SERVICES AGREEMENT AND RELEASE
Please read this document carefully. It describes the terms and conditions of your relationship with BBM America, d/b/a CX Orlando and d/b/a Guest Perceptions.
This Services Agreement and Release (“Agreement”) is entered into this day between BBM America, d/b/a CX Orlando and d/b/a Guest Perceptions (“Company”) and you, an independent mystery shopper (“IMS”).
WHEREAS, Company, from time to time, will engage independent mystery shoppers to conduct mystery shopping evaluations of a client location on behalf of a client;
WHEREAS, IMS is a self-employed professional mystery shopper who seeks to be informed about opportunities to conduct mystery shopping evaluations for clients of the Company; and
WHEREAS, the purpose of this Agreement is to set forth the general terms and conditions that will govern any opportunities to conduct mystery shopping evaluations that Company offers to IMS hereunder.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, Company and IMS hereby agree as follows:
- The specific terms and conditions of any opportunity that Company offers to IMS hereunder shall be set forth in the description of such opportunity. If there is any conflict between the terms or conditions of this Agreement and those contained in a description of an opportunity, the opportunity description shall govern.
- All opportunities to conduct mystery shopping evaluations will be offered on an opportunity-by-opportunity basis. Company has no obligation to offer IMS any minimum number of opportunities, and IMS has no obligation to accept any minimum number of opportunities that Company offers
IMS and Company acknowledge that this Agreement merely grants IMS access to opportunities to conduct independent mystery shopping evaluations of client sites; but it does not create any contractual obligations for either party until such time as Company offers such an opportunity to IMS, and IMS accepts and agrees to conduct the evaluation. Once IMS completes and receives payment for a mystery shopping evaluation, neither party shall have any ongoing contractual duties to the other, until such time as the Company offers, and IMS accepts, another such opportunity.
The parties’ relationship shall at all times be that of independent contractors, and neither party shall have the right to bind the other, nor to act on behalf of or as an agent or a representative of the other. Each party will cooperate with the other in defending against any challenge to the parties’ independent-contractor relationship.
- IMS represents and warrants that (i) IMS is a self-employed professional mystery shopper, (ii) IMS does not rely exclusively on Company for obtaining access to opportunities, but also conducts mystery shopping evaluations for clients obtained through other sources, (iii) IMS represents itself to the public as an independent professional mystery shopper, and (iv) IMS maintains an office for the IMS business that is separate and independent from the Company.
- IMS acknowledges that the fees payable for conducting any mystery shopping evaluation offered hereunder are payable by the client for which the evaluation is conducted, albeit through Company, and that if the client does not pay for such evaluation, the Company shall have no liability for such unpaid amount.
IMS acknowledges and agrees that IMS’s agreed upon fee for conducting a mystery shopping evaluation obtained hereunder shall constitute IMS’s entire compensation for completing the evaluation and that IMS shall have no right to, and hereby waives any right to seek or accept, any benefits under any benefit programs, such as, but not limited to, paid time off, health benefits or retirement benefits, that Company or a client maintains for its respective employees.
The initial term of this engagement shall be the 12-month period commencing on the date hereof. This Agreement shall be extended for additional one-year terms, unless either party advises the other in writing at least thirty (30) days prior to the end of a term that it does not intend to extend the Agreement.
This Agreement is nonexclusive. IMS always has the unqualified right to accept or decline any opportunity offered hereunder and to conduct mystery shopping evaluations obtained independently of this Agreement. IMS also acknowledges that Company has contracts with others who are engaged in a business similar to IMS’s and that Company will be offering opportunities to those businesses as well.
IMS shall retain sole control over the means and methods used in performing an opportunity obtained hereunder and over the selection, hiring and supervision of its personnel. Any mystery shopping evaluation that IMS conducts pursuant to this Agreement shall be conducted by IMS as an independent mystery shopper, on IMS’s own account, and not as an agent or subcontractor of Company. IMS is solely responsible for providing any and all tools, supplies, equipment and transportation, and for all expenses that IMS incurs in connection with the operation of its business and in conducting mystery shopping evaluations. If a client agrees to reimburse IMS for any costs or expenses, Company may assist the client in disbursing such sums to IMS, but under no circumstances will Company, itself, reimburse IMS for any cost or expense. All operating costs that IMS incurs, such as fuel, repairs, motor vehicle insurance, and all costs associated with IMS personnel, are IMS’s sole responsibility. IMS also is responsible for obtaining any licenses or certificates that are required by law to provide its services.
- IMS represents and warrants that IMS will not accept any opportunity offered hereunder to conduct a mystery shopping evaluation at a retail location if IMS or any relative of IMS is employed by or is other otherwise affiliated with the business that owns or operates such retail location.
- IMS acknowledges that while providing services in connection with an opportunity, IMS will operate as an independent contractor (and not an employee) and shall be solely responsible for any and all federal, state and local income, unemployment, and payroll taxes, for IMS and any personnel who assist IMS, and solely responsible for all filing and payment obligations associated with such taxes, including but not limited to federal and state income tax, social security and self-employment taxes, and that IMS will not be eligible for unemployment insurance benefits, unless unemployment compensation coverage is provided by IMS or some other entity. This paragraph shall survive the termination of this Agreement.
- IMS acknowledges that IMS is solely responsible for complying with any applicable workers’-compensation laws at IMS’s own expense, and agrees to hold harmless Company and its officers and owners against any liability attributable to any injury incurred by IMS or any IMS personnel while performing services in connection with an opportunity. This paragraph shall survive the termination of this Agreement.
- IMS accepts full responsibility for conducting a mystery shopping evaluation that IMS accepts and agrees to perform hereunder, including the duty to correct (at IMS’s sole expense) any project deliverable that is deficient. IMS also agrees to indemnify and hold harmless Company from and against any liability attributable to the acts and/or omissions of IMS and any IMS personnel in connection with IMS’s performance of, or promise to perform, an opportunity hereunder.
- This Agreement (including any opportunity description and acceptance thereof) represents the entire agreement between the parties and supersedes any and all prior or contemporaneous oral or written agreements. No changes to this Agreement shall be valid unless in writing and executed by both parties. If any provision hereof shall be held unenforceable, the remaining provisions will remain in full force and effect. The parties acknowledge and agree that unless explicitly stated herein, this Agreement shall in no event be construed as a third-party beneficiary contract, and it is not intended for the benefit of any person or company except the parties hereto.
- This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Florida without regard to choice-of-law principles. Any legal proceeding of any nature brought by either party against the other to enforce any right or obligation under this Agreement, or arising out of any matter pertaining to this Agreement shall be heard in either the State or Federal courts located in, or having jurisdiction in and for, Seminole County, Florida. The parties consent and submit to the jurisdiction of any such court and agree to accept service of process outside the State of Florida in any matter to be submitted to any such court pursuant hereto.
The following checked box acknowledgement hereby indicates that this Agreement has been read, understood and agreed upon by the parties hereto.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper authority, have executed this Agreement as of the date this form is submitted.