Effective Date: June 3, 2016
This Aide Service Agreement ("Agreement") is made as of the date last written below between ADVENTURE AIDE, LLC, a California limited liability company ("Company" or "we"), and the undersigned ("Aide" or "you").
The Company's goal is to bring together Aide(s) and members of the public (collectively, "Users" or "customers" or "participants") for purposes of Aides promoting and providing Users high-quality, active and exciting outdoor adventures via the Company's Web site and/or software application (collectively, the "Site"). We believe relationships are built on expectations. Our expectations for the Aide(s) are contained in this Agreement. As part of the application process, we expect you to agree to the following terms upon your confirmed selection as an Aide for the Company.
During the Aide application process, you will be required to complete an online application via the Site and include, among other things, information about yourself, confirmation that you are at least 18 years of age, your experience, and a description of the adventure session(s) (collectively, the "Adventures") you intend to offer to Users via the Site. If you meet the Company's criteria, you will be invited to meet with one or more Company representatives and be given access to the Site to continue the application. To access the Site, your e-mail address will be validated and you will be required to connect to the Site via your Facebook account. Your account on the Site will not be activated, meaning you will be authorized to post Adventures on the Site, until (a) all of the steps of the application process are complete, (b) you have signed and returned the Agreement electronically, and (c) the Company has accepted your signature and electronically countersigned this Agreement.
IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "I ACCEPT" BUTTON INDICATED BELOW AND PROVIDE YOUR PERSONAL INFORMATION TO ACTIVATE YOUR ACCOUNT ON THE SITE AND CONTINUE YOUR AIDE APPLICATION.
IF YOU DO NOT AGREE TO THE BOUND BY ALL THE TERMS OF THIS AGREEMENT, THE COMPANY IS UNWILLING TO GRANT YOU ANY RIGHTS TO USE THE SITE, AND YOU MUST STOP YOUR USE OF THE SITE AND INDICATE YOUR REJECTION OF THIS AGREEMENT BY CLICKING THE "I DON’T ACCEPT" BUTTON. NOTWITHSTANDING THE FOREGOING, USING THE SITE INDICATES YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT.
In consideration of Aide's engagement with the Company (which for purposes of this Agreement shall be deemed to include any authorized subsidiaries and/or affiliates of the Company), the receipt of confidential information from the Company while associated with the Company, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, Aide agrees as follows:
- Engagement. Company hereby engages Aide as an independent contractor to provide the services specified in Schedule 1 (collectively, the "Services"), a copy of which is attached to this Agreement and incorporated herein by this reference.
1.1. Time Devoted. Aide shall devote such time and effort as is necessary to timely perform the Services and shall perform timely such other duties related to the Services as may be agreed between Company and Aide from time to time. Aide agrees and acknowledges Aide's engagement by the Company is not a full-time job and is not intended to be Aide's sole source of income.
1.2. Method of Performing Services. In providing the Services, Aide shall comply with all policies, standards and procedures of Company as identified from time to time, provided that Aide shall, in Aide's reasonable professional discretion, determine the methods and manner of performing the Services, without the direct supervision of Company. Aide shall devote Aide's utmost knowledge and best skill to the performance of the Services and shall exercise Aide's best judgment while interacting with the Users. Aide shall keep and maintain appropriate records relating to all Services rendered by Aide during the Period of Engagement (as defined in Section 4 below) and/or any renewal period. Aide shall purchase and supply all tools, materials and equipment required for the Aide to perform the Services.
1.3. Non-Exclusive Relationship. Aide may represent, perform services for, or be employed by such additional persons or entities as Aide sees fit for so long as all such services in no way conflict with Aide's past, present or future Services to Company. Except as otherwise permitted on Company's Site, Aide shall not at any time use the Company's name or any of the Company trademark(s) or trade name(s) in any advertising or publicity without the Company's prior written consent, which consent may be withheld or conditioned in Company's sole discretion.
2. Compensation. In consideration for the Services and for the discharge of all Aide's obligations hereunder, Company shall pay Aide the compensation as set forth on attached Schedule 1. Aide acknowledges that Company has no obligation to pay any compensation or to provide benefits or services of any kind to Aide other than as expressly provided in this Agreement.
3. Status as Independent Contractor. In performing the Services, Aide shall act solely as an independent contractor and not as an employee of Company. If Aide is a sole proprietorship, corporation, limited liability company or other business entity, Aide acknowledges that, to the extent Aide's employees, agents or affiliates (collectively, "Aide's Affiliates") also perform Services for Company (as may be authorized by Company in writing from time to time), they shall also be independent contractors of Company. Nothing contained in this Agreement, nor any aspect of the intended arrangement between the parties shall be deemed to constitute Aide or Aide's Affiliates as employees of Company, or as establishing a partnership or joint venture relationship with Company, for any reason whatsoever. Neither Aide nor Aide's Affiliates shall have authority to act on Company's behalf for any purpose. Aide and Aide's Affiliates are not considered employees of the Company and are not entitled to participate in any pension plans, medical insurance benefits, workers' compensation benefits, unemployment benefits, vacation, sick pay, or similar benefits that Company may provide to its employees.
