Standard Independent Contractor Personal Shopper Agreement
Updated on 2/12/2021
Article 1. The Parties
This Agreement is entered into by Carried Out, LLC (Carried Out) and Personal Shopper (Personal Shopper). Personal Shopper may enter into this agreement as an individual, LLC, or other legal entity.
Article 2. Effective Date/Duration
This Agreement shall be effective on the date the Agreement is signed (to signing page) by the Personal Shopper and approved by Carried Out (Approval signature binds Carried Out to the Agreement) and shall remain in effect until terminated as set forth in Article 6.
Article 3. Purpose
Carried Out and Personal Shopper enter into this agreement to provide Personal Shopper the opportunity of providing personal shopping, pickup and delivery services to members of Carried Out.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MEDIATION AND ARBITRATION PROVISIONS IN ARTICLE 7 AS THEY REQUIRE THE PARTIES TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS THROUGH MEDIATION AND, IF UNSUCCESSFUL, FINAL AND BINDING ARBITRATION.
BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING THE MEDIATION AND ARBITRATION PROVISIONS SET FORTH IN ARTICLE 7, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
Article 4. Personal Shopper
As a prerequisite to providing services pursuant to this Agreement, Personal Shopper agrees to the following terms and conditions:
When providing services pursuant to this Agreement, The Personal Shopper understands and expressly agrees that they are (and shall be at any and all times) an independent contractor and not an employee of Carried Out.
Personal Shopper shall have no claim against Carried Out hereunder or otherwise (i) for vacation pay, paid leave, retirement benefits, social security, workers compensation, health or disability benefits, unemployment insurance benefits or other benefits of any kind and (ii) for any and all costs whatsoever incurred by the Personal Shopper associated with their providing services pursuant to this Agreement.
The Personal Shopper understands and agrees that this means they will be solely responsible for paying all their own taxes including Medicare and Social Security and any other taxes required by the Federal, State, County or Municipal Governments and that Carried Out will not be withholding any tax from payments due and owing to the Personal Shopper.
The Personal Shopper further understands and agrees that this means they will be solely responsible for any and all costs whatsoever (including but not limited to bond, liability insurance, vehicle upkeep and repairs, gas, traffic tickets, auto accidents, health insurance, supplies and equipment), damage to or loss of member’s goods) incurred by the Personal Shopper associated with their providing services pursuant to this Agreement.
The Personal Shopper further understands and agrees that this means they will be responsible for paying any and all costs (including payment for services rendered and as set forth in the three preceding paragraphs) associated with using their employees or other persons to provide services pursuant to this Agreement.
The Personal Shopper further understands and agrees that this means, as an independent business enterprise, they retain the right to perform services (whether personal shopper services or other services) for others and to hold themselves out to the general public as a separately established business and that nothing in this Agreement shall prevent them from engaging in similar arrangements with others and nothing in this Agreement prevents Personal Shopper from doing business with others.
The Personal Shopper further understands and agrees that this means they have the right to perform services for other businesses, members or consumers at any time, even if such business directly competes with Carried Out, and even during any time that they had previously indicated their availability to accept assignments from Carried Out.
Prior to being dispatched to any shopping, pickup and/or delivery assignments from Carried Out, Personal Shopper shall:
Provide Carried Out with a completed IRS Form W-9.
Watch the Carried Out’s introductory video and attend an orientation session.
Provide Carried Out with a current driver’s license, proof of auto registration and proof of auto liability insurance for all persons providing personal shopping services pursuant to this Agreement.
Consent to and pass a background check.
By signing this Agreement, attest that they have all the equipment, supplies and personnel necessary to provide the personal shopping services contemplated by this Agreement.
By signing this Agreement, attest that they operate an independently established enterprise that provides personal shopping, delivery and other services, and that they satisfy all legal requirements and have all necessary licenses and permits necessary to perform the personal shopping services contemplated by this Agreement.
Personal Shopper assignments shall be at the sole discretion of Carried Out and subject to member demand. The Personal Shopper understands and agrees that they are not guaranteed a minimum number of assignments by Carried Out.
Personal Shopper shall be free to choose the number of hours and the days that they will be available to accept assignments from Carried Out. However, to minimize unnecessary intrusions in their daily life, Personal Shopper may at their discretion submit an availability schedule to Carried Out at the first of every month.
