a Work Order to the reasonable satisfaction of a OvationCXM customer or their end users, OvationCXM reserves the right to offer the applicable Work Order to another Independent Contractor Technician with no compensation owed or payable to You.
6. YOUR INFORMATION
“Your Information” is defined as any information you provide to OvationCXM in the registration process, in any public message area or through any email feature or Mobile Application interaction. You are solely responsible for Your Information, and OvationCXM acts as a conduit for your online distribution and publication of Your Information. Information submitted through the OvationCXM Platform is governed according to OvationCXM’s Privacy Statement. Solely to enable OvationCXM to use the information you supply it with, so that OvationCXM is not violating any rights you might have in that information, you hereby grant OvationCXM a nonexclusive, worldwide, perpetual, irrevocable, royalty free, sub- licensable (through multiple tiers) right to exercise all rights you have in Your Information, in any media now known or not currently known, with respect to Your Information. OvationCXM will only use Your Information in accordance with these Terms and its other policies. Other than personal information as described in OvationCXM’s Privacy Statement, all data derived or collected by OvationCXM from any user of the OvationCXM Platform, including but not limited to statistical information, IP addresses, end user ratings or other relevant data shall belong to OvationCXM and/or its customers and you agree that OvationCXM and its customers, as applicable, shall have the right to use such data as they determine in their sole discretion. The foregoing includes the right to display industry affiliations, certifications and / or Preferred Professional Network Logos, where appropriate on the OvationCXM Platform or in user profiles.
OvationCXM may change its fees and credit policy from time to time. Any such changes are effective immediately upon posting of such changed terms on the OvationCXM Platform. In the event that OvationCXM introduces a new service, the fees for that service are effective as of the launch of the service. All fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using the OvationCXM Platform and all applicable taxes, if any.
8. VIOLATION OF USE OF OVATIONCXM PLATFORM
Without limiting other remedies, OvationCXM may terminate your access to the OvationCXM Platform if (a) You breach these terms; (b) OvationCXM is unable to verify or authenticate information you provide; or (c) OvationCXM believes that your actions may cause financial loss or legal liability for OvationCXM, you or OvationCXM’s customers or their end users.
9. LIMITATION OF AUTHORITY.
You will not have any authority to: (a) bind or obligate OvationCXM or subject OvationCXM to any liability except as expressly provided in this Agreement, or (b) do any other act on behalf of OvationCXM that is not expressly authorized in this Agreement.
You warrant that the Services that you will render will be performed in a timely, professional, diligent and competent manner. Any defects in your performance of the Services or other OvationCXM customer or their end users’ dissatisfaction with you will be remedied by you in a manner that is satisfactory to the customer and/or end user(s). You also warrant that you will comply with all applicable laws, rules and regulations in the performance of the Services.
All compensation paid to you is to be considered compensation for the proper handling by you of all phases of rendering the Services. OvationCXM will pay you the fee specified per our Fee Policy associated with a Work Order, and authorized by the OvationCXM customer and/or their end user, for your rendering of Services, and on the terms set forth in the Work Order. You will receive no other compensation other than as set forth in the Fee Policy and Work Order. You will be paid within ten business days electronically unless otherwise agreed to after satisfactory completion of the Services. Compensation is either a) one (1) hour minimum with billing of additional time beyond 1 hour in 10 minute increments; or b) flat rate pay for certain work orders where job is completed for agreed to rate. OvationCXM will report payments to you for tax purposes on a Form 1099.
If any OvationCXM customer or their end user is involved in a dispute with you arising from or related to your performance of the Services, OvationCXM may, in its sole discretion, assist you and such customers and their end user in resolving the dispute; provided, however, that OvationCXM will be solely responsible for all OvationCXM customers’ fee, billing, and payment matters. In the event of any dispute between you and a OvationCXM customer or their end user related to the Services that you provide, you will notify OvationCXM in writing of such dispute within one business day of becoming aware of such dispute. You will use your best efforts to resolve any such disputes within two business days after receiving such notice from an OvationCXM customer or their end user. Upon notice of any dispute, OvationCXM reserves the right to offer the applicable Work Order to another OvationCXM contractor with no payment obligation due or owing to you.
You will indemnify, defend and hold OvationCXM harmless from any and all liability, obligation, loss, damage, injury, penalty, action, judgment, suit, claim, cost, expense or disbursement of any kind or nature that may be imposed on, incurred by or served against OvationCXM by any OvationCXM customer, their end users, or other person or entity arising out of, or in connection with the Services, or any alleged act or neglect of you. You will provide OvationCXM with immediate notification of any claim received that names, or in any way involves, OvationCXM. Nothing in this Section affects your status as an independent contractor.
This Agreement and your Services may be terminated by either party without advance notice.
15. PROPERTY RIGHTS OF THE PARTIES
You will at all times maintain in strict confidence all personal and proprietary information of OvationCXM customers and their end users that you receive in the course of providing Services, including all Work Orders, end user addresses, and information on customer and/or end user premises to which you have access or obtain control. Such information will remain the exclusive property of OvationCXM, its customers, and their end users. You will not retain the originals or any copies of such information without OvationCXM’s prior written permission.
All records of the customers of OvationCXM, of any nature, whether existing at the time of this agreement, procured through the efforts of contractor, or learned by contractor from any other source, and whether prepared by contractor or otherwise shall be the exclusive property of OvationCXM. Contractor agrees that the names and addresses of OvationCXM customers constitute trade secrets of OvationCXM and that the sale or unauthorized use or disclosure of any of OvationCXM’s trade secrets obtained by contractor during the term of this Agreement constitutes unfair competition. Contractor agrees and promises not to engage in any unfair competition with OvationCXM. For a period of twenty four (24) months immediately following the termination of this agreement. Contractor shall not directly or indirectly make known to any person, firm or corporation the names or addresses of any of the customers of OvationCXM or any other information pertaining to them, or call on, take away, or attempt to call on, solicit or take away any of the customers of OvationCXM on whom contractor called on or with whom contractor became acquainted with, or the names and addresses of which contractor learned, saw, or became familiar or acquainted with, during the term of this Agreement, either on behalf of contractor, or any other person, firm or corporation. During the term of this Agreement, contractor will have to and become acquainted with various trade secrets, consisting of formulas, patterns, pricing, partners, devices, applications, secret inventions, processes, and compilations of information, records, and specifications, all of which are owned by OvationCXM and regularly used in the operation of OvationCXM’s business. All files, records, documents, drawings, specifications, applications, equipment, and similar items relating to the business of OvationCXM, whether they are prepared by contractor or come into contractor’s possession in any other way and whether or not they contain or constitute trade secrets owned by OvationCXM, are and shall remain the exclusive property of OvationCXM and shall not be removed from the possession or premise of OvationCXM under any circumstance whatsoever without the prior written consent of OvationCXM. Contractor shall not misuse, misappropriate, or disclose any of the trade secrets described herein, directly or indirectly, or use them in any way, either during the term of this Agreement or at any time thereafter. During the term of this Agreement, contractor shall not, directly or indirectly, either as a contractor, customer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in any business that is in competition in any manner whatsoever with the business of OvationCXM.
OvationCXM makes considerable efforts and incurs substantial expense to market to prospective customers requiring information about the Business. Accordingly, while engaged to render Services on any Work Order, you will not knowingly, directly or indirectly, solicit any customer (or their end users) or prospective customer who is a customer (or their end users) or prospective customer of OvationCXM or any of OvationCXM’s affiliates for the purpose of providing services that are competitive with the Business of OvationCXM.
Any breach of any of the covenants or agreements set forth in Sections 11 and 12 of this Agreement will cause OvationCXM irreparable harm for which there is no adequate remedy at law, and, without limiting whatever other rights and remedies OvationCXM may have under this paragraph, you consent to the issuance of an injunction in favor of OvationCXM enjoining the breach of any of the preceding covenants or agreements by any court of competent jurisdiction.
18. SURVIVING RIGHTS.
Notwithstanding the termination of this Agreement, the parties will be required to carry out any provisions of this Agreement that contemplate performance subsequent to such termination; and such termination will not affect any liability or other obligation that will have accrued prior to such termination including, but not limited to, any liability for loss or damage on account of a prior default.
OvationCXM may assign its rights under this Agreement to an affiliated or successor corporation or business entity.
All notices, requests, and other communications will be in writing and delivered electronically. OvationCXM will send any such communications to the last known email address that you provide, and you will send any such communications to the OvationCXM email address that it provides.
21. WAIVER, MODIFICATION OR AMENDMENT.
No waiver, modification or amendment of any term, condition or provision of this Agreement will be valid or of any effect unless made in writing, signed by the party to be bound or its duly authorized representative and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by any part of any default of the other will not affect or impair any right arising from any subsequent default. Nothing in this Agreement limits the rights and remedies of the parties under and pursuant to this Agreement, except as set forth above.
22. ENTIRE AGREEMENT.
This Agreement contains the entire agreement between OvationCXM and you and supersedes and cancels any and all other agreements, whether oral or in writing, between OvationCXM and you with respect to the matters referred to in this Agreement.
The provisions of this Agreement will be applied and interpreted in a manner consistent with each other so as to carry out the purposes and intent of the parties to this Agreement, which is to create an independent contractor relationship.
24. GOVERNING LAW.
These Terms shall be governed and construed in accordance with the laws of California without regard to its conflicts of law principals.
25. ATTORNEYS’ FEES
In any legal action, arbitration, or other proceeding brought to enforce or interpret the terms of these Terms, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs.
26. CONFIDENTIAL AGREEMENT
These Terms shall be confidential and shall not be disclosed by you to any third party without the prior written consent of OvationCXM.
27. EFFECTIVE DATE
These Terms will be effective so long as you acce, and these Terms will govern all Work Orders accepted and/or performed by you on behalf of OvationCXM.