This Business Service Agreement for Bacon’s Platform and Service (“Business Agreement”) sets out the legal terms of the relationship between Bacon Work, Inc. (“Bacon”) and the entity or person (“Business”) that registered to use the Bacon Platform and Service. Bacon provides an on-demand service (the “Service”) that helps Businesses offer short-term jobs to a network of geographically distributed independent contractors (each, a “Contractor”).
By using the Service, and the Bacon Platform in connection with the Service, you represent that (1) you have read, understand, and agree to be bound by this Business Agreement, and (2) you have the authority to enter into this Business Service Agreement on behalf of Business.
WHEREAS, Bacon provides a service that allows Businesses to connect with a network of independent contractors (each, a “Contractor”) and enter into arrangements with one or more such Contractors for the performance of services; and WHEREAS, Business desires to have access to Bacon’s Service on the terms set out in this Agreement.
THEREFORE, in consideration of the promises set out herein, the parties hereby agree as follows:
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1. DESCRIPTION OF SERVICES
A. Under this Agreement, Bacon provides a technology platform and related services through which Business and Contractors can enter into arrangements for the performance of services for the Business. The platform and related services are aimed at facilitating the formation of contracts between Businesses and Contractors. As used in this Agreement, the “Services” means all of the services provided by Bacon to Business as described generally in this Section.
B. A core element of Bacon’s technology platform is a software application that Bacon provides to its Business and Contractors. As used in this Agreement, the “Application” means the software used by Bacon (including the software and web-based application(s) that Bacon provides to Business) in connection with the Services.
C. Through the Application, Business may from time to time submit a request for services to Bacon (a “Service Request”), which shall include (i) a description of the services requested of one or more Contractors; (ii) special Contractor qualifications, if any; (iii) the deliverables to be provided, including a description of any expected work product and the criteria determining completion of the shift (the “Deliverables”); (iv) the date by which the services must be completed; and (v) the compensation to be paid to the Contractor for completion of the services (the “Contractor Payment”). Business agrees that all information provided in a Service Request will be accurate, current, and truthful. Bacon reserves the right to reject any Service Request for any reason, including but not limited to ambiguity, missing elements, or inconsistency with Bacon’s business interests or the integrity of the Application.
D. If Bacon does not reject the Business Request, it will pass along the Service Request to one or more Contractors for possible acceptance. Bacon can not guarantee acceptance of the Service Request. E. Through the Application, Business may reach an agreement with one or more Contractors to perform the services, including such other terms in addition to, and not inconsistent with, those specified in the Service Request. Business shall not make any change to the Deliverables or the Contractor Payment indicated in the Service Request, except by amendment of the Service Request through the Application. F. If Business and a Contractor reach agreement and Business retains the Contractor to perform the services, the Service Request as applied to that Contractor will become a “Service Engagement”. G. Bacon reserves the right to modify, discontinue, temporarily or permanently, the Application and/or the Service or any part thereof with or without notice.
2. COMPLETION OF DELIVERABLES
A. All Deliverables specified in a Service Engagement must be possible for completion in one day, unless the Contractor consents to a longer time period and Bacon is notified in advance. A Service Engagement may provide for separate Deliverables associated with more than one Contractor Payment.
B. Bacon shall be entitled to payment of all fees associated with a Service Engagement (or a portion thereof if the Service Engagement contemplates more than one Contractor Payment) immediately upon completion of the relevant Deliverables. A method for verifying completion will be provided in the Application. Business agrees to accept Deliverables when they have been completed to a reasonable standard within twenty four (24) hours after completion.
C. A Service Engagement may be canceled at any time by Business at any time prior to commencement of performance, but any cancellation without at least twelve (12) hours’ notice to the Contractor and Bacon will be subject to a cancellation fee.
D. Business shall defend, indemnify, and hold harmless Bacon from and against any and all liabilities and expenses arising out of or related to any claim by a Contractor that Business has improperly withheld acceptance of any Deliverable or payment thereon.