Personal Shopper shall be free to accept or reject any assignment. However, once accepted, the Personal Shopper shall be contractually bound to complete the assignment in accordance with all member specifications and in a timely, efficient, safe, and lawful manner. However, if a Personal Shopper accepts an assignment to be fulfilled at a future date, the Personal Shopper may cancel such acceptance by giving notice to the Carried Out’s dispatcher no later than 5pm two days prior to the scheduled fulfilment date. The two day requirement may be waived for good cause at the sole discretion of Carried Out.
Personal Shopper agrees that a member has the right to decline their services for any reason whatsoever even if Carried Out would otherwise offer Personal Shopper the Fulfilment Assignment.
Personal Shopper shall have the sole right to control the manner, method or means they use to perform services pursuant to this Agreement. Personal Shopper shall be solely responsible for determining the most effective, efficient, and safe manner to perform the contracted services including determining the manner of shopping, pickup, delivery and route selection. Personal Shopper agrees to immediately notify Carried Out in writing at . if Personal Shopper’s feels that Carried Out is interfering with their rights set forth in this paragraph.
As a corollary of their rights and responsibilities set forth in the above paragraph, Personal Shopper understands and agrees that they are responsible for any goods that are damaged or otherwise rendered unsafe while in their possession (including but not limited to thawing or melting frozen foods) and will replace such items upon request of the member. Any refund to a member in lieu of product replacement by Carried Out shall be charged back to the Personal Shopper and may be deducted from any payment that Carried Out would otherwise owe Personal Shopper. This paragraph shall survive any termination of this Agreement.
Personal Shopper understands and agrees that even though they may ask Carried Out for assistance to help overcome a challenge with a specific purchase, pickup and/or delivery (i) Carried Out will only give suggestions to Personal Shopper about how to overcome the challenge (ii) Personal Shopper retains the right to make any final decision and (iii) said request and any suggested avenues to overcome the challenge do not abrogate the Personal Shopper’s rights as set forth in the preceding paragraph. Except for giving suggestions to Personal Shopper, Carried Out shall not take any action to assist the Personal Shopper to overcome a challenge unless the Personal Shopper directs Carried Out to take the contemplated action. The provisions of this paragraph do not prohibit Carried Out from relaying member complaints to Personal Shopper or resolving any dispute with a member with whom Carried Out has a contractual relationship. Any dispute that Carried Out resolves with a member may trigger the provisions set forth in the Indemnification Paragraph set forth below.
Personal Shopper shall use personal member information provided to them by Carried Out only for fulfilling personal shopping, pickup and delivery assignments pursuant to this Agreement and shall otherwise maintain the confidentiality of such information. This paragraph shall survive any termination of this Agreement.
Personal Shopper during the duration of this Agreement and for the 2 years immediately following its termination shall not outside of this Agreement (i) offer their personal shopping, pickup and delivery services to any of their Carried Out members or (ii) participate in any plan to solicit their Carried Out members for personal shopping and delivery services. This paragraph shall survive any termination of this agreement.
Personal Shopper shall use their own credit card/debit card/cash when fulfilling orders placed by members.
Personal Shopper shall be entitled to 100% of any gratuity paid by the member upon delivery of a fulfilment order. This includes any gratuity paid directly to the Personal Shopper by a member or when a gratuity is included along with the payment of any invoice by the member. Carried Out will pay the Personal Shopper any gratuities that it receives on behalf of the Personal Shopper within 10 days of receipt.
Personal Shopper shall follow all government mandates and/or CDC guidelines (whichever are the strictest) for protecting others from the COVID-19 virus or other communicable diseases.
Personal Shopper shall protect the member by wearing a mask and social distancing when interacting in person with a member while the COVID-19 virus remains a threat to the community in which Personal Shopper is providing services (only operative as long as government mandated or CDC suggested).
Personal Shopper shall indemnify, defend, and forever save and hold harmless Carried Out from and against any and all damages, claims, losses, demands, costs, expenses (including attorney’s fees and costs), obligations, liens, liabilities, actions and causes of action, threatened or actual, which Carried Out may suffer or incur arising from Personal Shopper’s acts or the breach of any agreement, obligation, warranty or representation made herein except to the extent such claims arise from the negligence or willful misconduct of Carried Out. This paragraph shall survive any termination of this Agreement.
Article 5. Carried Out
Carried Out shall inform the Personal Shopper of potential fulfilment assignments by phone or text message as set forth in Attachment A.
Upon Personal Shopper’s completion of a fulfilment assignment, Carried Out shall pay the Personal Shopper as set forth in Attachment B.
Carried Out shall not interfere with Personal Shopper’s sole right to control the manner, method or means they use to perform services pursuant to this Agreement.
