Independent Contractor Agreement
This Independent Contractor Agreement (the “AGREEMENT”) is made and entered into by and between you, the undersigned contractor (the “CONTRACTOR”), an independent contractor engaged in the business of performing the HVAC, plumbing, electrical, roofing, home repair, and other similar services contemplated by this AGREEMENT, and fyxify, LLC (“FYXIFY”). CONTRACTOR may enter this AGREEMENT either as an individual or as a corporate or business entity. This AGREEMENT will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any services under this AGREEMENT.
In consideration of the mutual promises described within this AGREEMENT, FYXIFY and CONTRACTOR (collectively “the parties”) agree as follows:
1. The SOFTWARE. FYXIFY is a company that provides a platform that connects third-party contractors and/or other businesses with consumers using web-based technology along with various other tools and services, including tools to estimate the costs to perform any services, accomplish invoicing, communicate with consumers, retain and maintain consumer information for CONTRACTOR’s later use, perform certain diagnostic tests, and undertake certain training opportunities, and any other tools or services developed by FYXIFY from time to time (collectively the “Platform Services”). FYXIFY’s software application and platform permits registered consumers to place order opportunities with third-party contractors for HVAC, plumbing, electrical, roofing, home repair, and other similar services (each of these is referred to as a “Service Opportunity”). Once such order opportunities are made, the software notifies contractors that such a Service Opportunity is available, which CONTRACTOR may accept and agree to complete (each of which accepted Service Opportunity is referred to as a “Contracted Service”). FYXIFY is not a HVAC, plumbing, electrical, roofing, home repair, or similar contractor business. Additionally, FYXIFY makes no claim of ownership to any consumer data obtained because of the services performed by the CONTRACTOR within their pre-existing customer database. During the subscription period, FYXIFY does reserve the right to use consumer data to enhance the consumer experience which include but are not limited to, marketing messages, follow-up communications and notifications.
2. Contractor’s Representations. CONTRACTOR warrants and represents that CONTRACTOR is an independent provider of HVAC, plumbing, electrical, roofing, home repair, and other similar services, authorized to conduct the HVAC, plumbing, electrical, roofing, home repair, and other similar services contemplated by this AGREEMENT in the geographic location(s) in which CONTRACTOR operates. CONTRACTOR also warrants and represents that CONTRACTOR satisfies all legal requirements necessary to perform any of the services contemplated by this AGREEMENT.
CONTRACTOR further warrants and represents that CONTRACTOR possesses all equipment and personnel necessary to perform the HVAC, plumbing, electrical, roofing, home repair, and other similar services contemplated by this AGREEMENT in accordance with applicable laws. CONTRACTOR desires to enter into this AGREEMENT for the right to receive service opportunities made available through FYXIFY’s platform as per the PLATFORM SERVICES.
3. Contractor’s Operations. CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. CONTRACTOR understands and expressly agrees that FYXIFY shall have no right to, and shall not, control the manner, method, or means CONTRACTOR uses to perform the Contracted Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of performing any of the HVAC, plumbing, electrical, roofing, or home repairs, or similar contractor matters in a manner that is safe in accordance with applicable federal, state, or local requirements and any generally accepted or recommended practices within the applicable industry.
Further still, CONTRACTOR also understands and expressly agrees that CONTRACTOR is not an employee of FYXIFY and that CONTRACTOR is providing HVAC, plumbing, electrical, roofing, home repair, and other similar services on behalf of CONTRACTOR and CONTRACTOR’s own business, not on behalf of FYXIFY. CONTRACTOR understands that:
(i) CONTRACTOR is free to select those times CONTRACTOR wishes to be available on the platform to receive Service Opportunities;
(ii) CONTRACTOR is free to accept or reject the Service Opportunities transmitted through the FYXIFY platform by consumers, and can make such decisions to maximize CONTRACTOR’s own opportunity to profit; and,
(iii) CONTRACTOR has the sole right to control the manner in which Contracted Services are performed and the means by which those Contracted Services are completed.