A. The Business and the Contractor determine the Contractor Payment for each shift listed in the Service Engagement. Bacon does not determine the amount of Contractor Payment. Upon completion of the Deliverables associated with a Service Engagement (or a portion thereof if the Service Engagement contemplates more than one Contractor Payment), Business shall pay to Bacon an amount equal to (i) the Contractor Payment, plus a service fee (the “Service Fee”) equal to forty percent (40%) of the Contractor Payment. The Service Fee may be reduced by 5% if the Business rates and verifies contractor hours no later than 24 hours from the shift end and refrains from canceling a shift with less than 12 hours notice, resulting in a 35% Service Fee. Bacon will pass along the Business Payment to the Contractor in accordance with the agreement between Bacon and the Contractor. The Service Fee is for creating, hosting, administering, maintaining, and providing access to the Application and for providing related services, and it is independent of the services provided by the Contractor.
B. Bacon shall defend, indemnify, and hold harmless Business from and against any and all liabilities and expenses arising out of or related to any claim by a Contractor that Bacon has improperly failed to pay any relevant Contractor Payment in accordance with the agreement between Bacon and the Contractor; provided that Customer has paid the Customer Payment and the Service Fee to Bacon in a timely manner accordance with this Agreement.
C. Bacon may bill Business at the end of each day for services provided by Contractors and accepted by Business in accordance with this Agreement. Payment for services will be processed through the Bacon platform using one of the following payment methods: Credit card payment, Digital Invoice (NET 15) to be paid using ACH or credit card. Additional fees may apply based on payment method. Different payment arrangements may be made when appropriate.
D. Bacon’s fees do not include any taxes, levies, duties, or similar governmental assessments of any kind, including but not limited to value-added, sales, use, or withholding taxes, accessible by any local, state, provincial, federal, or foreign jurisdiction. Business is responsible for payment of all taxes, duties, and government assessments associated with its purchases under this Agreement. If Bacon is legally obligated to pay or collect any taxes, duties, or other governmental assessment for which Business is responsible under this section, Business shall reimburse Bacon for such amounts promptly.
E. All amounts paid after the due date will be assessed a late payment charge of one and a half percent (1.5%) five days after the due date. An additional one and a half percent (1.5%) will be added for each month thereafter, and Customer shall be responsible for any costs of collection, including legal fees. If the late payment charge is deemed to be interest that exceeds the maximum permitted by law, the charge shall be reduced to the maximum permitted. Accounts that are delinquent will be subject to collections and may result in your account being suspended until it is made current.
A. Under this Agreement (and Bacon’s service agreement with Contractors), Bacon provides Services to both Customers and Contractors, including providing a technology platform, aimed at facilitating the formation of contracts between Customers and Contractors. A Service Request posted by Customer does not create an agreement. If Customer and a Contractor agree on terms and establish a Service Engagement, a contract is formed directly between Customer and the Contractor.
B. BACON’S SERVICES MAY BE USED ONLY FOR ENTERING INTO SERVICE ARRANGEMENTS UNDER INDEPENDENT CONTRACTOR RELATIONSHIPS. Customer is solely responsible for assuring that the services requested under a Service Request, and the performance of those services by each Contractor engaged by Customer, satisfy all of the requirements and conditions of an independent contractor relationship, and Customer assumes all liability for the proper classification of the Contractor based upon applicable legal guidelines. By posting a Service Request, entering into a Service Engagement, or allowing a Contractor to perform services in conjunction with the Services, Customer represents and warrants to Bacon that Customer has properly classified the Contractor as an independent contractor.
C. Bacon will not provide any Contractor with any training or any equipment or materials needed for fulfillment of any Service Engagement. Bacon will not deduct any amounts for withholding, unemployment, Social Security, or other taxes in connection with any Contractor Payment. Customer acknowledges and agrees that Bacon will not in any way supervise, direct, or control any Contractor’s work.
D. Customer shall not require any exclusive relationship between Customer and any Contractor.The Customer may at any time provide an offer of employment to a Contractor after he/she has worked at least one shift. There are no buy-out fees, penalties, or required hours associated with providing an offer of employment.
E. Customer is solely responsible for the workplace environment and for any liabilities arising out of the workplace conduct of Contractors or others.
F. Customer may request that Bacon provide a background check pertaining to a Contractor, but the parties acknowledge and agree that such a background check will not be performed by Bacon directly, and Bacon shall not have any liability for any omission or error in such a background check. The background check for workers includes a search of the national criminal history list, global terrorist watch list, sex offender list. Specific searches on lists outside of the basic check may be performed for an additional cost.
G. BACON DOES NOT MAKE ANY REPRESENTATION OR WARRANTY RELATING TO THE QUALIFICATIONS, PHYSICAL CAPABILITIES, MENTAL STABILITY, HISTORY, OR CRIMINAL RECORD OF ANY CONTRACTOR.
