Last Updated: May 23rd, 2024
This Provider Agreement (this “Agreement”) is made and entered into by and between the party set forth as it identifies itself in the webform when signing up to be a service provider (“Provider”), and Hakuna Services Inc., a Delaware limited liability company, d/b/a “Dimension” (“Dimension”).
1. Provider’s Services
Dimension provides waste management, junk removal, and other related services to its customers, and hereby retains Provider to assist in provision of services to support the operations of the business (the “Services”). Dimension hereby retains Provider as an independent Provider and Provider accepts such retention to provide the Services on behalf of Dimension upon the terms and conditions set forth herein:
a. Provider shall undertake the Services as assigned by Dimension through the Dimension website, https://www.getdimension.com (the “Site”) pursuant to this Agreement.
b. Provider represents and warrants that Provider’s execution and delivery of this Agreement and the performance of its duties hereunder do not, and will not, breach or conflict with any obligation of Provider to any other person or entity. Provider will comply with the provisions of the Data Processing Addendum set forth in Exhibit A.
c. Provider represents and warrants that it is a business entity, duly formed or organized, validly existing and in good standing under the laws of its jurisdiction of formation or organization or a sole proprietorship.
d. Provider agrees to devote sufficient time, attention and efforts in order to promptly and satisfactorily complete the services, without any commitment as to the number of hours.
e. In the event Provider utilizes the services of third parties to provide the Services (“Sub-Provider”), Provider agrees to ensure Sub-Provider consents to the terms herein. In addition, Provider shall be liable for the acts or omissions of its Sub-Providers.
f. If Provider has agreed to pay out rebates or similar, Provider will pay out the applicable amount based on the price quotes or pricing formulas provided by Dimension, within seven (7) days of the shipment being picked up from the client location.
2. Nature of Relationship and Services
With respect to the nature of the relationship between Company and Provider hereunder, and with respect to the nature of Provider’s Services to be performed, both Provider and Company agree that their relationship is intended to be, and shall at all times be a bona fide business-to-business contracting relationship, within the meaning of Section 2750.3(e)(1) of the California Labor Code, and Provider warrants and represents as that:
1. Provider is free from the control and direction of Company in connection with the performance of the Services.
2. Provider is providing services directly to Company, and not directly to Company’s customers.
3. Provider has obtained all required business licenses and business tax registration.
4. Provider maintains a business location separate from Company’s business or work location.
5. Provider is customarily engaged in an independently established business of the same nature as that involved in the Services.
6. Provider contracts with other businesses to provide the same or similar services as the Services provided under this Agreement, and Provider maintains a clientele without restrictions from Company.
7. Provider advertises and holds itself out to the public as available to provide the same or similar services as the Services provided under this Agreement.
8. Provider shall, unless set forth otherwise in a Statement of Work, provide its own tools, vehicles, and equipment to perform the Services.
9. Provider has negotiated its own rates with respect to this Agreement with Company.
10. Consistent with the nature of the Services, Provider can set its own hours and location of work as long as it provides sufficient time and effort to provide the Services in a timely, competent and workmanlike manner.
11. No license from the Provider’s State License Board is required for the Services, as required by Chapter 9 (commencing with Section 7000) of Division 3 of the California Business and Professions Code.
12. Provider has the right to control the manner and means of accomplishing the Services and the result desired.
13. The Services are of a type of work usually done by a specialist without supervision.
14. Provider supplies the instrumentalities, tools, and the place of work for the Services.
15. The parties do not intend to create, and do not believe they are creating a relationship of employer-employee, joint venture, partnership of or other such arrangement with respect to either this Agreement or any of the Services to be performed hereunder.
3. Provider Requirement
a. Provider shall have such legal qualifications and capabilities as Dimension reasonably requires and shall abide by the applicable rules and regulations of Dimension. Provider shall, in the provision of the Services, comply with all applicable laws, regulations, and ordinances, including but not limited to laws and ordinances relating to (a) licensed motor operators, (b) traffic laws, and (c) any and all illegal dumping of waste, including but not limited to compliance with the Illegal Dumping Ordinance, San Francisco Public Works Code, Article 25, Section 1500 et al.
b. Provider shall keep full, written records of the Services as specified in the Service Provider Policy as defined in Section 5 . All such records shall be the property of Dimension, and Dimension shall have unrestricted access to all records created by Provider hereunder.
c. Provider warrants and represents that they are legally authorized to work in the United States to provide Services arising from or related to this Agreement. To the extent permissible by law, Provider shall provide to Dimension evidence reasonably satisfactory to Dimension, including, without limitation, Provider’s authorization to work in the United States before such Provider commences performance of Services.
d. Provider agrees that it shall remain fully liable for the acts of any subcontractors, assistants, employees or agents of Provider.
e. Provided shall be required to complete a background check prior to providing the Services and provide Dimension a current copy of their drivers license.
f. Each Provider may only maintain one (1) account with Dimension.
g. Provider shall be solely liable for any damages caused to Customer or any third party during performance of the Services and shall indemnify Dimension as set forth in Section 10.j.
4. Compensation
Dimension agrees to pay Provider compensation for the Services, as set forth in the SPP, as updated from time to time by Dimension. Payment to Provider will be made within seven (7) days after Dimension receives payment from the Customer, or the payment terms otherwise mutually agree with Provider, whichever is the longer. Payments may be prorated based on actual receipt of funds.
5. Service Provider Policy and Data Rights
a. All Services rendered by Provider hereunder shall additionally be subject to and Provider agrees to comply with Company’s Service Provider Policy located at https://app.getdimension.com/service-provider-policy incorporated herein by reference (the “SPP”).
b. Provider acknowledges and agrees to be bound by such SPP in the performance of Services hereunder. Provider further acknowledges and agrees that the SPP are subject to change and may be amended at any time by Dimension without notice. Any updates to the SPP shall become effective immediately upon Provider’s access to the Services.
c. Provider is a Service Provider under the California Consumer Privacy Act and shall not have any rights to personal data collected by Dimension or Provider under this Agreement. Upon termination, any Dimension data held by Provider (other than as required to comply with law) shall be immediately deleted.
6. Term of Agreement
a. This Agreement will become effective upon execution and will terminate on the completion of the Services or until terminated as set forth below.
b. Either party may terminate this Agreement at any time, for any reason, by (i) if terminated by Provider, giving fourteen (14) days’ written notice to Dimension by contacting us via webform via email at support@getdimension.com (ii) if terminated by Dimension, immediately upon notice from Dimension to Provider via email, text or personal notice. Provider understands and agrees that Dimension may terminate this Agreement any time, with or without cause.
c. This Agreement terminates automatically on the occurrence of any of the following events: (i) bankruptcy or insolvency of either party; or (ii) dissolution of either party; or (iii) the sale of the business of Provider.
7. Relationship of Parties
The parties intend that Provider shall render such services to Dimension as an independent Provider and not as an employee, agent, joint venturer, partner or otherwise. Provider shall be solely responsible for Provider’s acts and the acts of its employees, agents or subcontractors under its business as an independently established business. Provider shall have the sole and exclusive right to control and direct the manner and method of performing the services hereunder, subject to (i) its obligations hereunder as well as under the SPP, (ii) Provider’s obligation to perform all Services in accordance with all applicable federal, state, and local laws, regulations and ordinances, and (iii) Dimension’s right to ensure that the results are satisfactory to and in accordance with Dimension’s expectations.
Provider acknowledges that Dimension will not withhold any social security or income taxes or make any contributions to unemployment or workers’ compensation funds on behalf of Provider or its employees, agents or subcontractors. Provider shall be responsible for filing all tax forms and shall pay all taxes, when and as due, on the compensation received under this Agreement, including payroll taxes and estimated taxes. Provider shall provide Dimension with proof of payment of taxes on demand.
Neither Provider nor its employees, agents and subcontractors shall be entitled to any benefits accorded to Dimension’s employees, including but not limited to medical, dental, vision, life, LTD, and 401(K) plans, and vacation or sick pay. In the event that any governmental agency or court of competent jurisdiction reclassifies the employment status of Provider and its employees, agents and subcontractors, Provider hereby expressly waives any claim to any of the aforementioned benefits of Dimension for the period of time prior to the date of such reclassification. Additionally, in the event that Provider’s waiver of any claim of entitlement to any of Provider’s benefits is determined to be unenforceable for any reason, in consideration for the payment received under this Agreement, Provider hereby agrees not to participate in any of the benefit plans listed in this section where participation is voluntary.
Provider shall be responsible for procuring, at Provider’s expense and in Provider’s name, at a minimum, such insurance as shall be required by state law, in addition to any insurance requirements set forth in the SPP. In this regard, Provider agrees to comply with all applicable laws of the State of New York without reference to its conflict of laws principles. Upon Dimension’s request, Provider will provide Dimension with satisfactory evidence of compliance with this requirement. Provider further agrees that if Dimension should legally incur any cost whatsoever under any workers’ compensation laws by reason of Provider’s injury or death while engaged in performing the services, Provider will reimburse Dimension for such costs.