As an independent business enterprise, CONTRACTOR retains the right to perform services (whether HVAC, plumbing, electrical, roofing, home repair, and other similar services or other services) for others and to hold CONTRACTOR out to the general public as a separately established business. The parties recognize that they are or may be engaged in similar arrangements with others and nothing in this AGREEMENT shall prevent CONTRACTOR or FYXIFY from doing business with others. FYXIFY does not have the right to restrict CONTRACTOR from performing services for other businesses, customers or consumers at any time, even if such business directly competes with FYXIFY, and even during the time CONTRACTOR is logged into the FYXIFY platform. Notwithstanding the foregoing, the Parties agree that should CONTRACTOR learn of any business opportunities or begin or enter into a relationship with any consumers due to CONTRACTOR’s use of the FYXIFY platform, CONTRACTOR shall owe to FYXIFY a fee as pursuant to Provision 6 below.
CONTRACTOR’s right to compete with FYXIFY, or perform services for business that compete with FYXIFY, will survive even after termination of this AGREEMENT. Moreover, CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from FYXIFY as a condition of doing business with FYXIFY or entering into this AGREEMENT.
In exchange for the promises contained in this AGREEMENT, CONTRACTOR shall have the right and obligation to perform the “Contracted Services.” CONTRACTOR shall have no obligation to accept or perform any particular “Service Opportunity” offered by FYXIFY’s platform (as defined in this AGREEMENT below). However, once a Service Opportunity is accepted, CONTRACTOR shall be contractually bound to complete the Contracted Services in accordance with all consumer specifications and the terms laid out in this AGREEMENT.
4. Contracted Services. From time to time, the FYXIFY platform will notify CONTRACTOR of a Service Opportunity. For each Service Opportunity accepted by CONTRACTOR such that it becomes a Contracted Service, CONTRACTOR agrees, when deciding the manner and employing the means to accomplish each Contracted Service, CONTRACTOR shall do so in a safe and timely fashion. CONTRACTOR understands and agrees that the parameters of each Contracted Service are established by the consumer—not FYXIFY—and represent the end result desired, not the means by which CONTRACTOR is to accomplish the result. CONTRACTOR has the right to cancel, from time to time, a Contracted Service when, in the exercise of CONTRACTOR’s reasonable discretion and business judgment, it is appropriate to do so. Notwithstanding the foregoing, CONTRACTOR agrees to be subject to and maintain the customer rating and a completion rate requirements found fyxify.com as of the date this AGREEMENT becomes effective and as may be updated from time to time. Failure to satisfy this obligation constitutes a material breach of this AGREEMENT, and FYXIFY shall have the right to terminate this AGREEMENT and/or deactivate CONTRACTOR’s account.
CONTRACTOR acknowledges that FYXIFY has discretion as to which, if any, Service Opportunity to offer, just as CONTRACTOR has the discretion whether and to what extent to accept any specific Service Opportunity.
CONTRACTOR authorizes FYXIFY, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or other businesses to assist CONTRACTOR, to the extent permitted by CONTRACTOR, in CONTRACTOR’s performance of the Contracted Services. However, under no circumstances shall FYXIFY be authorized to control the manner or means by which CONTRACTOR performs HVAC, plumbing, electrical, roofing, home repair, and other similar services. This includes, but is not limited to, the following:
· FYXIFY does not require any specific type, or quality, of CONTRACTOR’s choice of materials, components, equipment, elements, goods, machinery, supplies, or other thing used to perform the Contracted Services.
· CONTRACTOR does not have a supervisor or any individual at FYXIFY to whom they report.
· CONTRACTOR does not receive regular performance evaluations by FYXIFY.
· CONTRACTOR is not required to use any signage or other designation of FYXIFY on his or her vehicle or person at any point in their use of the platform to perform the Contracted Services.
· FYXIFY has no control over CONTRACTOR’s personal appearance.
· FYXIFY has no control over CONTRACTOR’s tools, equipment, or materials—except to the extent that CONTRACTOR has agreed to perform the Contracted Services in a manner that is safe in accordance with applicable federal, state, or local requirements and any generally accepted or recommended practices within the applicable industry.