H. The parties agree that there exists no partnership or agency relationship between Bacon and any Contractor or Customer. Neither Contractor nor Customer has authority to enter into any written or oral agreement, whether express or implied, on behalf of Bacon.
I. Neither of the parties to this Agreement and none of the parties’ agents, employees, representatives, or independent contractors shall (i) be considered an agent, employee, or representative of the other party for any purpose whatsoever, (ii) have any authority to make any agreement or commitment for the other party or to incur liability or obligation in the other party’s name or on its behalf, or (iii) represent to third parties that either of them has any right to bind the other party. Nothing contained in this Agreement shall be construed or interpreted as creating an agency, partnership, or joint venture relationship between the parties.
Bacon Inc. has purchased policies to provide insurance against contractor-related events. The Customer may refer to further details about these policies in the document titled, “BACON SAFETY & LIABILITY OVERVIEW.” Customer shall maintain insurance of the kinds and amounts required by law. This should include policies specific to the tasks required by Customer including but not limited to driving vehicles or operating heavy machinery.
6. GENERAL PRACTICES
A.Customer agrees to use the Service to connect with Contractors for the completion of tasks appropriate to independent contractors. The Service may not be used to circumvent traditional employer obligations in the jurisdiction in which the Customer operates. Abuse of the Service will result in the Customer being the sole employer for the employment relationship should one be determined to exist by any regulatory bodies at either the state or federal level.
B. The Customer agrees to provide a safe and inclusive environment in which Contractors may perform services and agrees to treat them with respect and dignity.
A. In connection with the Services, each of the parties (as “Disclosing Party”) may disclose to or give the other party (as “Receiving Party”) access to certain trade secrets and other confidential information and know-how related to its business and its products or services in connection with the Services. Use of confidential information “in connection with the Services” means and is limited to such use of confidential information as may be necessary or appropriate solely for purposes of providing or using the services and performing a party’s obligations or exercising a party’s rights under this Agreement. As used in this Agreement, “Confidential Information” means and includes all information related to the Disclosing Party’s business, products, or services that is not publicly known; provided, however, that this Agreement does not prohibit the use or disclosure of information that (i) is required by law to be used or disclosed, but only to the extent that such use or disclosure is legally required, (ii) is already known to the Receiving Party, and not subject to any obligation of confidentiality, at the time the information is received from the Disclosing Party; (iii) becomes a part of the public knowledge other than by a breach of this Agreement or other wrongful act of the Receiving Party, or (iv) is rightfully received by the Receiving Party, without restriction, from a third party who is not obligated to keep the information confidential.
B. The Receiving Party shall not disclose, copy, or permit any person to copy any of the Disclosing Party’s confidential information for any reason, except for such limited disclosure to employees and professional advisors as may be appropriate in connection with the Services. The Receiving Party shall not use any of the Disclosing Party’s confidential information except in connection with the Services. Nothing in this Agreement, and no disclosure of confidential information by either party shall be deemed, either expressly or by implication, to convey any right or license of any kind to the Receiving Party.
C. Notwithstanding the foregoing, Customer acknowledges and agrees that some of the information that it provides in Service Requests will be sent to Contractors who will need the information to respond. By submitting a Service Request, Customer expressly consents to have details thereof sent to Contractors that provide like or similar services.
D. Upon request, Bacon will have Contractors sign and agree to any documents necessary for maintaining the privacy and confidentiality of the Customer’s operations.
8. NO WARRANTIES
A. THE APPLICATION AND THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, BACON DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Bacon does not warrant the accuracy, reliability, completeness, usefulness, or quality of any content included in the Services. Bacon does not warrant that the Services are secure, free from bugs, interruption, or errors, or that the Services will meet Customer’s requirements.
B. Bacon does not guarantee a match between a Service Request and a Contractor who is willing to fulfill the Service Request at the time and place requested.
C. Customer is solely responsible for the selection of a Contractor who is appropriate to fulfill any service need, and for the arrangement under which services are provided for Customer. Bacon is not liable for the action or inaction of any Contractor in connection with any Service Engagement and the performance of services (or failure to perform services) thereunder. Bacon does not guarantee or warrant the Contractor’s performance of any Service Engagement or the outcome or quality of any Deliverables.
