Bacon, Inc. (“Bacon”) provides a service that allows independent contractors (“Workers”) to connect with Bacon’s network of companies and other work providers (each, a “Business”) and enter into arrangements with one or more such Businesses for the performance of services.
1. ACCEPTANCE OF TERMS This Agreement constitutes a legal agreement between Bacon and the person named as “Worker” in the registration process (“you” or “yours”). By accepting the terms upon account creation, you (a) agree that you have read and understood the terms of this Customer Agreement, the Bacon Marketplace Standards of Conduct, and Bacon Work Inc. Terms and Conditions; (b) agree to be bound by those agreements; (c) warrant that you are legally competent to enter into these agreements; and (d) agree that clicking “I accept” is your electronic signature. An electronic signature is as legally binding as an ink signature.
2. DESCRIPTION OF SERVICES
A. Under this Agreement, Bacon provides a technology platform and related services through which Workers and Businesses can enter into arrangements for the performance of services for Businesses. The platform and related services are aimed at facilitating the formation of contracts between Workers and Businesses. As used in this Agreement, the “Services” means all of the services provided by Bacon to you as described generally in this Section.
B. A core element of Bacon’s technology platform is a software application that Bacon provides to Workers and Businesses. As used in this Agreement, the “Application” means the software used by Bacon (including the software application that Bacon provides to you) in connection with the Services. Use of the Application is governed by this Agreement and the Terms and Conditions.
C. Through the Application, a Business may from time to time submit a request for services (a “Service Request”), which will include (i) a description of the services to be provided by a Worker; (ii) special Worker qualifications, if any, required to perform the services; (iii) the deliverables to be provided, including the criteria determining completion of the job (the “Deliverables”); (iv) the date by which the services must be completed; and (v) the compensation to be paid to Worker for completion of the services (the “Worker Payment”). Bacon may pass along the Service Request to one or more Workers for possible acceptance.
D. Through the Application, you may reach an agreement with the Business to perform the services, including such other terms in addition to, and not inconsistent with, those specified in the Service Request. You shall not agree to any change to the Deliverables or the Worker Payment indicated in the Service Request, except by amendment of the Service Request by the Business through the Application.
E. If you and the Business reach agreement and the Business retains you to perform the services, the Service Request will become a “Service Engagement”.
F. Bacon reserves the right to modify, discontinue, temporarily or permanently, the Application and/or the Service Request or Service Engagement or any part thereof with or without notice.
3. DELIVERABLES AND WORKER PAYMENT
A. Normally, all Deliverables specified in a Service Engagement will be possible to complete in one day. A Service Engagement may provide for separate Deliverables associated with more than one Worker Payment.
B. You agree to use your reasonable best efforts to complete each Service Engagement in accordance with the requirements and specifications of the Business. By entering into a Service Engagement, you are entering into a binding agreement to provide services to the Business for the specified Worker Payment. Do not accept a Service Request unless you are confident that you (i) understand and meet all shift requirements of the Service Request; (ii) have the ability to get to the job site; (iii) have the qualifications and ability to perform the requested services and complete all of the Deliverables; and (iv) will be able to complete the Deliverables within the requested time.
C. Bacon will pay the Worker Payment to you on behalf of the Business, according to the payout timing you select, after the Business accepts the relevant Deliverables and Bacon receives the payment from the Business. The Worker Payment will be Bacon’s only liability to you for services that you render under a Service Engagement. Bacon will not cover or reimburse any expenses associated with your performance of a Service Engagement. If there is a dispute between you and the Business regarding your completion of the Deliverables, contact support@baconinc.com. Bacon will exercise its reasonable best efforts to collect payment from the Business promptly after you have completed the Deliverables, but Bacon does not guarantee such payments. You agree that Bacon will not be liable for any delay in payment to you based on Business’s refusal to accept the Deliverables or failure to make timely payment to Bacon.
D. You agree to fulfill all Service Engagements according to the guidelines in the Bacon Marketplace Standards of conduct.
E. You agree to conduct yourself in accordance with the expectations and policies as described in the Bacon Marketplace Standards of Conduct. Bacon will update these expectations periodically. You are expected to be familiar with your obligations before completing each Service Engagement.
4. BACKGROUND CHECK
A. As part of your registration with Bacon, you agree to execute a consent for a background check. Your right to use the Application and the Services is conditioned upon a satisfactory background check, and you agree to any additional ongoing background checks that may be required by Bacon or a Business as a condition of your continued use of the Services.
B. You understand and authorize Bacon to order background reports that include information about or concerning you, including but not limited to: Law enforcement records; federal, state and local agencies; federal, state and local courts; motor vehicle records agencies; substance abuse testing records; if applicable, worker’s compensation records, all other private and public sector repositories of information. The information disclosed from said background reports may be disclosed to Bacon and its agents.
5. RELATIONSHIPS
A. Under this Agreement (and Bacon’s service agreement with Businesses), Bacon provides Services to both Workers and Businesses, including providing a technology platform, aimed at facilitating the formation of contracts between Workers and Businesses. If you and a Business agree on terms and establish a Service Engagement, a contract is formed directly between you and the Business.