5. Relationship of the Parties. The parties acknowledge and agree that this AGREEMENT is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this AGREEMENT to create a contractor relationship between FYXIFY and CONTRACTOR and not one of joint venture, partnership, agency, or franchise. The parties acknowledge and agree that CONTRACTOR will not receive any rights as a franchisee of FYXIFY or any other franchise rights or interests in connection with this AGREEMENT. The parties are not employees, agents, joint venturers, partners, or franchisees of each other for any purpose. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this AGREEMENT.
The parties further acknowledge and agree that—to the extent that there are any provisions of the AGREEMENT reserving ultimate authority in FYXIFY—such provisions have been inserted solely for the safety of consumers and other CONTRACTORS using the FYXIFY platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof. Regardless of such provisions, FYXIFY shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by CONTRACTOR.
If any provision of this Agreement is deemed to create a franchise relationship between the parties, then FYXIFY may, at its option, either immediately terminate this AGREEMENT, or require the parties to negotiate in good faith to modify this AGREEMENT so as to effect the parties' original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as a service agreement and not a franchise agreement.
6. Payment. To compensate FYXIFY for the use of its operating software “portyl”, CONTRACTOR agrees to a subscription agreement monthly. The fees associated with the subscription are to be paid on the monthly due date. To fail to do so will be considered a breach of this agreement. FYXIFY reserves the right to increase the monthly subscription fee as it sees fit, however notice shall be given to the CONTRACTOR 30 days in advance of any increase. CONTRACTOR acknowledges and agrees that the platform shall process all payments from consumers through an authorized third-party payment service provider, which CONTRACTOR hereby designates as its agent for processing payments contemplated under this AGREEMENT. Further, CONTRACTOR warrants and agrees that it does and will direct such third-party service provider to issue FYXIFY’s portion of fees immediately upon the third-party service provider’s receipt.
CONTRACTOR understands and agrees that a failure to make timely payment shall be deemed a material breach of this AGREEMENT and shall result in the termination of the AGREEMENT and the loss of CONTRACTOR’s right to receive Service Opportunities. The parties further agree that the obligations to make payment shall survive any termination of this Agreement.
7. Equipment, Materials, and Expenses. CONTRACTOR represents that CONTRACTOR has or can lawfully acquire all tools, equipment, parts, materials, components, vehicles, machinery, or other items necessary for performing Contracted Services, and CONTRACTOR is solely responsible for ensuring that all such tools, equipment, materials, components, vehicles, machinery, or other items used conform to all laws pertaining to safety, equipment, inspection, and operational capability. CONTRACTOR agrees that CONTRACTOR is responsible for all costs and expenses arising from CONTRACTOR’s performance of Contracted Services, including, but not limited to, costs related to CONTRACTOR’s Personnel (defined below), tools, equipment, materials, components, vehicles, machinery, or other items necessary for performing Contracted Services. To the extent that the consumer agrees, CONTRACTOR may charge consumer the cost of any parts, materials, components, or other items installed or incorporated into the consumer’s property during the Contracted Services; however, such costs may not exceed fifteen percent (15%) of the estimate provided consumers through the Platform Services. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to its Equipment.
8. Personnel. In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the FYXIFY platform, pass a background check administered by a third-party vendor, subject to CONTRACTOR’s lawful consent. CONTRACTOR is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this AGREEMENT, hire or engage others (as employees or subcontractors of CONTRACTOR) to perform all or some of the Contracted Services, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, the background check requirements that CONTRACTOR must meet in order to perform Contracted Services. When CONTRACTOR furnishes CONTRACTOR’s own employees or subcontractors (collectively “Personnel”), CONTRACTOR shall be solely responsible for the direction and control of the Personnel it uses to perform all Contracted Services; however, CONTRACTOR warrants and agrees that any such Personnel shall have the necessary training, experience, and skills needed to satisfactorily complete the Contracted Services.
CONTRACTOR assumes full and sole responsibility for the payment of all amounts due to CONTRACTOR’s own Personnel for work performed in relation to this AGREEMENT, including all wages, benefits and expenses, if any, and for all required state and federal income tax withholdings, unemployment insurance contributions, and social security taxes as to CONTRACTOR and all Personnel employed by CONTRACTOR in the performance of Contracted Services under this AGREEMENT. FYXIFY shall have no responsibility for any wages, benefits, expenses, or other payments due CONTRACTOR’s Personnel, nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to CONTRACTOR or CONTRACTOR’s own Personnel. Neither CONTRACTOR nor CONTRACTOR’s own Personnel shall receive any wages, including vacation pay or holiday pay, from FYXIFY, nor shall they participate in or receive any other benefits, if any, available to FYXIFY’s employees.
Unless mandated by law, FYXIFY shall have no authority to withhold state or federal income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state or federal tax on behalf of CONTRACTOR or CONTRACTOR’s own Personnel.
CONTRACTOR and CONTRACTOR’s own Personnel shall not be required to wear a uniform or other clothing of any type bearing FYXIFY’s name or logo. In the event that CONTRACTOR or Personnel do choose to wear apparel that bears FYXIFY’s name or logo, CONTRACTOR agrees that such action shall be done in compliance with the “Fyxify Name, Marks, and Logo” provision below.
If CONTRACTOR uses the services of any Personnel to perform the Contracted Services, CONTRACTOR’s Personnel must satisfy and comply with all of the terms of this AGREEMENT, which CONTRACTOR must make enforceable by written agreement between CONTRACTOR and such Personnel. A copy of such written agreement must be provided to FYXIFY at least seven (7) days in advance of such Personnel performing the Contracted Services. No Personnel may perform any Contracted Services unless and until they have been enrolled and approved by the FYXIFY administrative staff. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR’s compliance with the terms of this AGREEMENT.
9. Insurance. CONTRACTOR agrees, as a condition of doing business with FYXIFY, that during the term of this AGREEMENT, CONTRACTOR will maintain current insurance, at CONTRACTOR’s sole expense, the following:
(i) commercial general liability insurance with limits of liability equal to at least $500,000 per occurrence and $1,000,000 in the general aggregate coverage that also includes personal and advertising injury liability coverage with sub-limits of liability equal to at least $500,000 and products and completed operations hazard or PCOH coverage with sub-limits of liability equal to at least $500,000 (or such other amounts approved by FYXIFY in writing);
(ii) if CONTRACTOR utilizes any Personnel, workers’ compensation or occupational accident insurance as required by applicable state law, that includes—but is not limited to—coverage for all costs, benefits, and liabilities that may accrue in favor any person employed by CONTRACTOR in all states where CONTRACTOR performs any Contracted Services;
(iii) if CONTRACTOR utilizes any Personnel, employer’s liability or employment practices liability insurance or similar insurance with a limit of not less than $500,000 per occurrence and $1,000,000 in the general aggregate (or such other amounts approved by FYXIFY in writing);
(iv) automobile insurance with limits of liability equal to at least $500,000 per person and $1,000,000 per accident (or such other amounts approved by FYXIFY in writing); and,
(v) any other insurance as is appropriate for the Contracted Services being performed.
All such insurance shall be issued by insurance companies with a rating of A-/VII or better in the current Best’s Insurance Reports published by A.M. Best Company, Inc. CONTRACTOR shall ensure that FYXIFY, along with all parent, subsidiary, and/or affiliated or related companies or individuals, as well as its and their past and present successors, assigns, officers, owners, directors, members, managers, agents, representatives, employees, and attorneys (collectively the “FYXIFY Parties”), are named as an “additional insureds” under CONTRACTOR’s policies. Furthermore, CONTRACTOR agrees to deliver to the FYXIFY Parties, upon request, current certificates of insurance as proof of coverage. CONTRACTOR agrees to provide updated certificates each time CONTRACTOR purchases, renews, or alters CONTRACTOR’s insurance coverage. Moreover, such coverage limits will not be reduced below the minimum amounts and such policies will not be cancelled or allowed to lapse without at least 30 days’ prior written notice from the insurance carrier to the FYXIFY Parties as additional insureds. It is further warranted and agreed that the provision of coverage under the policies shall be provided, to the extent possible, on an “occurrence” basis with standard separation of insureds provisions and/or an endorsement for cross-liability coverage; and such insurance shall be provided on a primary coverage basis without any right of contribution from any insurance of the FYXIFY Parties with a waiver by the insurer(s) of any right of subrogation against the FYXIFY Parties and their respective insurers, and with the FYXIFY Parties retaining the right to select defense counsel of their choosing who shall not be required to accept panel rates but which shall still be considered customary and reasonable expenses in the investigation or defense of a claim or “suit” or litigation.
CONTRACTOR agrees that CONTRACTOR will maintain sufficient insurance to cover any risks or claims arising out of or related to CONTRACTOR’S relationship with FYXIFY, including workers’ compensation insurance where required by law. CONTRACTOR acknowledges and understands that CONTRACTOR will not be eligible for workers’ compensation benefits through FYXIFY and is instead responsible for maintaining CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance.
CONTRACTOR may satisfy the above minimum limits by any combination of primary liability and umbrella excess liability coverage that results in the same protection to CONTRACTOR and the FYXIFY Parties. CONTRACTOR acknowledges that failure to secure or maintain satisfactory insurance coverage shall be deemed a material breach of this AGREEMENT and shall result in the termination of the AGREEMENT and the loss of CONTRACTOR’s right to receive Service Opportunities. The parties further acknowledge and agree that the terms, conditions, and requirements under this provision shall survive any termination of this Agreement.
10. Indemnity. Notwithstanding the insurance agreed to in the proceeding paragraph, CONTRACTOR agrees to indemnify, defend, hold harmless and assume the liability of the FYXIFY Parties from any and all claims, demands, causes of actions, suits, damages, losses, liabilities, expenses, fees, court costs, attorney’s fees, judgments, fines, or penalties arising directly or indirectly from, as a result of or in connection with, the actions or inactions of CONTRACTOR and/or any Personnel arising from the performance of any services under this AGREEMENT, including for any alleged or actual negligence, gross negligence, or intentional conduct and even if it directly or indirectly leads to any personal injury or death to any person (including to CONTRACTOR and/or any Personnel), as well as any liability arising from CONTRACTOR’s failure to comply with the terms of this AGREEMENT. Without limiting the foregoing, CONTRACTOR’s obligations to indemnify, defend, hold harmless and assume the liability of the FYXIFY Parties shall include the cost of defense, including attorneys’ fees, as well as the payment of any final judgment rendered against or settlement agreed upon by the FYXIFY Parties.
Furthermore, CONTRACTOR agrees to indemnify, defend, hold harmless and assume the liability of the FYXIFY Parties from any and all tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to CONTRACTOR and CONTRACTOR’s Personnel.
Additionally, CONTRACTOR shall be responsible for, indemnify, defend, hold harmless and assume the liability of the FYXIFY Parties from all costs of CONTRACTOR’s business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
In any such matter for which defense is owed, CONTRACTOR agrees that the FYXIFY Parties shall retain the right to select defense counsel of their own choosing, and the right to defense shall arise upon the first notice of any claim or loss of any kind so indemnified, and the obligation to provide for any defense shall not be contingent upon any final, non-appealable judgment by a court of competent jurisdiction. CONTRACTOR represents and warrants that it knowingly and affirmatively agrees to the aforementioned indemnity, defense, hold harmless, and assumption of liability. The parties further acknowledge and agree that the terms, conditions, and requirements under this provision shall survive any termination of this Agreement.
11. Litigation Class Action and Collective Action Waiver. To the extent allowed by applicable law, CONTRACTOR agrees that any proceeding to litigate in court any dispute arising out of or relating to this AGREEMENT, for any reason, will be conducted solely on an individual basis, and CONTRACTOR agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which CONTRACTOR acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). CONTRACTOR further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this AGREEMENT shall remain in full force and effect.
