Agreement between Elder Friends Network, Inc. (doing business as Amia)
And Friend
This Agreement is entered into between Elder Friends Network, Inc., d/b/a Amia (“Amia”) and (“Friend”), d/b/a as a sole proprietor, for the purpose of setting forth the parties’ understanding regarding their respective rights and obligations.
I. RECITALS
1.1. ELDER is an elder to whom Amia refers a Friend for companionship and social interaction.
1.2. FAMILY are those individuals, who by blood or legal status, possess appropriate authority to arrange companionship for Elder and are responsible for paying for Friend visits.
1.3. Amia is an online marketplace or platform that connects Friends with older adults to provide social interaction to alleviate elder loneliness and depression, while providing feedback and peace of mind to families about their loved ones. Amia does not arrange or provide care services.
1.4. FRIENDS are smart, empathetic persons who desire to serve elders (“Elders”). Friends are self-employed proprietors customarily engaged in an independent trade of providing companionship and social interaction to elders under the terms and conditions set forth herein. Friend acknowledges that Amia’s oversight regarding Friend’s provision of services to Friend’s clients is strictly limited to that required to ensure that Friend meets the standards for service that Amia agrees to between Amia and Elder and/or the families of Elders (“Family”).
1.5. Friend possesses the independent degree of skills necessary to perform the services called for in this Agreement.
1.6. Friend represents that he or she is self-employed and a statutory non-employee under federal law, which status Friend expressly acknowledges.
1.7. The Parties enter into this Agreement to establish the conditions by which Amia, an online marketplace, will make available its software and services to Friend. Amia is offering its software and services to Friend(s) in exchange for a fee from the Family based on the Friend’s rate for services
WHEREFORE, Amia and Friend (“Parties”) agree as follows:
II. SERVICE PROVIDER’S STATUS
The parties understand and agree the Friend is a self-employed proprietor, and thus, the relationship of Friend to Amia is not that of employee/employer. Friend understands that Amia relies on the following statements in entering into this self-employment agreement. The parties agree that:
2.1. Friend is engaged in an independent business to provide companionship and social interaction to Elder(s). Friend is free from control and direction by Amia in the performance of these services except to the extent supervision is required by federal or state law, regulations, rules, and the scope of services dictated by the Agreements between Elder/Family and Friend and between Amia and Elder/Family. Friend and Amia collectively agree that the parties both intend for Friend to be self-employed with no employment relationship with Amia.
2.2. Friend represents that Friend has filed a trade name affidavit and is entitled to operate under the business name stated in this Agreement under the laws of the State of Colorado. If Friend has not filed a trade name affidavit or filed with the State of Colorado under a business name that is because Friend desires to conduct Friend’s business as a sole proprietorship under Friend’s own name without registering it as a trade name. See C.R.S. § 7-71-101.
2.3. Friend is free to provide the services covered by this Agreement through other providers and is not required to provide services exclusively through Amia, except that Friend may choose to provide services exclusively through Amia for a finite period of time. Amia does not require Friend to provide services exclusively for any particular Elder/Family.
2.4. Amia relies upon Friend’s expertise and experience in performing the services covered by this Agreement and shall not instruct nor train Friend in how to perform such services, except for initial orientation necessary to ensure that Friend understands and is prepared to meet the minimum service standards required any Agreement between Amia and Elder and/or Family. Friend is responsible for performing the services covered by this Agreement in a competent, professional manner and is responsible for determining the means and methods of accomplishing this result.
2.5. Friend bears the risk that monies paid by Amia to Friend pursuant to this Agreement are insufficient to cover Friend’s costs in performing services under the Agreement and that Friend may enjoy a profit or suffer a loss in performing this Agreement;
2.6. Amia shall provide no employee-type benefits to Friend.
2.7. Amia does not establish a quality standard for Friend and does not oversee the actual work or instruct Friend as to how the services are provided. But Friend must meet the minimum requirements of Amia’s scope of service and performance standards required to meet the expectations of Elder and/or Family as described below in Section IV.
2.8. Amia does not pay Friend. Family or Elder will pay Friend directly for services rendered through a third-party payment processor.
2.9. Neither party will terminate the work during the Agreement period unless the other party violates the terms of the contract, fails to produce a result that meets the specifications of the contract, or as otherwise provided in Section III below.
2.10. Amia provides only that training necessary to ensure that Friend is prepared to meet the scope of service required by this Agreement or any Agreement between Amia and Elder and/or Family. This is accomplished in a mandatory initial orientation provided by Amia. Amia does not require ongoing training. But Amia may supply resources or offer voluntary training to further Friend’s professional development.
2.11. Amia does not provide tools or equipment to Friend.
2.12. Amia does not dictate the time of performance, except that Friend must keep assignments to Elders that Friend voluntarily accepts through the Amia online marketplace.
2.13. Amia does not combine its business operations in any way with Friend’s business, but instead maintains such operations as separate and distinct. Neither Amia nor Friend shall represent to others that Friend is an employee of Amia.