B. BACON’S SERVICES MAY BE USED ONLY FOR ENTERING INTO SERVICE ENGAGEMENTS UNDER INDEPENDENT CONTRACTOR RELATIONSHIPS. No Service Engagement is intended to or does create an “employment” relationship between you and any Business or Bacon. You will not be eligible for any employee benefits from Business or Bacon. You will not be considered an employee of the Business or Bacon for purposes of any laws related to employment termination, employment discrimination, harassment, workplace safety, workers’ compensation, unemployment benefits, minimum wage, overtime, or any claims for sick leave, holiday or vacation pay, or any other employee benefits. Neither Bacon nor the Business will deduct any amounts for withholding, unemployment, Social Security, or other taxes in connection with any Worker Payment.
C. Bacon will not provide you with any training or any equipment or materials needed for fulfillment of any Service Engagement, except to make available to you any training materials provided by the Business. Bacon will not in any way supervise, direct, or control any of your work for a Business.
D. You acknowledge and agree that Bacon has no control over the workplace, and Bacon will have no liability arising out of or related to the workplace environment in which you perform services under a Service Engagement or the workplace conduct of employees or agents of the Business or others. You are free to and encouraged to perform services with other businesses to provide the same or similar services set forth herein.
E. You agree that Bacon will have no liability to you, in connection with any Service Engagement, for (i) any physical injury or death occurring at any location where you perform services under the Service Engagement, or (ii) any act or omission by any person that gives rise to any claim under employment laws, including laws related to employment termination, employment discrimination, harassment, and workplace safety, and any similar act or omission notwithstanding the non-applicability of such laws to you as an independent contractor; or (iii) any claim for overtime pay, sick leave, holiday or vacation pay, or any other employee benefits.
F. BACON DOES NOT MAKE ANY REPRESENTATION OR WARRANTY RELATING TO THE ACTIONS, HISTORY, INTEGRITY, OR SUITABILITY OF ANY BUSINESS.
G. The parties agree that there exists no partnership or agency relationship between Bacon and any Business or Worker. No Business or Worker has authority to enter into any written or oral agreement, whether express or implied, on behalf of Bacon.
H. 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 so 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.
6. INDEPENDENT CONTRACTOR
A. You will be treated in all respects as an independent contractor in connection with your performance of a Service Engagement. You are responsible for providing your own tools and equipment unless the Business otherwise agrees.You are responsible for all taxes related to Worker Payments, including quarterly tax payments to appropriate government authorities when required, and you agree to make all required tax filings and tax payments in a timely manner. If any services to be performed by you under a Service Engagement require any registration, license, or other authorization, you are responsible to obtain and maintain the necessary registration, license, or other authorization.
B. When required by law, Bacon will report payments to you in connection with Service Engagements by filing form 1099-MISC with the Internal Revenue Service.
C. Your response to a Service Request and your performance of a Service Engagement constitute a representation and warranty to Bacon that you are authorized to work as an independent contractor in the United States and that your performance of the Service Engagement will not violate any law or conflict with any obligation that you have to any person.
7. HEALTH AND SAFETY
A. Bacon has no control over the environment in which Workers are asked to perform Service Engagements. Workers are responsible to take reasonable care to protect their own health and safety and the health and safety of others while performing a service engagement. If you feel an environment or task is unsafe, you may refuse to perform and report that to the Business and Bacon.
B. Worker understands that they have the right to refuse work if they have a reasonable belief that performing the assigned tasks would present an immediate danger to their health or safety. In such cases, the Worker must immediately report the situation to the Business and Bacon.
C. In order to protect the Worker’s own health and safety during the course of their work, Bacon provides coverage in one of two ways, either under an occupational and accident plan or a worker’s compensation plan, depending on local protection requirements.
D. All parties to the marketplace agree to treat one another in accordance with Bacon’s statement on Discrimination and Harassment.
8. LIMITATION OF LIABILITY AND DAMAGES
A. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF BACON AND YOUR EXCLUSIVE REMEDY FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAYABLE TO YOU 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 INCOME, 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.
9. INDEMNIFICATION
You 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 you of any representation, warranty, covenant, or obligation in this Agreement; (ii) any intentional or negligent act or omission committed by you in connection with the performance (or failure to perform) any Service Engagement; and (iii) your violation of any law.
10. TERMINATION
If either party commits a material breach of this Agreement, the non-breaching party may terminate this Agreement without notice 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 (Deliverables and Worker Payment), 8 (Limitation of Liability and Damages), 9 (Indemnification), and 13 (Miscellaneous, including without limitation, the Arbitration Provision in 13(B)) shall survive any termination of this Agreement. Bacon shall not be liable to you or any third party for any termination of your access to the Service.