12. Termination of Agreement. This Agreement may be terminated or CONTRACTOR’s platform account deactivated by: (a) CONTRACTOR, without cause, upon seven (7) days’ written notice to FYXIFY; (b) either party immediately, without notice, upon the other party’s material breach of this Agreement; (c) FYXIFY immediately, without notice, for any of the reasons set forth in the FYXIFY Deactivation Policy; or (d) FYXIFY immediately, without notice, if it has the belief that such action is necessary to protect it, its platform, its technology, or third-parties. If CONTRACTOR initiates a termination of this Agreement under (a) or (b) without a corresponding deactivation of its platform account, FYXIFY may immediately, without notice, deactivate the platform account. If FYXIFY initiates a deactivation of CONTRACTOR’s platform account without a corresponding termination of this Agreement, FYXIFY will attempt to provide reasonable notice of the reasons for any actual or future deactivation and an opportunity to cure the issue to FYXIFY’s sole satisfaction before a permanent termination of the Agreement.
Notwithstanding any other provision in this AGREEMENT, FYXIFY reserves the right to modify, alter, amend, or change the Deactivation Policy if, in FYXIFY’s good faith and reasonable discretion, it is necessary to do so for the safe or effective operation of the FYXIFY platform. FYXIFY shall provide notice of any such changes to CONTRACTOR via e-mail. Changes to the Deactivation Policy shall be effective and binding on the parties upon CONTRACTOR’s continued use of the FYXIFY platform following such modifications, alterations, amendments, or changes. Nothing will prevent CONTRACTOR from attempting to negotiate an exemption from any modification to the Deactivation Policy.
Additionally, the parties acknowledge and agree that Provisions 6-7 and 9-16 shall survive any termination or expiration of this Agreement.
13. FYXIFY Name, Marks, and Logos. CONTRACTOR acknowledges and agrees FYXIFY is the sole owner of logo, name, trade name, service mark, trademark, simulation, abbreviation or adaption of the same, for FYXIFY or the Application. CONTRACTOR further agrees that it shall not publicly use, for publicity, promoting, marketing, contracting, or otherwise, any logo, name, trade name, service mark, trademark, simulation, abbreviation or adaption of the same owned by FYXIFY without FYXIFY’s express written consent, which FYXIFY may withhold at its sole discretion. Without limiting the foregoing, and by way of examples only, CONTRACTOR agrees that it shall not place or affix FYXIFY’s name or logo onto any uniforms or clothing or onto any contract documents submitted to any consumer, governmental agency, or third-party without FYXIFY’s advance and express written consent.
14. Miscellaneous Provisions. The choice of law for interpretation of this AGREEMENT, and the right of the parties hereunder, as well as substantive interpretation of claims asserted under the AGREEMENT, shall be the rules of law of Florida.
Captions appearing in this AGREEMENT are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this AGREEMENT. This AGREEMENT may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided, however, that FYXIFY may assign its rights and obligations under this AGREEMENT to an affiliate of FYXIFY or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this AGREEMENT to FYXIFY shall be deemed to include such successor(s).
To the extent FYXIFY’s consumer facing Terms and Conditions (or updated consumer facing Terms and Conditions, if applicable) is inconsistent or conflicts with this AGREEMENT, this AGREEMENT controls.
CONTRACTOR agrees to notify FYXIFY in writing any breach or perceived breach of this AGREEMENT, of any claim arising out of or related to this AGREEMENT, or of any claim that CONTRACTOR’s services or scope of work differ in any way from what is contemplated in this AGREEMENT. The failure of FYXIFY or CONTRACTOR in any instance to insist upon a strict performance of the terms of this AGREEMENT or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect. Unless otherwise stated, if any part of this AGREEMENT is declared unlawful or unenforceable, the remainder of this AGREEMENT shall remain in full force and effect.
This AGREEMENT shall constitute the entire agreement and understanding between the parties with respect to the subject matter of this AGREEMENT and shall not be modified, altered, changed or amended in any respect, unless in writing and signed by both parties. Before accepting any modifications, alterations, changes or amendments, CONTRACTOR shall have the right to discuss any proposed changes with FYXIFY and consider whether to continue CONTRACTOR’s own contractual relationship with FYXIFY. This AGREEMENT supersedes any prior contract between the parties.