Last Modified April 25, 2019
These terms and conditions are expressly incorporated by reference to the online PERSONAL SHOPPER AGREEMENT (the “Agreement”) is made by and between Bodaty, LLC operating under its brand Samyata (“Samyata” or the “Company”) and the undersigned individual or entity acting as an outside sales agent selling various products and services (the “Personal Shopper” or "you") on the date that Personal Shopper executes the Agreement (the “Effective Date”). Company and Personal Shopper may each be referred to in this Agreement as a “Party” or collectively as the “Parties.” The Parties agree that Personal Shopper shall assist Samyata with fulfilling Samyata's customers’ orders made through the Samyata mobile and online application (the "App") (the “Services”) and Personal Shopper wishes to undertake certain duties and responsibilities for providing the Samyata Services.
WHEREAS, Samyata grants Personal Shopper a non-exclusive non-transferable right to provide the Samyata Services to Samyata's customers through the App (“Customer(s)”) which includes the pickup of items purchased by Customers at participating businesses ("Merchants") and delivering those products to Customers; and communicating any issues with the pickup and delivery to Samyata, Merchants, and Customers.
1. User Representations, Warranties, and Covenants
By using the Services, you expressly represent and warrant that you are legally entitled to enter this Agreement. Your participation in using the Services is for your sole, personal or internal business use. When using the Services, you agree to comply with all applicable laws from your home nation, and the country, state, and city in which you are present while using the Services.
You may only access the Services using authorized means. It is your responsibility to check to ensure you download the correct Software for your Device (“Device,” which shall mean a mobile Device owned or controlled by you that you use to access the App.). The Company is not liable if you do not have a compatible Device or if you have downloaded the wrong version of the Software for your Device. The Company reserves the right to terminate your use of the Software and/or Services should you be using the Software or Services with an incompatible or unauthorized Device.
1.1   By using the Services, you agree that:
2. Appointment. Subject to the terms and conditions set forth herein, Samyata hereby appoints Personal Shopper as a non-exclusive Personal Shopper to refer pickup and deliver items purchased by Customers through the Samyata App. Samyata reserves the right to appoint other Personal Shoppers to provide the Samyata Services in all markets throughout the world. All rights in and to the Samyata Services not expressly granted by Samyata herein are hereby reserved by Samyata.
3. Term. This Agreement begins on the Effective Date of this Agreement and continues for as long as Personal Shopper chooses to participate in the Samyata Services, which shall include fulfilling any order once accepted through the App. Subject to the preceding sentence, either Party may terminate this Agreement at any time.
4.1 Amount. Company will pay Personal Shopper fees (“Compensation”) based on the completion of a personal shopping experience or transaction and Personal Shopper’s ratings and reviews as set forth on the Compensation Policy available at https://vahaka.com/compensation.html. Personal Shopper is free to accept requests for a personal shopping experience at its leisure.
4.2. Merchant Requirements. Personal Shopper must meet all third-party merchant requirements to receive the associated Compensation.
5. Ownership. Personal Shopper will have no interest in or rights to the Customer, Merchant, Merchant and Customer data, or any agreements entered between Merchant, Customer, and the Company.
6. Payment Methods. Personal Shopper may be issued a debit card for Personal Shopper to make purchases at pre-approved Merchants related to purchases requested by Customers through the App. Personal Shopper agrees that it will only use such card for pre-approved purchases and no other purpose. Personal Shopper assumes all liability related to any unauthorized purchases or transactions on such card. Personal Shopper agrees to keep such card protected including all information thereon and the PIN. Personal Shopper shall immediately inform Company of any suspected or unauthorized use, including that the card may be lost or stolen.
7. Confidential Information.
7.1 Term of Confidentiality. This Agreement as it relates to Confidential Information shall be in effect and will continue in full force and effect for the term of this Agreement and for a period of five (5) years after termination of this Agreement.