3.1. Taxes. Company shall treat Aide as an independent contractor for all state and Federal tax purposes, including specifically for income and employment tax purposes. Therefore, Company shall not withhold state or Federal income taxes, social security taxes, or any other form of payroll deduction which is normally required only for employees, and these shall remain solely the obligations of Aide. Aide shall hold harmless and indemnify Company from and against, and shall assume full responsibility for, payment of all Federal, state and local taxes or contributions imposed or required under unemployment, social security, and income tax laws, with respect to Aide's performance under this Agreement. These obligations shall survive the termination or expiration of Aide's provision of Services for Company.
4. Term and Termination.
4.1. Term. The initial term of this Agreement shall be for a period of six (6) months from the date the Company accepts Aide's signature on this Agreement and executes the same. Thereafter, the Agreement shall automatically renew for up to two (2) successive one (1) year terms unless sooner terminated by either party. Either party may terminate this Agreement with five (5) calendar days' prior written notice, which will result in the deactivation of the Aide's account on the Site.
4.2. Termination for Breach. Notwithstanding anything to the contrary contained herein and subject to Section 4.4 below, this Agreement may be terminated by Company immediately upon written notice in the event of: (a) Aide's material breach of any of the provisions of this Agreement; (b) Aide's neglect of his/her duties; (c) Aide failure to appear for a scheduled Adventure; (d) unprofessional, unethical or fraudulent conduct by Aide or Aide's Affiliates, or conduct discrediting to Company's reputation or professional standing, which shall be determined by Company in its sole discretion; (e) consistently negative ratings by customers on the Site; (g) Aide's failure to comply with any reasonable requests by Company; or (f) Aide's account on the Site is "under review" by the Company as a result of any claim(s) filed against the Aide by a User.
4.2.1. For purposes of this Agreement, in the event an Aide's account on the Site is "under review" by the Company, Aide acknowledges that he/she shall not be permitted to post any new Adventures to the Site; provided, however, Aide shall be obligated to proceed with previously scheduled Adventures in accordance with the terms posted on the Site. Notwithstanding the foregoing, during the "under review" period, the Company, in its discretion, may (a) suspend Aide's account on the Site and cancel all scheduled Adventures and/or (b) deactivate the Aide's account on the Site.
4.3. Termination in Other Circumstances. Notwithstanding anything to the contrary contained herein and subject to Section 4.4 below, this Agreement shall terminate immediately if:
4.3.1. Circumstances occur that make it impossible or impracticable for Aide to continue Aide's performance of the Services;
4.3.2. Aide dies; or
4.3.3. Aide becomes permanently disabled and Aide is materially unable to perform Aide's obligations under this Agreement. For purposes of this Agreement, Aide's "permanent disability" shall be defined as Aide's failure, incapacity or inability to perform the services contemplated by this Agreement for a cumulative total of sixty (60) calendar days (which need not be consecutive) within any period of 365 days, because his/her physical or mental health shall have become impaired to such a degree that it is impossible for Aide to perform the material duties and responsibilities required of him/her hereunder.
4.4. Effect of Termination. Upon deactivation of Aide's account on the Site and/or termination or expiration of this Agreement, Company shall not be obligated to pay any further compensation or expense reimbursement to Aide, other than compensation accrued to the date of termination.
5.1. Definitions. "Proprietary Information" is all information and any idea in whatever form, tangible or intangible, pertaining in any manner to the business of the Company, or any of its affiliates, subsidiaries or its independent contractors, customers, consultants, or business associates, which was produced by any independent contractor or consultant of the Company in the course of its engagement or consulting relationship or otherwise produced or acquired by or on behalf of the Company. All Proprietary Information not generally known outside of the Company's organization, and all Proprietary Information so known only through improper means, shall be deemed "Confidential Information." By example and without limiting the foregoing definition, Proprietary Information and Confidential Information shall include, but not be limited to:
5.1.1. Company's travel/adventure software application and related services (collectively, the "Product"), models, designs, methods, formulas, compositions, systems, machines, computer programs, techniques, processes, trade secrets, logarithms, software, source code, object code, electronic codes, mask works, inventions, innovations, patents, patent applications, discoveries, improvements, data, know-how, formats, test results, and research projects;
5.1.2. information about costs, profits, markets, sales, contracts, lists of customers, manufacturers and distributors, pricing, data, and sources of supply;
5.1.3. business, marketing, and strategic plans;
5.1.4. forecasts, unpublished financial information, budgets, projections, and customer identities, characteristics agreements, security policies, finite state diagrams, product specifications, and design information;
5.1.5. ideas and concepts for work, including plans, projects and projections; and
5.1.6. personnel files and compensation information.