Article 6. Termination
Except for Articles 7, 8, 9 and 12 and specific paragraphs set forth in Article 4 that survive termination, this Agreement may be terminated (i) without cause by Personal Shopper (ii) or with or without cause by Carried Out by giving a 5 day written notice to the other party by email or US Mail.
Carried Out may only terminate this Agreement without cause if it is updating its Standard Agreement for Albuquerque and/or Lawrence with amended terms that are applicable to all Personal Shoppers in Albuquerque and/or Lawrence operating under such agreement. Carried Out shall sign a revised Standard Agreement with Personal Shopper if they agree to the terms set forth in the revised Standard Agreement.
Reasons why Carried Out may terminate this Agreement for cause are set out in Attachment C of this Agreement.
Upon termination, Carried Out shall not owe Personal Shopper any reimbursement for any services rendered after the date of termination.
Upon termination, the Personal Shopper shall return any Carried Out property in their possession including Carried Out’s Payment Card. Carried Out may withhold any final payment due to Personal Shopper until the Personal Shopper has complied with the provisions of this paragraph.
Article 7. Mandatory Alternative Dispute Resolution
In the event that a dispute arises between the parties regarding (i) this Agreement (ii) their relationship including but not limited to payments or debits applied to Personal Shopper’s Account (iii) termination of this Agreement for cause by Carried Out or (iv) all other aspects of Personal Shopper’s relationship with Carried Out, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans With Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Federal Credit Reporting Act (or its state or local equivalents), Telephone Consumer Protection Act (or its state or local equivalents), or Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state or local claims arising out of or relating to Personal Shopper’s relationship or the termination of that relationship with Carried Out, the parties shall resolve such dispute individually (class action mediations and arbitrations are prohibited) without litigation, utilizing the alternate dispute resolution procedures as set forth below.
Individual (non-class action) Mediation. The parties shall first attempt to mediate the dispute through the selection of a mutually agreeable mediator who shall conduct such mediation in confidence. The terms and procedure for mediation shall be arranged by the parties to the dispute.
Individual (non-class action) Arbitration. If good-faith mediation of a dispute proves impossible or if an agreed-upon mediation outcome cannot be obtained by the parties, the dispute may be submitted to arbitration in accordance with ground rules as agreed upon by the parties. Any party may commence arbitration of the dispute by sending a written request for arbitration to all other parties to the dispute. The request shall state the nature of the dispute to be resolved by arbitration, and, arbitration shall be commenced as soon as practical after such parties receive a copy of the written request.
Fees of Mediators and Arbitrators, Attorney Fees. The parties shall share equally the expenses of mediation and/or arbitration, including the fees of the mediator and/or arbitrator, and each party shall bear such party’s respective attorneys' fees and related costs incurred in connection with mediation and/or arbitration.
Venue. All mediations and arbitrations shall be held (i) at a site mutually agreed upon by the parties or (ii) electronically if requested by one of the parties.
Legally Binding on the Parties. All mediation agreements (signed) and arbitration decisions shall be final, binding and conclusive on the parties, and legal judgment may be entered based upon such agreement or decision in accordance with applicable law.
If a responding party refuses to participate in the arbitration process, the commencing party may, in lieu of using the arbitration process, file an individual (non-class action) court action to resolve the matter.
Article 8. Venue & Jurisdiction
For New Mexico Personal Shoppers, the venue for any legal judgement filed or legal action brought pursuant to this Agreement shall be the New Mexico District Court located in Albuquerque, NM which shall have jurisdiction over the parties and the matter. The parties waive any other venue/jurisdiction to which a party might be entitled by domicile or otherwise.
For Kansas Personal Shoppers, the venue for any legal judgement filed or legal action brought pursuant to this Agreement shall be the Kansas District Court located in Lawrence, KS which shall have jurisdiction over the parties and the matter. The parties waive any other venue/jurisdiction to which a party might be entitled by domicile or otherwise.
Article 9. Waiver
A party’s (i) waiver of or (ii) failure to enforce a provision of this Agreement does not constitute a waiver of their right to do so in the future with respect to that provision, any other provision or this Agreement as a whole.
Article 10. Attachments
Attachments A, B, and C attached to this Agreement are hereby incorporated into and made a part of this Agreement.
Article 11. Entire Agreement & Amendments
This Agreement represents the entire Agreement of the parties and it shall not be amended, modified or replaced except by a written instrument executed by the parties.
Article 12. Severability
If any provision of this Agreement is determined by a court or arbitrator to be invalid, unenforceable or otherwise ineffective, that provision shall be severed from the rest of this Agreement, and the remaining provisions shall remain in effect and enforceable.