7.2 Definition. Personal Shopper will acquire knowledge of the Company’s confidential information (“Confidential Information”). By way of example, Confidential Information includes, but is not limited to, information that is proprietary or of a unique nature relating to the Company and its business operations, internal operational structure, internal documents, customers, customer lists and contact information, pricing, contracts and other financial information, proprietary software or computer systems, merchandising and marketing techniques, inventions, plans, specifications, strategic information, business plans, supplier agreements, and partnership or joint venture agreements disclosed to or known by Personal Shopper in connection with providing services on behalf of the Company under this Agreement. Disclosure of this Confidential Information in violation of this Section will cause substantial loss to Company. Personal Shopper shall not, at any time during this Agreement’s term or thereafter, except as authorized in a signed writing by the Company, directly or indirectly, use, disclose, reproduce, or in any other way publicly or privately disseminate any Confidential Information as defined in this Section to any person or entity.
7.3 Preservation and Use. Personal Shopper may have access to records or possession of property of the Company. Records or property include but are not limited to all contracts, agreements, financial books, instruments and documents, client lists, scripts, leads, data, reports, programs, telephone and address books, rolodexes, research, listings, equipment, in-house proprietary sales forms, and any other instruments, records or documents relating or pertaining to the Company’s business or the Samyata Services rendered by the Personal Shopper. Records and property will at all times remain the Company’s property. Personal Shopper is only a holder of this property for the sole use and benefit of the Company and will safely keep and preserve such property, except as consumed in the normal business operation of the Company. Upon termination of this Agreement, Personal Shopper will return to the Company all records and property and will neither make nor retain any copies of any records or property after this Agreement’s termination.
7.4 Protection of Confidential Information. Personal Shopper hereby swears and affirms that he/she/it will not, directly or indirectly, use, make available, sell, disclose, or otherwise communicate to any third party, other than in performing the contracted for duties herein and for the benefit of the Company, any of the Company's Confidential Information, either during or after Personal Shopper's business relationship with the Company. Personal Shopper agrees not to disclose or otherwise disseminate such information without prior written approval of the Company’s officers, which they may withhold in their sole and absolute discretion. Personal Shopper acknowledges and agrees that the unauthorized disclosure of Confidential Information of the Company may be highly prejudicial to its interests, an invasion of privacy, and an improper disclosure of trade secrets.
7.5 Location and Reproduction. Personal Shopper will maintain in his/her/its possession and control only such Confidential Information as needed to perform obligations hereunder. Personal Shopper will return to the appropriate person or location or otherwise properly dispose of Confidential Information upon termination of this Agreement. Personal Shopper will not make copies of or otherwise reproduce Confidential Information unless there is a legitimate business need of the Company for reproduction.
7.6. Prior Actions and Knowledge. Personal Shopper represents and warrants that from the time of his/her/its first contact with the Company, Personal Shopper shall hold in strict confidence all Confidential Information and have not disclosed any Confidential Information, directly or indirectly, to anyone outside the Company, or used, copied, published, or summarized any Confidential Information, except to the extent otherwise permitted in this Agreement.
7.7. Third-Party Information. Personal Shopper acknowledges that the Company is in receipt and in the future will receive from third parties, including Customers, their confidential information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Personal Shopper hereby agrees that, during the period in which he/she/it performs Services on behalf of the Company and after such relationship has terminated, Personal Shopper will hold all such confidential information in the strictest confidence and not disclose or use it, except as necessary to perform obligations hereunder, and as is consistent with the Company’s agreement with such third parties.
8. Restrictive Covenants. Personal Shopper may develop good will for the Company through personal contact with Customers and others who will have business relationships with the Company and their processing and banking affiliates. Personal Shopper agrees to the following:
8.1. Any breach by the Personal Shopper of this Agreement will constitute a violation of the terms and conditions of the Personal Shopper relationship between Company and Personal Shopper and may result in immediate termination of the Agreement.
8.2. Non-Solicitation of Customers. The Personal Shopper covenants and agrees that during the term of this Agreement and the time period specified below thereafter, Personal Shopper will not, directly or indirectly, for the benefit of the Personal Shopper or others, either as an employee, agent, consultant, partner, advisor, principal, member, shareholder, or in any other capacity, engage in any of the following acts:
8.3. Non-Disparagement of Company. Personal Shopper warrants, covenants, and agrees that during the term of this Agreement and during a period of three (3) years following the date of termination of this Agreement, Personal Shopper will not, for any reason, solicit, or make false, disparaging comments about the Company, any of the Company’s employees, agents, officers, directors, shareholders, or any of the Company’s affiliates, in any form of media, directly or indirectly, including, but not limited to, verbal, written, email, text, internet message, facsimile, other online posting, or communication on social media platforms including but not limited to Facebook, blogging, Twitter, MySpace, LinkedIn, Snapchat, Google, Yelp, Instagram, Glassdoor, or generally through the Internet, to (a) any Customers, (b) any prospective Customers from whom Personal Shopper has solicited business on the Company’s behalf, or (c) any other persons or entities who refer potential Customers in need of the types of services sold or marketed by the Company, whom have become known to Personal Shopper as a result of the performance of its obligations hereunder.