2.14. Friend is not entitled to workers’ compensation benefits or unemployment insurance benefits unless coverage is provided by Friend. Friend will not be treated as Amia’s employee for federal tax purposes. Friend is obligated to pay federal and state income tax on any monies earned pursuant to this contract relationship and shall hold Amia harmless from any liability arising out of Friend’s failure to fulfill these obligations.
2.15. Amia relies on the independent and personal judgment and skills Friend brings to this contractual relationship. Therefore, the work and services provided for herein shall be performed by Friend personally except as provided below.
III. TERMS
3.1. This contract will remain in force until terminated by either party in accord with Paragraphs 3.2 and 3.3 below.
3.2. Termination by Amia. Amia may terminate this contract for the following reasons by written notice to Friend.
3.2.1. Without cause or reason upon written notice to Friend.
3.2.2. If Friend does not maintain an average Elder and Family rating of “3” or higher. Amia will excuse a lowly rated report at its sole discretion if Friend provides a satisfactory written explanation of the low rating within ten (10) days of the posting of the rating.
3.2.3. If Friend fails to comply with any term or meet any expectation stated in this Agreement. Any breach of Section IV below that adversely affects the health, welfare, or safety of the Elder is a material breach of this Agreement.
3.2.4. If the circumstances described in Sub-Paragraphs 3.2.1, 3.2.2, or 3.2.3 above occur, Friend will be considered to be in default of this Agreement. In the case of a material breach of this Agreement, Amia may terminate this Agreement immediately with written notice to Friend. In the event of a non-material breach of this Agreement, Amia in its sole discretion may terminate this Agreement immediately or provide Friend in writing a determinate period of time in which to cure any breach of this Agreement. Amia will provide written notice to Friend of any breach of this Agreement.
3.2.5. Any material breach of this Agreement, including but not limited to the circumstances described in Paragraph 3.2.3, is grounds for immediate termination of this Agreement.
3.2.6. A Friend whose profile remains on the Amia’s online marketplace but who is not accepting or being selected for assignments is in “dormant” status. A Friend whose account is dormant for 90 days may be deleted, and this Agreement will terminate without the written notice required.
3.3. Termination by Friend. Friend may terminate this contract for the following reasons by written notice to Amia.
3.3.1. Without cause or reason with thirty (30) days’ written notice.
3.3.2. If Amia fails to comply with any obligation under this Agreement. Amia will have thirty (30) days to cure any default before Friend may terminate this contract. Friend will provide written notice to Amia of any breach of this Agreement.
3.4. In the event of a breach by either party that may be cured as described in this Section III, the written notice to the breaching party will specify the nature of the breach, the corrective action required to cure the breach, and the date upon which the contract will terminate if the breach is not corrected.
IV. FRIEND’S DUTIES
4.1. Friend shall provide social interaction and companionship to Elders.
4.2. Friend will not disclose personal information of Elder or Elder’s Family. “Personal information” includes any information that that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context, including but not limited to social security numbers, financial information, medical information, and personal contact information such as phone numbers, email addresses, and social media accounts.
4.3. Friend shall provide NO physical care, which includes not providing assistance with medication, carrying Elder, or lifting Elder if she or he should fall. Friend may provide routine assistance for Elder to stand on his or her own.
4.4. Friend will not accept gifts or money from Elder without written permission from Family.
4.5. Friend will NOT transport Elder in Friend’s personal vehicle or Elder’s personal vehicle. Friend may accompany Elder on public transportation, including taxi, Uber, Lyft, or other similar modes public modes of transportation with the Families permission and commitment to pay for the transportation. Amia assumes no responsibility for payment of transportation costs and is not liable for any damages arising from Friend’s violation of this Paragraph 4.5.
4.6. Friend must pass a national background check of Amia’s choosing before posting a profile on the Amia platform or providing any services. Amia will monitor Friend’s status and run a new background check at any time at its sole discretion as a condition of further listing Friend’s services on its online marketplace.
4.7. Friend is required to arrange with a third-party vendor designated by Amia for a background check that the vendor will deliver to Amia. Friend will pay the vendor for the cost of the initial background check.
4.8. Friend shall abide by all laws regarding the legal rights of Consumer, and other laws, rules and regulations pertaining to the provision of services and to participate in any applicable reviews and/or surveys of Amia programs by local, state or federal agencies.
4.9. Friend warrants (1) that Friend has not been the subject of a complaint, restraining order or any other legal action, arrested for, charged with or convicted of any criminal offense involving violence, dishonesty, theft, or an offense where an at-risk adult was a victim; and (2) has not been and/or is not currently required to register as a sex offender in any jurisdiction or with any governmental entity.
4.10. Friend will complete an orientation and the tests provided by Amia to acquaint Friend with its expectations for Elders and procedures necessary to facilitate this Agreement.
4.11. Friend will submit his or her report on each visit through the online marketplace no later than 48 hours after each visit. A complete report is required before payment will be processed.
4.12. Friend will comply with any and all expectations communicated to Friend by Amia during the initial orientation or in writing during the term of this Agreement.
V. AMIA’S DUTIES
5.1. Amia shall provide an online marketplace through which Friend will conduct functions relating to the provision of his or her services including, but not limited to, accepting assignments, paying fees to Amia, and completing reports on visits.
5.2. Amia shall provide support services necessary to access the online marketplace.
5.3. Amia shall provide notification of available training or resources.
5.4. Amia shall disseminate all necessary information that may impact the provision of companion services to Elder when authorized by Elder and/or Family.
5.5. Amia will provide an initial orientation for Friend designed to aid Friend in meeting the expectations of this Agreement and delivering exemplary Elder services.
VI. PAYMENT
6.1. Friend may establish fees for Elder visits, but Friend will charge Family no less than $25 per hour. Friend will establish the hourly fee for each visit in advance with Family.
6.2. The hourly rate will be split between the Friend and Amia per the distribution chart listed in the FAQs on the online marketplace. In order to facilitate payment Amia will allow Friend to make payment directly to Amia through the online marketplace. Friend authorizes Amia or its third-party processor to split the hourly rate from payments made to Friend by Elder and/or Family through the online marketplace. The payment processor will make necessary tax reporting on Form 1099K to Friend. In the event that automatic deduction of referral fees is not accomplished for any reason, Friend will remit referral fees to Amia within five (5) days of the visit.
6.3. The Friend must submit a visit report before payment will be processed. If Family does not pay Friend for services through the online marketplace within one week of receiving the visit report, Amia will prompt Family to pay Friend through the online marketplace on Friend’s behalf.
6.4. Although Amia provides an online marketplace to facilitate payment of Elder and Family fees and Friend’s payment of fees, Amia does not take possession of any portion of the fees paid by Elder and/or Family to the Friend. All payments will be processed by a third-party payment processor that will split and distribute the fee to Friend and Amia.
VII. CONFIDENTIALITY
Friend acknowledges that, in the performance of Friend’s duties under this Agreement, Friend will or may come to know information that is treated by Amia as confidential information. It is the nature of our program that there is a constant flow of personal, confidential information pertaining to the Elder, Families and Friends through Amia. This information needs to be passed to Friends so that they can be better equipped to serve that individual. With this knowledge, Friends have a great responsibility to respect and maintain confidentiality about these personal matters. Information should be shared only with Family or Amia.
Friend shall observe and comply with all applicable Colorado rules and regulations and Amia’s policies and procedures regarding confidentiality.
VIII. INTERFERENCE
Friend recognizes and agrees that Amia has invested significant cost and effort in to develop relationships with Family and Elder and developing its business model and online marketplace in order to provide an online marketplace for Friend to market his or her services. Therefore, Friend agrees that Friend will not solicit Elder or Family to provide services independently of Amia during the term of this contract or for twelve (12) months after the termination of this contract as provided in Paragraph 3. Friend will not, either directly or indirectly, interfere with Amia’s contracts and relationships, or prospective contracts and relationships, including, but not limited to, Amia’s Elder or Family contracts and relationships. This section shall not be interpreted in such a manner as to deprive any Elder or Family member of any rights guaranteed by law, regulation, or contract that they may exercise at their own volition.
IX. REMEDIES
The parties agree that Amia will suffer irreparable injury to its business and property interests in the event Friend breaches or attempts to breach the provisions of Sections VII or VIII. Therefore, it is agreed that in the event of Friend’s breach or attempted breach, Amia shall be entitled to an injunction to restrain any breach or prospective breach of this Provision by Friend and all persons acting by or through Friend in regard to such breach, and other equitable relief necessary to prevent a breach or to remedy a breach. Amia shall also be entitled to any damages that it can prove resulted from the breach or prospective breach of Sections VII or VIII and any other relief available under common law, statutes, regulations, tort, contract, and equitable theories. Such damages shall include but not be limited to costs of litigation, expert witness fees and reasonable attorney’s fees incurred by Amia in pursuing its rights under this Agreement. Friend waives the posting of a bond for any injunctive relief sought by Amia. These remedies are in addition to and not in lieu of Amia’s rights under common law, equity, the Colorado Uniform Trade Secrets Act, and any other applicable laws, regulations or theories of recovery.
X. ENTIRE AGREEMENT
Except as otherwise provided herein, this Agreement cannot be modified except in writing. It is the entire agreement between the parties relating to Friend’s and Amia’s relationship and replaces any other agreement.
XI. NOT ASSIGNABLE
Friend cannot assign performance of the Agreement to others.
XII. STATE LAW
This Agreement is governed by the laws of the State of Colorado and the parties agree that venue is proper for any litigation that may arise out of this Agreement in the county in which Friend resides while providing services pursuant to this Agreement.
XIII. NOTICES
Any written notices required by this Agreement must be given through the online marketplace or via email to the email provided by the Parties for the conduct of business.
The parties enter into this Agreement knowingly and voluntarily.
