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Effective: January 1, 2019

This Agreement made by and between Eemerg, INC in Saint Louis, Mo 63138, hereinafter called “Eemerg” and you, an Independent Service Provider (hereinafter called “ISP”). The parties to this Agreement agree as follows:

Dispatch

Eemerg shall contact and dispatch ISP to perform service calls for customers of Eemerg (“Customers”) with vehicles who are in need of certain services of ISP (the “Services”). Upon receipt of a dispatch call from Eemerg, ISP shall furnish Eemerg with an estimated cost of service request and time of arrival (“ETA”) to the location of the Customer in need of Services. ISP agrees that it shall use its best efforts to arrive at the Customer location within the given ETA. Once ISP has agreed to the cost of of services and the price has been accepted the price can not be altered or changed. If there are any changes to the ETA, the ISP will update Eemerg with the change as soon as possible.

Provision of Services

ISP shall be solely responsible for the provision of Services to Customers. ISP shall provide the Services in a safe and professional manner, consistent with industry standards and agrees to comply with all applicable laws and regulations. ISP shall be solely responsible for determining the proper equipment and methods for providing the Services. ISP shall be solely responsible for any personal injury or property damage resulting from ISP’s provision of the Services.

Reimbursement Policy

Eemerg will issue payment to ISP in accordance with the weekly earnings for Services provided to Customers that have been preauthorized by Eemerg. Subject to the other terms of this Agreement, Eemerg will pay ISP within seven (7) business days of when ISP has confirmed that it has provided the Services to a Customer. Eemerg reserves the right to deduct from any payment to ISP, any and all monies ISP owes Eemerg or a Customer. Eemerg shall not be obligated to pay ISP for any Services provided to a Customer and/or that were not preauthorized by Eemerg.

Damage

In the event that a Customer alleges that ISP damaged a Customer’s vehicle in the course of providing Services, or a Customer otherwise alleges any damages as the result of ISP’s actions or omissions, in addition to any of its other remedies, Eemerg may withhold any monies due ISP for Services under this Agreement pending resolution of the dispute with the Customer. If ISP fails to reach a resolution with such Customer and Eemerg in its reasonable discretion believes that the Customer’s complaint is valid, Eemerg may reimburse Customer and deduct such reimbursement from any monies due ISP

Non-Exclusive

It is expressly understood that this Agreement is not exclusive in any respect. Eemerg maintains the right to contract with other service providers and ISP may contract with other motoring plan providers. It is further understood that this Agreement does not guarantee ISP any amount of business, revenue or profit, and Eemerg is not obligated to refer any amount of business to ISP.

Indemnity

ISP agrees to defend, indemnify and hold harmless Eemerg, its affiliated entities and each of their respective officers, directors, shareholders, employees, agents, successors and assigns from and against any and all liabilities, losses, damages and costs (including attorneys’ fees) arising from any third party claim related to (a) ISP’s performance of Services; or (b) any injury to any person or damage to property resulting in any way from any act or omission on the part of ISP or its agents or contractors. This paragraph shall survive the termination or expiration of this Agreement.

Insurance

At all times during the term of this Agreement, ISP will maintain in effect and at its own expense:

  • (a) Worker’s Compensation and Occupational Diseases insurance as required by any applicable law;
  • (b) Comprehensive General and Automobile Liability insurance, including Contractual Liability insurance specifically insuring ISP against the liabilities assumed under Indemnity Section with minimum limits of $100,000 per each person and $300,000 per each occurrence for bodily injury and $100,000 per each occurrence for property damage or a minimum combined single limit for bodily injury and property damage of $300,000 per occurrence;
  • (c) Garage Keepers’ Legal Liability or Garage Keeper’s Liability insurance (including, but limited to “On-Hook” Liability insurance) with a minimum limit of $50,000; and
  • d) Any additional coverage or limits as may be required by applicable law. Within thirty days of request by Eemerg, ISP will provide Eemerg with a Certificate of Insurance evidencing ISP’s compliance with these insurance requirements. Eemergs’ failure to request evidence of the above insurance shall not be construed as a waiver of ISP’s obligation to maintain the insurance coverage specified herein. ISP agrees to keep Eemerg informed of any changes to its insurance. ISP shall ensure that Eemerg is named as an additional insured on all policies listed above other than in Insurance Section (a). The foregoing insurance coverage will be primary and non-contributing with respect to any other insurance or self-insurance which may be maintained by Eemerg.  ISP authorizes Eemerg to provide any and all information it may have regarding ISP’s insurance coverage, including but not limited to copies of insurance certificates and declarations pages, to a Customer, a representative of Customer, or any governmental agency. ISP agrees that any such information shall not be considered proprietary or confidential.

The purchase and maintenance of any insurance by ISP is independent of the ISP’s obligations under Indemnity Section . Any deductibles or liability beyond the policy limits are the responsibility of ISP. ISP will not delay or refuse to satisfy any claim because of a deductible or policy limit. In the event that ISP and/or ISP’s insurer do not fully pay for any damage claim for which ISP is responsible, Eemerg may reimburse Customer and offset such amount from any amounts due ISP.

Background Checks 

At all times during the term of this Agreement, ISP agrees that it will have performed local and national criminal background checks on all ISP employees or agents providing any Services to Customers and shall not permit any ISP employee or agent to provide any Services to Customers if such background check revealed a criminal conviction relevant to the position, such as driving under the influence of alcohol or a controlled substance or involving damage or theft of or to any person or property. ISP shall keep such background check information current and updated by performing background checks at reasonable intervals. Within thirty days of request by Eemerg, ISP will provide Eemerg with evidence that ISP performed such background check. Eemergs’ failure to request such evidence shall not be construed as a waiver of ISP’s obligation to have performed the background check. Such background checks are available from third party providers, including via backgroundchecks.com. Eemerg is not affiliated with such third party providers but provides this information as a courtesy to ISP.