Confidential Information is to be broadly defined, and includes all information that has or could have commercial value or other utility in the business in which the Company is engaged or contemplates engaging, and all information of which the unauthorized disclosure could be detrimental to the interests of the Company, whether or not such information is identified as Confidential Information by the Company.
5.2. Existence of Confidential Information. The Company owns and has developed and compiled, and will develop and compile, certain trade secrets, proprietary techniques and other Confidential Information which have great value to its business. This Confidential Information includes not only information disclosed by the Company to Aide, but also information developed or learned by Aide during the course of Aide's engagement with the Company. The Company does not wish to receive any confidential information from Aide and the Company assumes no obligation, either express or implied, with respect to any information disclosed by Aide as a result of the discussions between the parties.
5.3. Protection of Confidential Information. Aide shall not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party, other than in Aide's assigned duties and for the benefit of the Company, any of the Company's Confidential Information, either during or after Aide's engagement with the Company.
5.4. Delivery of Confidential Information. Upon request or when Aide's engagement with the Company terminates or expires, Aide shall immediately deliver to the Company all copies of any and all materials and writings received from, created for, or belonging to the Company including, but not limited to, those which relate to or contain Confidential Information, drawings, reports, manuals, correspondence, customer lists, computer programs, flash drives, projections, and all other materials in any way related to the Company's business, and all copies, notes and abstracts thereof.
5.5. Location, Reproduction, Exhibition and Distribution. Aide shall maintain at Aide's home workstation and/or any other place under Aide's control only such Confidential Information as Aide may have a current "need to know." Aide shall return to the appropriate person or location or otherwise properly dispose of Confidential Information once that need to know no longer exists. Aide shall not make copies of or otherwise reproduce, exhibit or distribute Confidential Information unless there is a legitimate business need of the Company for reproduction, exhibition, or distribution.
5.6. Prior Actions and Knowledge. Aide represents and warrants that, from the time of Aide's first contact with the Company, Aide held in strict confidence all Confidential Information and has not disclosed any Confidential Information, directly or indirectly, to anyone outside the Company, or used, copied, published, or summarized any Confidential Information, except to the extent otherwise permitted by this Agreement.
5.7. Third-Party Information. Aide acknowledges that the Company has received and in the future will receive from third parties certain confidential and proprietary information subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain limited purposes. Aide agrees that, during the Period of Engagement and thereafter, Aide shall hold all such information in the strictest confidence and not disclose or use it, except as necessary to perform Aide's obligations hereunder and as is consistent with the Company's agreement with such third parties.
5.8. Third Parties. Aide represents that Aide's engagement with the Company does not and will not breach any agreements with or duties to a former employer or any other third party. Aide shall not disclose to the Company or use on its behalf any confidential or proprietary information belonging to others and Aide shall not bring onto the premises of the Company any confidential or proprietary information belonging to any such party unless consented to in writing by such party.
6.1. Prohibited Acts. Except with the prior written consent of a manager of the Company, Aide shall not, during the Period of Engagement:
6.1.1. engage in any engagement or activity other than for the Company in any business in which the Company is engaged or contemplates engaging; or
6.1.2. solicit any customers, potential customers, other Aides and/or potential other Aides of the Company for products or services similar to those offered or performed by the Company even though not directly competitive with such products or services.
6.2. Inducement. Except with the prior written consent of a manager of the Company, Aide will not, either during the Period of Engagement or for a period of one (1) year thereafter, interfere with the business of the Company by inducing an independent contractor or employee to leave the Company's engage or by inducing a vendor or consultant to terminate or alter the vendor's or consultant's relationship with the Company.
6.3. Solicitation. Because information relating to the identities, key contact personnel, preferences, needs and circumstances of the Company's customers are trade secrets belonging to the Company that necessarily are and will be used by Aide in the solicitation of business from the Company's customers, Aide agrees that for a period of one (1) year following the termination of Aide's engagement with the Company, Aide will not solicit the business of any customer of the Company for services or products similar to those offered by the Company unless Aide first obtains the written consent of a manager of the Company.
7. Representations and Warranties. Aide represents and warrants (i) that Aide has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with Aide's undertaking a relationship with the Company; (ii) that, to the best of Aide's knowledge, the performance of the Services called for by this Agreement do not and will not violate any applicable law, rule or regulation or any proprietary or other right of any third party applicable to Aide; (iii) that Aide will not use in the performance of Aide's responsibilities for the Company any materials or documents of a former engager or employer; (iv) Aide has the qualifications and ability to perform the Services in a professional manner, without the advice, control or direct supervision of the Company; (v) Aide shall retain control over and exercise good judgment regarding where and what type of Adventure to lead, how to perform the Services by conducting the Adventure and how to interact appropriately with Users while on the Adventure; and (v) that Aide has not entered into or will enter into any agreement (whether oral or written) in conflict with this Agreement. Aide shall be solely responsible for the reporting and payment of all applicable taxes, including income taxes and estimated taxes, Social Security taxes, and any other applicable withholdings, deductions, and payments related to the income received by Company for its services to Company. As may be appropriate from time to time, Aide will provide workers compensation insurance for each of his/her employees and will provide proof of such insurance prior to performing Services for Company. Aide will make all appropriate tax payments, withholdings and deductions for each of its employees.
8. Waiver of Liability, Limitation of Liability, Assumption of Risk & Indemnification.
8.1. Waiver of Liability & Limitation of Liability. FOR AND IN CONSIDERATION OF AUTHORIZING AIDE TO POST AND ADVERTISE ADVENTURES ON THE COMPANY'S WEB SITE AND LEADING THOSE ADVENTURES FOR PARTICIPANTS USING THE COMPANY'S WEB SITE, THE AIDE, FOR HIMSELF/HERSELF, HIS/HER HEIRS, PERSONAL REPRESENTATIVES, AND/OR ASSIGNS, DOES HEREBY RELEASE, DISCHARGE, WAIVE AND COVENANT NOT TO SUE THE COMPANY, ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, AFFILIATES AND RELATED ENTITIES FROM LIABILITY FROM ANY AND ALL CLAIMS INCLUDING THE NEGLIGENCE OF THE COMPANY, ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, AFFILIATES AND RELATED ENTITIES, RESULTING IN PERSONAL INJURY, ACCIDENTS OR ILLNESSES (INCLUDING DEATH), AND/OR PROPERTY LOSS ARISING FROM, BUT NOT LIMITED TO, THE PLANNING AND DEVELOPMENT OF AND/OR PARTICIPATION IN THE ADVENTURE. AIDE ACKNOWLEDGES AND AGREES THAT (A) HE/SHE IS SOLELY RESPONSIBLE FOR IDENTIFYING AND DEVELOPING ALL ASPECTS OF THE ADVENTURE, LEADING USERS ON THE ADVENTURE, AND ASSESSING THE USERS' RESPECTIVE ABILITIES TO PARTICIPATE IN THE ADVENTURE; AND (B) THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY ASPECT OF THE ADVENTURE, INCLUDING, BUT NOT LIMITED TO, AIDE'S SELECTED LOCATION, TIMING, WEATHER CONDITIONS, GEAR UTILIZED, THE HEALTH, SAFETY OR WELL-BEING OF PARTICIPANTS ON THE ADVENTURE, OR ASSESSING THE USER'S ABILITY TO PARTICIPATE IN THE ADVENTURE.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED BY THE COMPANY OR THE AIDES OR PUBLISHED ON THE SITE MAY INCLUDE INACCURACIES OR ERRORS, INCLUDING PRICING ERRORS MADE BY THE AIDES. WE DO NOT GUARANTEE THE ACCURACY OF, AND DISCLAIM ALL LIABILITY FOR ANY ERRORS OR OTHER INACCURACIES RELATING TO SUCH INFORMATION THAT APPEARS ON OUR SITE. WE EXPRESSLY RESERVE THE RIGHT TO ALLOW AIDES TO CORRECT ANY PRICING ERRORS ON OUR SITE AND/OR ON PENDING BOOKINGS MADE UNDER AN INCORRECT PRICE. IN SUCH EVENT, IF AVAILABLE, WE WILL OFFER YOU THE OPPORTUNITY TO KEEP YOUR PENDING RESERVATION AT THE CORRECT PRICE OR WE WILL CANCEL YOUR RESERVATION WITHOUT PENALTY.
ANY RATINGS FOR AIDES ARE INTENDED ONLY AS GENERAL GUIDELINES, AND WE DO NOT GUARANTEE THE ACCURACY OF THE RATINGS. WE MAKE NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC ADVENTURES. WE MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED BY US OR CONTAINED ON OUR SITE FOR ANY PURPOSE. THE INCLUSION OR OFFERING OF ANY ADVENTURES BY US DOES NOT CONSTITUTE OUR ENDORSEMENT OR RECOMMENDATION OF SUCH ADVENTURE OR AIDE. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE COMPANY DISCLAIMS ALL WARRANTIES THAT THE SITE, ITS SERVERS OR ANY EMAIL SENT FROM THE COMPANY OR THE AIDES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. WARRANTY DISCLAIMERS MAY VARY FROM STATE TO STATE.