11. CONFIDENTIALITY
A. The Worker acknowledges and agrees that during the course of executing a Service Engagement, they may have access to and become aware of confidential and proprietary information of Bacon and/or Businesses. Such confidential and proprietary information includes, but is not limited to, trade secrets, client lists, business plans, financial data, pricing structures, marketing strategies, software programs, and any other information designated as confidential by Bacon or Businesses. The Worker agrees to maintain the strictest confidentiality with respect to all confidential and proprietary information obtained during their assignment(s) and not to disclose, directly or indirectly, any such information to any third party without the prior written consent of Bacon or Businesses. Furthermore, the Worker agrees to use the confidential and proprietary information solely for the purpose of performing their assigned duties and responsibilities and not for their personal gain or any purpose that could be detrimental to Bacon or Businesses.
B. Worker is hereby provided notice that under the 2016 Defend Trade Secrets Act (DTSA): (a) no individual will be held criminally or civilly liable under federal or state trade secret law for the disclosure of a trade secret (as defined under the DTSA) that: (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (b) an individual who pursues a lawsuit for retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.
12. PHOTO & VIDEO RELEASE
The Worker authorizes Bacon to publish any photographs and videos taken of me while working in a Service Engagement, for use in their printed publication, social media, and website. I acknowledge that I will receive no financial compensation for the use of my photograph in publications, social media, and websites produced by Bacon. I also agree that my participation in any publication, social media, and website produced by Bacon confers upon me no right of ownership whatsoever. I release Bacon and the Business that use this service and employees from liability for my claims by be or any third party in connection with my participation.
13. MISCELLANEOUS
A. Except for the Arbitration Provision below, which is governed by the law set forth therein, this Agreement shall be governed by and construed in accordance with law of the state in which you reside, without regard to its rules regarding conflicts of law. Each of the parties consents to the jurisdiction of the courts located in that state with respect to all matters relating to this Agreement.
B. Bacon and Worker mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of a court or jury trial. This Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and applies to any and all claims arising out of or relating to this Agreement, Worker’s classification as an independent contractor, Worker’s provision of services, the payments received by Worker for providing its services, the termination of this Agreement, and all other aspects of Worker’s relationship with Bacon, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination, retaliation, trade secrets, unfair competition, privacy, compensation, classification, minimum wage, expense reimbursement, overtime, breaks and rest period claims and claims arising under or related to the Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Worker’s relationship or the termination of that relationship with Bacon. If it is determined that the Federal Arbitration Act does not apply to any claims covered by this Arbitration Provision, the parties agree that the law of the jurisdiction where the arbitration takes place will apply.
C. Limitations on How this Arbitration Provision Applies. The following claims are not covered under this Arbitration Provision: (i) workers’ compensation benefits, state disability insurance benefits or unemployment insurance benefits; however, this Arbitration Provision applies to discrimination or retaliation claims based upon seeking such benefits; (ii) disputes that may not be subject to pre-dispute arbitration agreement under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (at your election); and (iii) representative actions for civil penalties filed under the California Private Attorneys General Act (“PAGA”), which may only be maintained in a court of competent jurisdiction (“PAGA Exclusion”). However, any claim by Worker as an individual under PAGA to recover unpaid wages must be arbitrated and is covered by this Arbitration Provision.
D. Class Action Waiver. This Arbitration Provision affects Worker’s ability to participate in class, collective, or representative actions. The parties mutually agree that by entering into this Arbitration Provision, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
Worker agrees and acknowledges that entering into this Arbitration Provision does not change Worker’s status as an independent contractor in fact and in law, that Worker is not an employee of Bacon, any Business, or any of their affiliates or clients, and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), which as of the date of this agreement may be found at www.adr.org, except as follows:
(a) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute. The arbitrator shall have authority to decide gateway issues, including arbitrability.
(b) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county in which Worker performed Worker contractual duties under this Agreement..
(c) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that Bacon shall pay all of the Arbitrator’s fees and costs.
(d) The Arbitrator may issue orders (including subpoenas to third parties in accordance with any applicable federal or state law) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(e) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party in his or her individual capacity is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(f) Either party may file motions to dismiss and/or motions for summary judgment and the Arbitrator will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(g) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction.
(h) Either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph
(i) may be rendered ineffectual.
Nothing in this Arbitration Provision prevents Worker from making a report to, or filing a claim or charge with, a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs, or law enforcement agencies. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Bacon will not retaliate against Worker for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. This Arbitration Provision survives after the termination of the Agreement and/or after Worker ceases any assignment and/or relationship with Bacon.. This Arbitration Provision will also continue to apply notwithstanding any change in Worker’s responsibilities, position, or title, or if Worker transfers companies. Notwithstanding any contrary language in the Agreement or in any Bacon policy or other agreement, this Arbitration Provision may not be modified or terminated absent a writing signed (electronically or otherwise) by both Worker and an authorized representative of Bacon.
E. This Agreement, along with the Bacon Work Inc. Terms and Conditions and the Bacon Marketplace Standards of Conduct 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.
F. This Agreement may not be assigned by either party without the prior written consent of the other.
G. 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.