Termination

This Agreement may be terminated at will and without cause at any time by either party by providing written notice to the other.

Confidentiality

At all times during the term of this Agreement and thereafter, each party agrees to hold the other party’s and its affiliates’ Confidential Information in strict confidence and agrees not to disclose to any third parties or use any such Confidential Information other than in furtherance of the parties’ relationship. “Confidential Information,” as used in this Agreement, shall mean any and all non-public information, whether business or technical in nature, that the other party designates as being confidential, or which under the circumstances of disclosure ought to be treated as confidential. With regard to Eemerg, its Confidential Information includes, without limitation, its product concepts or other information regarding Eemergs’ plans or services, all Customer information, all pricing information related to the Services, information regarding its software, processes, technology, designs, plans, drawings, marketing, finances and the terms of this Agreement.  Confidential Information does not include information that: (i) was in the public domain at the time it was communicated; (ii) entered the public domain through no fault of the receiving party; (iii) is generally known in the trade or industry and was not gained by breach of this Agreement; or (iv) was developed by the receiving party independently of and without reference to any information communicated by the disclosing party.  The restrictions on disclosure imposed by this Section shall not apply to information that is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving party, provided that in each such case the receiving party provides the disclosing party with prompt written notice of such order or requirement and reasonably assists the disclosing party in obtaining a protective order or other appropriate relief.

Limitation of Liability

EEMERG SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ISP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL EEMERGS’ AGGREGATE LIABILITY UNDER OR RELATED TO THIS AGREEMENT FOR ANY CAUSE OF ACTION EXCEED THE AMOUNTS PAID TO ISP BY EEMERG DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM. The parties acknowledge and agree that the limitations of liability set forth herein form an essential basis of the agreement between the parties and that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose).

Independent Contractor

In the performance of all Services under this Agreement, ISP shall be an independent contractor and not an employee of Eemerg. As an independent contractor, ISP shall: (a) have the right to direct and control the manner and means in which ISP provides Services; (b) not be entitled to employee benefits of any kind; and (c) be solely responsible for self-employment, social security, and federal and state income taxes applicable to compensation paid to ISP by Eemerg under this Agreement.

Entire Agreement

This Agreement comprises the entire agreement between the parties with respect to the subject matter hereof and replaces any prior understandings, written or oral.

Changes to this Agreement

Eemerg may change this Agreement and will post the modified agreement (which shall then become the Agreement) with the new effective date listed above. Eemerg will also give ISP prior notice that the Agreement has been changed using the contact information provided by ISP. Therefore, ISP agrees to keep its account information up-to-date. Eemerg also encourages ISP to check the terms of this Agreement from time to time to see if they have been updated. If ISP does not agree to the modified Agreement, ISP’s sole recourse is to stop providing the Services to Customers. ISP’s continued provision of Services to Customers after the date the modified Agreement is posted will constitute ISP’s acceptance of the modified Agreement. Any changes to this Agreement shall be in writing and no terms or provisions of any ISP purchase order or other ISP document shall have any effect on the rights, duties or obligations of the parties hereunder.

Governing Law

The validity, interpretation, and construction of this Agreement will be governed by the laws of the State of Missouri without regard to its conflict of laws provisions

Dispute Resolution

Eemerg and ISP agree to resolve any disputes in accordance with this section. If ISP and Eemerg have any dispute, they agree first to attempt to resolve any such dispute amicably. Except as otherwise provided herein, ISP and Eemerg agree to resolve any disputes that they cannot resolve as provided above through binding and final arbitration instead of through court proceedings as follows.

All controversies, claims, counterclaims, or other disputes arising between ISP and Eemerg relating to the Services or this Agreement (each a “Claim”) shall be submitted for binding arbitration in Saint Louis, Missouri, in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it will not be disclosed beyond the arbitration proceedings, except as may lawfully be required or required by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.

If ISP demonstrates that the costs of arbitration will be prohibitive as compared to the costs of litigation, Eemerg will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.

This agreement to arbitrate does not preclude either party from seeking action by federal, state, or local government agencies. ISP and Eemerg also have the right to bring qualifying claims in small claims court. In addition, ISP and Eemerg retain the right to apply to any court of competent jurisdiction for provisional or equitable relief and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.

Neither ISP nor Eemerg may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only ISP’s and/or Eemergs’ individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.

Assignment

ISP may not assign or subcontract any rights or obligations under this Agreement without Eemergs’ prior written consent.

Severability/Waiver

If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose (if possible) and, in any event, the remainder of the Agreement shall be unaffected. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

Authorization to Co-Market

At no additional cost to ISP, ISP hereby grants Eemerg the non-exclusive right to take any and all commercially reasonable, good faith actions on behalf of ISP for the purpose of marketing, advertising and promoting the parties’ mutual business interests and increasing the parties’ revenue-generating opportunities (collectively “Co-Marketing”).  In connection with the foregoing, ISP hereby grants to Eemerg the non-exclusive, revocable, royalty-free and worldwide license and right to use ISP’s contact information, logo(s), trademark(s) and other publicly available information in connection with such Co-Marketing activities in any and all mediums and platforms.  ISP hereby acknowledges and agrees that Eemerg will use its reasonable discretion as to which Co-Marketing activities may or may not be suitable for ISP. Upon ISP’s request, Eemerg will promptly discontinue any Co-Marketing activities with ISP rendered hereunder.