THE AIDES PROVIDING ADVENTURES ON THIS SITE ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF THE COMPANY. THE COMPANY SHALL NOT BE LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH AIDES OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. THE COMPANY HAS NO LIABILITY AND SHALL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND ITS CONTROL, AND THE COMPANY SHALL HAVE NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING OR ACTS OF ANY GOVERNMENT OR AUTHORITY. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, YOUR ACCESS TO, DISPLAY OF OR USE OF THE SITE OR ITS SERVICES OR WITH THE DELAY OR INABILITY TO ACCESS, DISPLAY OR USE THE SITE WHETHER BASED ON A THEORY OF NEGLIGENCE, CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, DESPITE THE LIMITATIONS PROVIDED ABOVE, THE COMPANY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE WHICH ARISES OUT OF OR IN ANY WAY CONNECTED WITH ANY OF THE OCCURRENCES DESCRIBED ABOVE, THEN THE COMPANY'S LIABILITY SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) THE FEES YOU RECEIVED FROM THE COMPANY VIA THE SITE IN CONNECTION WITH THE ADVENTURE AT ISSUE, OR (B) ONE HUNDRED DOLLARS ($100.00 USD). THE LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.2. Assumption of Risks. Aide understands and acknowledges that leading and/or participating in the Adventure carries with it the possibility that Aide may be exposed to a variety of hazards and risks, foreseen and unforeseen, which are inherent to the Adventure and cannot be eliminated without altering the intent of the Adventure. These inherent risks, include, but are not limited to possible bodily injury, annoyance, harassment, or stalking by other Aides or participants, identity theft, property damage, and death. Aide knows these injuries and/or damages can occur by natural causes or activities of other persons, including other Adventure participants, Aides or unrelated third parties. Aide has read the previous paragraph, and knows, understands and appreciates these and other risks that are inherent in the Adventure. Aide hereby asserts that his/her participation in the Adventure is voluntary and that he/she is not required to do so. IN PARTICIPATING IN THE ADVENTURE, AIDE VOLUNTARILY AND FREELY ASSUMES ALL RISK OF ACCIDENT, ILLNESS OR DAMAGE TO OR LOSS OF PROPERTY AS IDENTIFIED HEREIN FOR HIMSELF/HERSELF AND THIRD PARTIES PARTICIPATING IN THE ADVENTURE(S). The Company shall not be responsible to any person for any of Aide's acts, omissions, negligence, or damage to facilities.
8.3. Indemnification and Hold Harmless. To the maximum extent permissible by law, Aide hereby waives, discharges claims, and releases from liability the Company, its officers, managers, members, employees, agents, affiliates and related entities from any and all liability on account of, or in any way resulting from any injury or damage resulting from the negligence, or other acts, howsoever caused by any employee, agent or contractor of the Company. Aide further agrees to indemnify and hold harmless the Company, its officers, managers, members, employees, agents, affiliates and related entities from and against any and all claims, demands, losses, obligations, actions, suits, procedures, costs, expenses, damages, recoveries and deficiencies, injuries, liabilities or losses, including without limitation, interest, penalties and reasonable attorneys' fees and costs, that Company may incur or suffer and that arise, result from or are related to (i) Aide's negligence, (ii) Aide's leading and/or participation in an Adventure and/or any travel to or from the Adventure, (iii) Aide's willful acts, or any breach or failure of Aide to perform any of its representations, warranties and covenants contained in this Agreement, (iv) your use of the Site, (v) your violation of any law or rights of any third party, and (vi) allegation(s) by a third party that the Aide's posting on the Site infringes or otherwise violates any copyright, trademark or other proprietary right of a third party. Aide shall reimburse the Company for any such expenses incurred. These obligations shall survive the termination or expiration of Aide's provision of Services to Company.
8.4. Severability. Aide further expressly agrees that the foregoing waiver, limitation of liability, assumption of risks and indemnification agreement is intended to be as broad and inclusive as is permitted by the law of the State of California and that if any portion thereof is held invalid or legally unenforceable for any reason, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
9. Termination Obligations.
9.1. Company Records. Upon the termination of Aide's relationship with the Company or promptly upon the Company's request, Aide shall surrender to the Company all equipment, tangible Proprietary Information, documents, books, notebooks, records, reports, notes, memoranda, drawings, sketches, models, maps, contracts, lists, computer disks (and other computer-generated files and data), any other data and records of any kind, and copies thereof (collectively, "Company Records"), created on any medium and furnished to, obtained by, or prepared by Aide in the course of or incident to Aide's engagement, that are in Aide's possession or under Aide's control.
9.2. Survival Period. Aide's representations, warranties, and obligations contained in this Agreement shall survive the termination of the Period of Engagement.
9.3. Future Cooperation. Following any termination of this Agreement or expiration of the Period of Engagement, Aide will fully cooperate with the Company in all matters relating to Aide's continuing obligations under this Agreement.
9.4. Notification. In the event that Aide leaves the engage of the Company, Aide hereby grants consent to notification by the Company to Aide's new engager and/or employer about Aide's rights and obligations under this Agreement.
11. Miscellaneous Provisions. The following miscellaneous provisions shall apply to this Agreement:
11.2. Amendments. This Agreement may not be amended, altered or modified except by a written instrument signed by all of the parties.
11.3. Binding Effect. This Agreement shall be binding upon Aide, Aide's heirs, executors, assigns and administrators, and is for the benefit of the Company and its successors and assigns.
11.4. Governing Law; Venue. It is specifically stipulated and agreed that this Agreement shall be interpreted and construed according to the laws of the State of California without regard to its conflicts of laws principles. Venue for any dispute arising under this Agreement shall be in the courts in and for San Luis Obispo County, California.
11.5. Severability. If any term, provision, covenant or condition of this Agreement, or the application thereof to any person, place or circumstance, shall be held to be invalid, unenforceable or void, the remainder of this Agreement and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect.
11.6. Construction. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not limitation, this Agreement shall not be construed against the party responsible for any language in this Agreement.
11.7. Assignment. This Agreement may not be assigned by Aide without the Company's prior written consent, which may be withheld or conditioned in Company's discretion. The Company may freely assign this Agreement.
11.8. Engagement at Will. This Agreement is not an employment agreement. Aide understands that the Company or Aide may terminate Aide's association or engagement with the Company at any time, with or without cause, subject to notice of five (5) calendar days and the terms of any separate written agreement executed by a duly authorized manager of the Company and Aide.
11.9. Injunctive Relief. Aide acknowledges that Aide's failure to carry out any obligation under this Agreement, or a breach by Aide of any provision herein, will constitute immediate and irreparable damage to the Company, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an order for specific performance, and other equitable relief. Aide further agrees that no bond or other security shall be required in obtaining such equitable relief and Aide hereby consents to the issuance of such injunction and to the ordering of specific performance. Aide also understands that other action may be taken and remedies enforced against Aide by the Company.
11.10. Arbitration. Except for any claim seeking the exercise of the injunctive or equitable powers of a court of competent jurisdiction, any action to enforce or interpret this Agreement, or to resolve disputes with respect to this Agreement, shall be settled by arbitration in accordance with California Code of Civil Procedure Sections 1280 through 1294.2 and any successor provisions thereto. The provisions of California Code of Civil Procedure Section 1283.05 regarding the right to take depositions and obtain discovery shall apply to the arbitration. Arbitration shall be the exclusive dispute resolution process. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of arbitration shall be in San Luis Obispo County, California. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. The prevailing party shall be entitled to reimbursement of attorneys' fees, costs, and expenses incurred in connection with the arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision.
11.11. Attorneys' Fees. If any legal proceeding, arbitration or other action is brought or threatened for the enforcement or interpretation of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, and the prevailing party in any such action(s) should incur any legal fees, including, but not limited to, attorneys' fees, paralegal fees, expert witness fees and other similar costs, the successful or prevailing party or parties to any such dispute or action shall be entitled to recover their reasonable attorneys' fees and additional legal costs incurred, together with any other relief to which they may otherwise be entitled, as determined by an arbitrator, judge at trial, or upon appeal or petition.
Attorneys' fees and legal costs incurred by the successful or prevailing party in enforcing any judgment or arbitration award shall also be recoverable as a separate item. This provision for post-judgment attorneys' fees and legal costs is intended to be severable from the remaining provisions of this Agreement, shall survive any judgment or arbitration award, and shall not be merged into any judgment or arbitration award.
11.12. Rights Cumulative. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either the Company or Aide (or by that party's successor(s) or authorized assigns), whether pursuant hereto, to any other agreement, or to law, shall not preclude or waive that party's right to exercise any or all other rights and remedies. This Agreement will inure to the benefit of the Company and its successors and assigns.
11.13. Non-Waiver. The failure of either the Company or Aide, whether purposeful or otherwise, to exercise in any instance any right, power or privilege under this Agreement or under law shall not constitute a waiver of any other right, power or privilege, nor of the same right, power or privilege in any other instance. Any waiver by the Company or by Aide must be in writing and signed by Aide and a manager of the Company.
11.14. Notices. Any notice, request, consent or approval required or permitted to be given under this Agreement or pursuant to law shall be sufficient if it is in writing, and if and when it is hand delivered or sent by regular mail, with postage prepaid, to Aide's principal office (as noted in the Company's records), or to the Company's principal office, as the case may be.
11.15. Date of Effectiveness. This Agreement shall be deemed effective as of the commencement of Aide's engagement with the Company.
11.16. Counterparts. This Agreement and any amendment hereto may be executed in one or more counterparts and delivered by facsimile, email or other means of electronic transmission, each of which shall constitute one and the same instrument. A copy of this Agreement that is executed by a party and transmitted by that party to any other party by facsimile, email and other electronic means shall be binding on each signatory thereto to the same extent as a copy of this Agreement containing the signatory's original signature.
11.17. Headings. All headings in this Agreement are inserted only for convenience and ease of reference, and are not to be considered in the construction or interpretation of any provision of this Agreement.
11.18. Authority. Each individual executing this Agreement on behalf of a party hereto, by his or her signature, represents that he or she maintains full authority on behalf of the applicable party to execute this Agreement, and thereby bind the applicable party to all covenants, duties and obligations contained herein.
11.19. Exhibits. All exhibits and schedules to this Agreement as referenced in any portion hereof are hereby incorporated by this reference, as though fully set forth in the body of this Agreement.
11.20. Time. Time is agreed to be of the essence with respect to this Agreement.
11.21. Additional Instruments; Agreement to Perform Necessary Acts. The parties shall execute such other instruments and documents as are or may become necessary or convenient to carry out the intent and purposes of this Agreement. Aide agrees to perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement.
11.22. Force Majeure. Neither party shall be liable to the other for failure to perform any of the services, duties or obligations (other than for delay in the payment of money due and payable hereunder) required of such party herein in the event of acts of God, war, acts of war, terrorism, revolution, civil commotion, riots, acts of public enemies, blockage or embargo, delays of carriers, car shortage, fire, explosion, breakdown of equipment, strike, lockout, labor dispute, casualty or accident, earthquake, epidemic, flood, cyclone, tornado, hurricane or other windstorm, delays of vendors or other contingencies interfering with production or with customary or usual means of transportation, or by reason of any law, order, proclamation, regulation, ordinance, demand, requisition or requirement or any other act of any governmental authority, local, state or federal, including court orders, judgments or decrees, or any other cause whatsoever, whether similar or dissimilar to those above affected over which such party has no control. The party affected by an event of the sort enumerated in or contemplated by this Section may suspend performance of this Assignment for a period of time equal to the duration of the event excusing such performance.
11.23. Independent Aide Acknowledgment. Aide acknowledges that Aide has had the opportunity to consult legal counsel in regard to this Agreement, that Aide has read and understand this Agreement, that Aide is fully aware of its legal effect, and that Aide has entered into it freely and voluntarily, based on Aide's own judgment and not on any representations or promises other than those contained in this Agreement.
1. Services – Scope of Work:
Aide shall be solely responsible for organizing, preparing for, and leading Users on various Adventures, which will be posted on the Company's Site. Aide shall be solely responsible for differentiating Aide's Adventure from other Adventures posted on the Company's Site. The Company has no obligation to promote any Adventure appearing on the Site.
In connection with performance of the Services, Company requires that the following items will be completed:
• At all times, Aide shall abide by the Community Guidelines (the "Community Guidelines") prepared by the Company, as amended from time to time. The terms and conditions contained in the Community Guidelines are hereby incorporated by reference into this Agreement. In the event of any conflict between this Agreement and the Community Guidelines, the terms of this Agreement shall govern.
• Adventures submitted for posting on the Site shall adhere to the Community Guidelines and shall be considered "pending" until approved by the Company. The Aide shall set the price for each Adventure. The Company shall retain a service fee from each completed Adventure. Users must register for Adventures via the Site. No Adventure shall be conducted without the prior registration of each User. Drop-in Users must register and pay for an Adventure via the Site before being permitted to participate. Aide shall not accept payment for an Adventure outside the Site.
• Aide shall communicate regularly with the Users who have accepted the Aide's Adventure(s) via the Site's messaging service. In advance of each Adventure, Aide shall greet the Users, answer questions, and provide the Users with any additional details that the Users need to know about the upcoming Adventure.
• Aides shall respond to either approve or reject User booking requests within forty-eight (48) hours of the User making the booking request (the "Response Period"). Failure to respond to Users during the Response Period will be reflected in Aide's profile on the Site, which shall be comprised of information supplied by the Aide as well as information supplied by the Company, which shall include, but not be limited to, statistics on the Aide's Adventures, the Aide's response times, and the Aide's rating on the Site (as is described in more detail below).