8. Non-Solicitation/Non-Circumvention.
During the term of the Agreement and for a period of one (1) year thereafter, Provider will not, without first obtaining the express prior written consent of Dimension (the granting of such consent to be in the sole and absolute discretion of Dimension), either directly or indirectly, on behalf of Provider or any other person or entity, (i) contact, solicit, interfere with or contract with (or attempt to do any of the foregoing) any person or entity with whom Provider had contact with or became aware of in the course of performing the Services and that was a customer or supplier of Dimension at any time during the Agreement regarding any matter involving or related to the Services, or (ii) solicit, entice, induce, hire, employ, seek to employ, or employ, directly or indirectly any employee or consultant of Dimension who was employed by Dimension at any time during the Agreement and with whom Provider had any contact with during the term of the Agreement. In the event of any violation (or multiple violations) by Provider of this provision, (a) this Agreement shall immediately be terminated, (b) Provider shall be immediately and permanently banned from any further use of the Site and (c) Provider shall additionally pay liquidated damages to Dimension as set forth in Section 11(b), below.
9. Confidential Information
a. Dimension may, from time to time, in connection with the Services and this Agreement, disclose confidential information to Provider (the “Confidential Information”). Such Confidential Information shall include, but not be limited to all customers of Dimension, as well as all customer lists, sales, or marketing lists of Dimension. Provider shall not, at any time during the term of this Agreement, and for a period of five (5) years thereafter, solicit, market to, or contact any customer of Dimension for any purpose. Additionally, Provider will not disclose, and will not permit the disclosure of Dimension’s Confidential Information to third parties at any time during, or for a period of five (5) years after the termination of this Agreement.
b. “Confidential Information” shall not include information Provider can document (i) is in or (through no improper action or inaction by Provider) enters the public domain; (ii) is generally known or easily ascertainable by nonparties of ordinary skill or in the business of Dimension; (iii) is released by Dimension to any other person, firm or entity (including governmental agencies or bureaus) without restriction; (iv) was rightfully in Provider’s possession or known by Provider prior to receipt from Dimension, as evidenced by Provider’s written records in existence prior to the disclosure by Dimension; (v) was rightfully disclosed to it by another person without restriction; or (vi) was independently developed by it by persons without access to such information and without use of any Confidential Information of Dimension.
10. Provider’s Representations and Indemnities
Provider hereby represents and warrants as follows:
a. Provider shall perform all Services hereunder in a timely and workmanlike manner with due diligence, in accordance with the terms of this Agreement and the SPP.
b. In its provision of the Service, Provider shall maintain their equipment and vehicle, drive and secure any materials picked up in a safe and diligent manner.
c. Provider has the full power, ability and authority to enter into and perform this Agreement.
d. Provider is not subject to any obligations or disability which will or might prevent it from or interfere with the full keeping and performing of all the covenants and conditions to be kept and performed by it hereunder.
e. The execution and performance of this Agreement does not and will not violate the contractual or other rights of any third party.
f. It shall comply with all applicable laws, statutes, regulations, and ordinances, in performance of this Agreement.
g It shall comply with the SPP at all times while providing the Services.
h. all contact, billing insurance and licensing information provided by Provider to Dimension, is the best of their knowledge true, accurate and up to date at all times.
i. It owns or has sufficient rights in all equipment to be used by Provider in the performance of the Services.
j. Provider shall and does hereby fully indemnify, defend, and hold harmless Dimension, and Dimension’s directors, managers, officers, owners, shareholders, members, employees, agents, representatives, its licensees and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, and reasonable attorney’s fees and costs, that Dimension may incur or suffer and that result from, or are related to third party claims related to (i) any damage or injury to persons or property caused by or sustained in connection with Provider’s performance of Services under this Agreement, whether performed individually or through use of employees, agents or subcontractors of Provider; (ii) any failure by Provider to comply with its obligations specified in this Agreement; (iii) any violation by Provider of any statute, regulation, or ordinance, including but not limited to the Illegal Dumping Ordinance, San Francisco Public Works Code, Article 25, Section 1500 et al, as well as any state or federal tax, labor relations, wage and hour, employment discrimination, immigration, wrongful termination, or other employment related statute or policy with respect to Provider or any employees, agents or subcontractors of Provider performing services under this Agreement; and (iv) any breach by Provider of any representation, warranty or agreement hereunder.
11. Limitations on Damages and Remedies of Dimension.
a. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Dimension SHALL NOT BE LIABLE TO PROVIDER, CUSTOMER, OR ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER INDIRECT LOSS OR DAMAGE, INCLUDING LOST PROFITS, ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM, OR THE USE OR PERFORMANCE OF ANY SERVICE, WHETHER IN AN ACTION FOR OR ARISING OUT OF ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR Dimension’S OBLIGATION TO PAY FEES AND EXPENSES TO PROVIDER, Dimension’S LIABILITY FOR ANY CAUSE OF ACTION SHALL NOT EXCEED THE AMOUNTS PAID BY Dimension TO PROVIDER DURING THE TWELVE MONTHS PRIOR TO THE INCIDENT UPON WHICH THE CLAIM OCCURRED.
b. LIQUIDATED DAMAGES. IN THE EVENT OF PROVIDER’S BREACH OF ITS OBLIGATIONS UNDER SECTION 8 OF THIS AGREEMENT, Dimension SHALL BE ENTITLED TO RECEIVE, AS LIQUIDATED DAMAGES FOR EACH INSTANCE OF SUCH BREACH, PAYMENT IN AN AMOUNT EQUAL TO THE GREATER OF (I) TEN THOUSAND DOLLARS ($10,000.00) OR (II) AN AMOUNT EQUAL TO TWO (2) MONTHS OF GROSS BILLABLES TO BE PAID BY THE CUSTOMER TO Dimension DURING THE TERM OF THE CONTRACT BETWEEN CUSTOMER AND Dimension. THE PARTIES AGREE THAT THE NEGATIVE IMPACT ON Dimension WOULD BE IMPRACTICAL, AND THAT IT WOULD BE EXTREMELY DIFFICULT TO ESTIMATE THE ACTUAL DAMAGES TO BE SUFFERED BY THE NON-BREACHING PARTIES AS A RESULT OF SUCH BREACH, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THE IMMEDIATELY PRECEDING SENTENCE REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH Dimension WOULD INCUR AS A RESULT OF SUCH BREACH. THE PARTIES ADDITIONALLY AGREE THAT THE FOREGOING LIQUIDATED DAMAGES ARE REASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THE CONTRACT WAS MADE, IN ACCORDANCE WITH THE REQUIREMENTS OF CALIFORNIA CIVIL CODE SECTION 1671(B). ALL PARTIES DO HEREBY AGREE THAT THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION ARE A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT Dimension WOULD SUFFER IN THE EVENT OF THE BREACHES DESCRIBED HEREIN. SUCH AMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR ANY INCIDENT OF BREACH OUTLINED IN THIS SECTION. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE REASONABLE LIQUIDATED DAMAGES TO Dimension.
c. The remedies provided in this section shall be cumulative and in addition to any other remedies which Dimension may have against Provider from time to time, and shall not limit Dimension’s ability to seek other remedies available to it at law or in equity.
12. Arbitration
a. Provider agrees that, if a dispute arises from or in connection with this Agreement on any matter other than confidentiality under Section 9, such dispute shall be exclusively submitted to binding arbitration in accordance with the rules of the American Arbitration Association then in effect. The arbitration shall take place in San Francisco County, California and both Provider and Dimension agree to submit to the jurisdiction of the arbitrator selected in accordance with American Arbitration Association rules and procedures. Provider and Dimension agree that this arbitration procedure will be the exclusive avenue of redress for any disputes initiated by Provider, relating to or arising from Provider’s performance of services for Dimension, including disputes over rights provided by federal, state, or local statutes, regulations, ordinances, and common law, including all laws that prohibit discrimination on any protected classification or other provisions where arbitration is prohibited by law. Provider specifically agrees that this provision includes any claims for payment pursuant to or for breach of this Agreement. The arbitrator shall have discretion to award monetary and other damages, or no damages, and to fashion such other relief as the arbitrator deems appropriate. The arbitrator shall also have discretion to award the prevailing party reasonable costs and attorney’s fees incurred in bringing or defending an action under this provision.
b. To the maximum extent permitted by law, Provider waives any rights to a jury trial and to participate in any class action suit or proceeding against Dimension.
13. Miscellaneous
a. This Agreement constitutes the entire agreement between the parties with respect to the matters contained herein and supersedes any and all prior and contemporaneous agreements, negotiations, correspondence, undertakings, and communications of the parties, oral or written, with respect to that subject matter.
b. Provider acknowledges that Dimension does not tolerate harassment or discrimination of any kind, and Provider agrees to comply with all applicable laws relating thereto.
c. Except as otherwise provided in this subsection, Provider may not, without the express written permission of Dimension, assign or pledge any rights or obligations hereunder. Provider may subcontract the performance of its duties and obligations under this Agreement to a third party or parties only with the prior written consent of Dimension. Provider may assign this Agreement in connection with the sale of Provider (whether by merger, sale of equity interests, sale of assets or otherwise) without the prior written consent of Dimension. Such subcontractor may be removed at the request of Dimension for any reason not prohibited by law.
d. Subject to Dimension’s sole right to update the SPP as set forth in Section 5, no amendment or modification of this Agreement shall be valid unless evidenced by a written instrument executed by Provider and Dimension.
e. A waiver of a breach of any provision of this Agreement shall not constitute a waiver of any subsequent breach of that provision or a breach of any other provision of this Agreement. Failure of Dimension or Provider to enforce at any time or from time to time any provision of this Agreement shall not be construed as a waiver thereof.
f. The provisions of this Agreement and the covenants herein contained shall be construed independently of each other, it being the express intent of the parties hereto that the obligations of, and restrictions on, the parties as provided herein shall be enforced and given effect to the fullest extent legally permissible.
g. Each party agrees to the applicable governing law of the State of New York, without reference to its conflicts of law principles, and consents to the exclusive jurisdiction of the State of California, the County of San Francisco and courts located within such jurisdiction.
h. If any term, provision, or part of this Agreement is found by a court to be invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other terms, provisions, and parts of this Agreement shall nevertheless remain in full force and effect unless the provision found to be invalid or unenforceable is of such material effect that this Agreement cannot be performed in accordance with the intent of the parties in the absence thereof.
i. The termination of Provider’s retention with Dimension, for any reason, shall not relieve either party of any of that party’s obligation under this Agreement existing at, arising as a result of, or relating to acts of omission occurring prior to such termination. Without limiting the generality of the preceding sentence, in no event shall the termination modify or affect any of Provider’s obligations under Sections 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, and 13, which shall survive termination of this Agreement.
14. Notices Except as set forth otherwise, any notice and other communication required or desired to be given by Provider to Dimension under this Agreement shall be in writing and shall be deemed given when delivered via the webform on the Dimension website, via support@getdimension.com.
Provider agrees to receive notice via email.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
Exhibit A: Hakuna Services, Inc (dba Dimension) – Data Processing Addendum
This Data Processing Addendum (“DPA”) is part of the Dimension Provider Agreement between Hakuna Services, Inc. (“Dimension”) and a service provider to Dimension (“Provider”) for providing services to Dimension’s customers (“Customer”).
This DPA reflects the parties’ agreement with regard to Personal Information of a Customer as those terms are defined under the California Consumer Privacy Act (“CCPA”) (referred to hereafter as “Customer Data”), that Provider processes in the course of providing Dimension the Services under the Agreement.
In providing the Services to Dimension pursuant to the Agreement, Provider may Process Customer Data on behalf of Dimension, and the parties agree to comply with the following provisions with respect to any Customer Data. Provider shall maintain the confidentiality of Customer Data. Dimension is responsible for the means by which it acquires the Customer Data and for determining the purpose and means of processing Customer Data. Customer will provide Customer Data to Dimension solely for the purpose of Dimension performing the Services. Provider shall provide the Services and process Customer Data in accordance with the Agreement and only as necessary to perform the Services and comply with applicable law, and will not collect, use, retain, access, share, transfer, or otherwise process Customer Data for any purpose not related to providing such Services or compliance with applicable law. Provider will refrain from taking any action that would cause any transfers of Customer Data to or from Provider to qualify as “selling” personal information as those terms are defined under the CCPA.
Provider will use commercially reasonable security procedures that are designed to maintain an industry-standard level of security and prevent unauthorized access to and/or disclosure of Customer Data. Provider will retain Customer Data only for as long as Dimension deems it necessary for the permitted purpose, or as required by applicable laws. At the termination of this DPA, or upon Dimension’s written request, Provider will either destroy or return Customer Data to Dimension, unless legal obligations require storage of the Customer Data. If Provider, directly or indirectly, receives a request submitted by a Customer to exercise a right they have under the CCPA or other privacy law in relation to that Customer’s Data, it will provide a copy of the request to Dimension. Dimension will be responsible for handling and communicating with Customer in relation to such requests.