8.4. Non-Solicitation of Employees and Personal Shoppers. Whereas Personal Shopper understands and agrees that the Company has an interest in retaining the loyalty, fidelity, and continued employment of its current employees and agents, the Personal Shopper warrants, covenants, and agrees that, while providing services on behalf of the Company under this Agreement and for a period of two (2) years following the date of termination of such relationship, for any reason, whether voluntarily or involuntarily, Personal Shopper will not, directly or indirectly, attempt to induce, solicit, offer, or recruit, or assist in any attempt to induce, solicit, offer, or recruit, any employee or independent contractor of the Company to terminate or alter its relationship with the Company or to become associated with any other person or entity, including, but not limited to, any competitive business, whether as an employee, independent contractor, agent, consultant, advisor, investor, partner, or otherwise.
8.5. Enforcement. In furtherance and not in limitation of the foregoing, should any durational or geographical restriction or restriction on business activities covered under this Agreement be found by any court of competent jurisdiction to be overly broad, the Parties intend that such court will enforce this Agreement in any less broad manner the court may find appropriate by construing such overly broad provisions to cover only that duration, extent, or activity which may be enforceable. The Parties acknowledge the uncertainty of the law in this respect and expressly agree that this Agreement shall be given the construction that renders its provisions valid and enforceable to the maximum extent permitted by law.
8.6. Reasonable Restriction. Personal Shopper acknowledges and agrees that the periods of restriction and the breadth of service and geographic areas of restrictions imposed by this Agreement, if any, including, but not limited to the non-solicitation and confidentiality covenants, are fair and reasonably required for the protection of legitimate business interests of the Company.
8.7. Notwithstanding any statute to the contrary, the Personal Shopper shall not be entitled to an award of attorney fees and costs if the Personal Shopper prevails in any action to enforce Sections 6, 7, 8 of this Agreement.
9. Independent Contractor Relationship. Nothing under this Agreement shall be construed as creating any partnership, joint venture, or agency between the Parties. Personal Shopper will act solely as an independent contractor/1099 agent and, as such, is not authorized to bind the Company to third parties or Customers. No federal, state, or local taxes of any kind shall be withheld or paid by Company on behalf of Personal Shopper in connection with payments made hereunder by the Company. Personal Shopper will perform the Samyata Services described in this Agreement independently and will determine, in his/her/its sole discretion, the manner, time, place, and means by which those services are accomplished as well as what services must be accomplished, subject to the requirement that Personal Shopper will at all times comply with applicable law and general industry guidelines. Company has no right or authority to control the manner or means by which the Samyata Services are accomplished. Personal Shopper assumes full responsibility for his/her/its actions while performing services under this Agreement.
10. Indemnity. The Personal Shopper will indemnify, defend, and hold the Company, its officers, shareholders, directors, agents, employees, and agents harmless from and against any and all claims, liabilities, losses, damages, costs and expenses (including, without limitation, attorney fees and expenses) arising out of or relating to the foregoing responsibility of the Personal Shopper. Personal Shopper is not an employee of the Company and is not entitled to participate in any of the Company’s employee benefit plans, without exception.
11. Intellectual Property. “Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, Company grants no right or license to Personal Shopper by implication, estoppel or otherwise to any Intellectual Property Rights of the Company. Each Party shall retain all ownership rights, title, and interest in and to its own products and services and all intellectual property rights therein, subject only to the rights specifically granted herein. Company (and not Personal Shopper) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for its Intellectual Property Right. Personal Shopper will cooperate with Company in pursuing such protection, including without limitation executing and delivering to Company such instruments as may be required to register or perfect Company’s interests in any Intellectual Property Rights and any assignments thereof. Personal Shopper shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from Company in connection with this Agreement.
12.1 Injunctive Relief. The Parties recognize that irreparable injury will result to the Company and its business and property if Personal Shopper breaches the covenants contained in Sections 6, 7, 8, and 9 of this Agreement. It is agreed that if Personal Shopper breaches any of these covenants, in part or in whole, Company shall be entitled to an injunction, without posting a bond, to restrain further breach of those covenants by Personal Shopper or any of Personal Shopper's employees or sub-agents, or any persons acting for or with Personal Shopper, in addition to any other remedies Company may have.
12.2 Cumulative Remedies. All provisions of sections of this Agreement are cumulative. Compliance with these sections is a condition precedent to Company’s obligation to make payments to Personal Shopper whether under this Agreement or otherwise. Nothing in this Agreement prohibits the Company from pursuing any other remedies available to it for a breach or threatened breach of this Agreement.
13. Termination of Relationship. Company may terminate this Agreement, at any time, upon written notice to Personal Shopper. Upon termination of this Agreement, neither Party will have any further obligations under this Agreement, except for the sections that specifically set forth survival following termination of this Agreement. Each Party will remain liable and responsible to the other for all prior obligations and for all acts and omissions of such Party, its agents, or its employees, prior to termination.
14. Indemnification and Set Off. Personal Shopper will indemnify and hold harmless the Company and its shareholders, officers, directors, affiliates, independent agents, and employees against any and all liability, damages, losses, costs or expenses, or judgments resulting from or related to any third party claims made or suits brought against the Company and its shareholders, officers, directors, affiliates, independent agents, and employees that arise out of (i) the Samyata Services provided by Personal Shopper under this Agreement, (ii) the misstatement or untrue nature of any of the warranties and representations made by Personal Shopper, (iii) Personal Shopper’s breach of this Agreement’s terms and conditions, or (iv) due to any of Personal Shopper’s acts or omissions or due to Personal Shopper’s negligence. Company shall set off any losses related to Personal Shopper's willful, dishonest, or negligent act in its performance hereunder ("Losses") from any payments due to Personal Shopper, and Personal Shopper expressly authorizes Company to collect via the Automated Clearing House ("ACH") any amounts owed to Company under this Agreement or any other agreement between the Parties, including Losses, from the bank account provided by Personal Shopper for this purpose and to receive payments hereunder.
15. Binding Effect. Each Party and each individual signing on behalf of each Party, represents and warrants that it has full power and authority to enter into this Agreement, and that no further approvals or consents are required. Each Party represents that they have had an opportunity to review this Agreement; that they understand its terms; that if they have reviewed the Agreement with an attorney, they are relying on the legal advice of said attorney; and that they voluntarily accept these terms. This Agreement is the legal, valid, and binding obligation of the Parties, enforceable against each Party and its assigns, officers, directors, agents, employees, independent contractors, and shareholders in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, or other similar laws of general application or by general principles of equity. This Agreement sets forth the final, entire understanding and agreement of the Parties and incorporates all of the agreed upon terms, covenants, and conditions. This Agreement can only be modified or amended in writing, signed by both Parties. If any part of this Agreement is determined by a court of competent jurisdiction to be unenforceable, all other parts of this Agreement will remain in full force and effect.
16. BINDING ARBITRATION. ANY DISPUTE OR CLAIM BETWEEN THE PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE FULLY AND FINALLY RESOLVED BY BINDING ARBITRATION IN CHICAGO ILLINOIS IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES AND PRACTICES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) FROM TIME TO TIME IN FORCE AND EFFECT. THIS AGREEMENT TO ARBITRATE SHALL BE SPECIFICALLY ENFORCEABLE AND IS THE EXCLUSIVE REMEDY FOR THE RESOLUTION OF SUCH DISPUTES UNDER THIS AGREEMENT. THERE SHALL BE A SINGLE ARBITRATOR, WHO MUST BE (I) A LAWYER ENGAGED FULL-TIME IN THE PRACTICE OF LAW AND A MEMBER IN GOOD STANDING OF THE STATE BAR OF ILLINOIS AND (II) ON THE AAA REGISTER OF ARBITRATORS. WITHIN THIRTY (30) DAYS OF THE CONCLUSION OF THE ARBITRATION HEARING, THE ARBITRATOR SHALL PREPARE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW. JUDGMENT ON THE WRITTEN AWARD MAY BE ENTERED AND ENFORCED IN ANY STATE OR FEDERAL COURT LOCATED IN ILLINOIS. THE PARTIES HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS SO SELECTED, TO THE EXCLUSION OF ANY OTHER COURT WHICH MIGHT HAVE HAD JURISDICTION APART FROM THIS SECTION 16, WAIVE ANY DEFENSE OF LACK OF IN PERSONAM JURISDICTION OF SUCH COURTS AND AGREE THAT SERVICE OF PROCESS IN ANY ACTION BEFORE SUCH COURTS MAY BE MADE BY MAILING IT TO THE PARTY TO BE SERVED AT THE ADDRESS PROVIDED HEREIN. IT IS MUTUALLY AGREED THAT THE WRITTEN DECISION OF THE ARBITRATOR SHALL BE VALID, BINDING, FINAL, AND NON-APPEALABLE; PROVIDED HOWEVER, THAT THE PARTIES HERETO AGREE THAT THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO AWARD PUNITIVE DAMAGES AGAINST ANY PARTY TO SUCH ARBITRATION. THE ARBITRATOR SHALL REQUIRE THE NON-PREVAILING PARTY TO PAY THE ARBITRATOR’S FULL FEES AND EXPENSES OR, IF IN THE ARBITRATOR’S OPINION THERE IS NO PREVAILING PARTY, THE ARBITRATOR’S FEES AND EXPENSES WILL BE BORNE EQUALLY BY THE PARTIES THERETO. EACH OF THE PARTIES HERETO FURTHER AGREES THAT IT WILL NOT BECOME A MEMBER OF ANY CLASS-WIDE LITIGATION OR ARBITRATION AND WILL NOT INITIATE ANY CLASS ACTION LITIGATION OR ARBITRATION AGAINST THE OTHER PARTY. FURTHER, THE PARTIES AGREE THAT THEY WILL NOT ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OF ANY GROUP, CLASS, OR OTHERWISE SIMILARLY SITUATED INDIVIDUAL OR ENTITY.
17. Headings. The headings in this Agreement are for convenience only and are not intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of this Agreement nor the meaning of any of its provisions. Further, the headings contained in this Agreement are for reference purposes only and shall not be used in construing this Agreement. This Agreement shall be given a fair and reasonable construction in accordance with the intention of the Parties and without regard to the identity of its drafter.
18. Assignment. The Parties may not assign, transfer, pledge, encumber, or sell their rights under this Agreement, in whole or in part, without the other’s prior signed written consent, which that Party may grant at its sole discretion. However, no such consent shall be required for Company’s assignment or transfer of this Agreement in connection with a sale or transfer of all or substantially all of the business assets of the Company.
19. Waiver and No-Waiver. Failure of either Party to insist upon the strict performance of any of the Agreement’s terms and conditions, or failure to exercise any rights or remedies provided in this Agreement or by law will not release the other Party of any of its obligations under the Agreement. An oral modification or rescission of this Agreement by either Party will not operate as a waiver of any of the Agreement’s terms. No waiver by either Party of any breach, default, or violation of this Agreement’s terms and conditions will constitute a waiver of any subsequent breach, default, or violation of the Agreement’s terms and conditions. This section shall apply despite any law or theory that either Party’s waiver of his/her/its rights under the Agreement amounts to a waiver of this section, and either Party expressly reserves the right to enforce any section at any time this Agreement is in effect and for the period of time that certain sections indicate survival after termination.
20. Notices: Written notice shall be provided to Company as follows: All notice shall be mailed to 200 E. 5th Avenue, Suite #121DE, Naperville IL 60563, United States. In addition, You shall send all notices to Bodaty via email with receipt acknowledged to firstname.lastname@example.org.
21.1. Geo-Location and In-Store Geo-Location: You can prevent your mobile Device from sharing your Geo-Location by choosing the don’t allow button within the Applications or you can prevent it by disabling the location/Geo-Location sharing setting on your Device settings.
21.2. Biometric Data: Bodaty only uses such products to verify your identity via third parties, such as Apple or Google through your Device. You can opt out of using your Biometric data at any time by adjusting the settings on your Device, or in your account settings in the respective App.