• Aides shall be on time for all scheduled Adventures. Only the Aide may lead Adventures posted on the Company's site. No third party Aide substitution shall be permitted.
• Alcohol shall not be permitted on any Adventure.
• You are responsible for your password to access the Site. You should keep it safe and ensure no third party can access your account on the Site.
• For security reasons, Aide should not provide Aide's personal information or payment information to any third party outside the Site.
• At all times, Aide shall exercise his/her best judgment in conducting the Adventures, including, but not limited to, being prepared for emergencies, well-versed in safety for the benefit of the Users, and/or being prepared to cancel an Adventure in the event of inclement weather, unsafe conditions, and/or unforeseen issues.
2. Compensation, Payment Terms & Cancellation Policy.
Aide shall be paid seventy percent (70%) of the amount collected by the Company for each completed Adventure. This percentage may change, in the Company's sole discretion, based on the Aide's performance. The balance shall be retained by the Company as its service fee.
The Company uses Braintree, a division of PayPal, Inc. ("Braintree"), for payment processing services on the Site. To receive payment, Aide shall be required to register with Braintree's payment processing service and to maintain Aide's current bank account or credit card information with the Braintree. By using the Braintree payment processing services, Aide acknowledges and agrees to the terms and conditions contained in Braintree's Payment Services Agreement, as may be amended from time to time, available at https://www.braintreepayments.com/legal/gateway-agreement and incorporated by this reference, and the applicable Braintree Bank Agreement, as may be amended from time to time, available at https://www.braintreepayments.com/legal/cea-wells and incorporated by this reference. The Company or Braintree annually shall file Form 1099-MISC, Miscellaneous Income to report compensation paid to Aide to the IRS. The Company and Braintree are each PCI compliant.
If the Aide does not accept the User's booking request within twelve (12) hours of the Adventure's designated start time (the "Start Time"), the booking request will be canceled. If the booking request for an Adventure has been accepted by the Aide and the User cancels his/her booking for the Adventure at least twelve (12) hours before the Adventure's Start Time, the User's funds will be fully refunded from Braintree's Escrow Service into the User's bank account or credit card. If the User cancels his/her booking for the Adventure within twelve (12) hours of the Start Time, the User may (or may not) receive a refund, in the Aide's discretion. The period during which a User may request a refund (the "Refund Period") commences twelve (12) hours before the Start Time and ends four (4) hours after the amount of time allotted for the Adventure's duration. During the Refund Period, a User may request a refund from the Aide in writing via the Site's messaging service and explain the reason for the cancellation. Aide shall decide whether or not to refund the User's funds via Braintree's Escrow Service.
Aide shall promptly respond to the User's request via the Site's messaging service. The Refund Period shall be the only time during which a User may request a refund from an Aide. Following the expiration of the Refund Period, a User may submit a claim for a refund (a "Claim") in writing to the Company.
The Aide may cancel a scheduled Adventure prior to the Start Time based on weather, conditions, unforeseen issues, or emergency, but the Aide must provide the reason for the cancellation to the User. If the Aide cancels the Adventure due to illness after accepting the booking request, the User's funds shall be fully refunded by the Aide to the User's bank account or credit card and Aide shall not be compensated for the cancelled Adventure. If a Claim is made and the Company, in its sole discretion, determines based on the facts and circumstances that the User deserves a refund, the Company may issue to the User a credit towards another Adventure. The Company plans to use Claims to build case studies for purposes of finding reasons to adjust its policies from time to time.
3. Aide Ratings.
Aide acknowledges and agrees that Users will be given an opportunity to rate their experience on the Adventure(s). Rating the Aide is part of rating the experience. Users will be able to provide a "thumbs up" or "thumbs down" rating at the conclusion of an Adventure. If a User selects "thumbs down," the User will be required to provide a comment; if a User selects "thumbs up," the User will have the option to provide a comment. An Aide's rating on the Site is based on the rating of the Aide's Adventure(s), the accumulation of all of the Users' experiences, and other factors. An Aide's rating is based on a percentile system showing the aggregated percentage of "thumbs ups" ratings. Consistently negative ratings by Users shall be grounds for the Company to put Aide's account "under review."
BY SIGNING BELOW, I ACKNOWLEDGE THAT (1) I AM 18 YEARS OF AGE OR OLDER; (2) I AM SIGNING THE AGREEMENT FREELY AND VOLUNTARILY; AND (3) I HAVE READ, I UNDERSTAND, AND I AGREE TO THE WAIVER, RELEASE, LIMITATION OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY PROVISIONS CONTAINED IN THIS AGREEMENT.
Effective Date: June 3, 2016