D. Bacon shall have no liability to Customer or any third party for any modification, suspension, or discontinuance of the Application or the Services or any part thereof. 9. LIMITATION OF LIABILITY AND DAMAGES A. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF BACON AND CUSTOMER’S EXCLUSIVE REMEDY FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY AND/OR DUE FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. B. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BACON SHALL NOT BE LIABLE FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (ii) DAMAGES RELATING TO TELECOMMUNICATIONS FAILURES, INTERNET AND ELECTRONIC COMMUNICATIONS FAILURES, DELAYS OR LIMITATIONS, LOSS, CORRUPTION, SECURITY, OR THEFT OF DATA, VIRUSES, SPYWARE; OR (iii) LOSS OF BUSINESS REVENUE, PROFITS OR INVESTMENT, ARISING OUT OF OR RELATED IN ANY WAY TO THE SERVICES, WHETHER BASED IN TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BACON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer shall defend, indemnify, and hold harmless Bacon and its parents, affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses, including attorneys’ fees, arising from or related to (i) a breach by Customer of any representation, warranty, covenant, or obligation in this Agreement; (ii) any intentional or negligent act or omission committed by Customer in connection with the performance of this Agreement or related to any Contractor; (iii) Customer’s violation of any law; (iv) any physical injury or death occurring at Customer’s place of business; (v) any claim that a Contractor was misclassified as an independent contractor; (vi) any claim that Bacon is or was an employer or joint-employer of a Contractor; (vii) any claims under employment laws, including laws related to employment termination, employment discrimination, harassment, workplace safety, and any claims for overtime pay, sick leave, holiday or vacation pay, or any other employee benefits; and (viii) any claim related to Contractor’s driving and/or delivery services. Bacon makes no representations or warranties regarding Contractors’ ability to legally drive in the United States. Bacon makes no representations or warranties regarding Contractors’ motor vehicle record.
11. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY
Customer agrees that Bacon may send notices and other communications to Customer by email and/or may make communications available to Customer by posting them on the Application or on Bacon’s website. Customer consents to receive such communications electronically. Customer shall notify Bacon promptly of any change in Customer’s email address or other registration data.
12. MODIFICATION AND AMENDMENT
Except as provided in the Arbitration Agreement, Bacon may change this Agreement from time to time, effective upon posting of the modified Agreement on its website or through the Application. Bacon may also notify Customer of the change by email or other electronic communication. Customer is responsible to review the Agreement periodically for changes. Except as provided in the Arbitration Agreement, Bacon has the right to change, delete, discontinue, or impose conditions on any features or aspect of the Services, including but not limited to pricing, technical support options, and other product-related policies. Customer’s continued use of the Services after Bacon’s publication of any changes shall constitute Customer’s acceptance of the changes.
Either party may terminate this Agreement without cause at any time, effective upon notice to the other party; provided, however, that termination of this Agreement will not relieve either party of its obligations related to any Service Engagement that has been entered into prior to the time of cancellation. Sections 3 (Fees), 6 (Information and Feedback), 8 (Confidentiality), 9 (No Warranties), 10 (Limitation of Liability and Damages), 11 (Indemnification) 12 (Consent to Conduct Business Electronically), and 15 (Miscellaneous, including without limitation, the Arbitration Agreement in 15(B)) shall survive any termination of this Agreement. Bacon shall have the right to terminate Customer’s password, account (or any part thereof), or use of the Service, at any time in its sole discretion, with or without cause and with or without prior notice. Bacon shall not be liable to Customer or any third party for any termination of Customer’s access to the Service.
A. Except for the Arbitration Agreement in Section 15(B) below, which is governed by the Federal Arbitration Act, this Agreement shall be governed by and construed in accordance with Utah law, without regard to its rules regarding conflicts of law. Each of the parties consents to the jurisdiction of the courts located in the state of Utah with respect to any non-arbitrable matters arising out of or relating to this Agreement.
B. This Agreement, along with the Bacon Marketplace Standards of Conduct and Bacon Work Inc. Terms and Conditions, constitutes the entire agreement between the parties pertaining to its subject matter, and it supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. Except for changes by Bacon as provided herein, no modification or amendment of this Agreement shall be binding unless executed in writing by both parties. No waiver shall be effective unless it is in writing and signed by the party against whom enforcement is sought.
C. This Agreement may not be assigned by either party without the prior written consent of the other.
D. If any of the provisions of this Agreement are held by a court or other tribunal having jurisdiction to be unenforceable, the parties intend that the provision shall be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect.