In reviewVersion 0.1.0-draft · DRAFT — not in force

DRAFT FOR LEGAL REVIEW — NOT IN FORCE. Prepared by a non-lawyer against the system as built, for the reviewer to correct. Placeholders in [SQUARE BRACKETS] are decisions, not omissions — see legal/README.md.

Independent Contractor Agreement

Between: Tauranga Food Limited, NZBN 9429046588135, of 70 Tynan Street, Te Puke 3119 ("we", "us") — which operates the Kiwi Eats delivery service.

And: the person named in the Kiwi Eats Driver app account accepting this agreement ("you").

Effective: the date you accept this agreement in the app.

1. What this is

You will accept and complete food delivery jobs that we offer you through the Kiwi Eats Driver app. You do this as an independent contractor running your own business — not as our employee.

⚠ REVIEWER — this is the highest-risk clause in the bundle. In New Zealand the label the parties use does not decide the question; s6 of the Employment Relations Act 2000 requires the real nature of the relationship to be determined, and a court will look at what actually happens. The terms in clauses 2 and 3 are drafted to reflect the real design of the system (no set hours, free declines, no exclusivity, own vehicle), and the product deliberately has no penalties switched on. Please advise whether this holds, and what would have to change if it does not.

2. You are in business on your own account

You confirm, and we agree, that:

• You choose when you work. There are no rostered hours, no shifts and no minimum commitment. You may go weeks without accepting a job.
• You choose which jobs to take. Every offer shows the fee and the drop-off suburb before you accept. You may decline any job for any reason, and declining costs you nothing — no penalty, no reduction in future offers, no effect on your standing.
• You are not exclusive to us. You may drive for anyone else, including our competitors, at any time, including on the same day.
• You supply your own equipment — vehicle, fuel, phone and data (clause 6).
• You are responsible for your own tax and ACC (clause 8).
• You may not sub-contract a delivery without our written agreement. This one restriction exists because we must know who is holding a customer's food and, on a cash order, the store's money — not to control how you work.

3. How jobs work

1. We offer you jobs for the stores you are set up to deliver for.
2. Each offer shows the fee we will pay you and the drop-off suburb. It does not show the customer's street address, name or phone number.
3. If you accept, the full delivery details are released to you.
4. You collect the order from the store and deliver it to the customer.
5. You may record a photo of where you left the order (clause 9).

Nothing obliges us to offer you any particular volume of work, and nothing obliges you to accept any.

4. What we pay you

Per delivery. There is no hourly rate, no retainer and no per-driver rate.

• The fee for a delivery is set when the job is created — before you see it — and is derived from the delivery fee the store charged its customer.
• The fee is fixed at that moment and cannot be changed afterwards, by us or by anyone else. The figure shown to you when you accept is the figure you are owed.
• Every offered job pays more than $0.00. A job that would pay nothing is never offered to anybody.
• The fee is inclusive of your costs — fuel, vehicle wear, phone and data.

Tips. Any tip a customer gives you is 100% yours. We take nothing from it.

When you are paid. [PAYMENT TERMS — see README decision 6]. At present the store settles with you directly, and the app reports what you have earned so both sides read the same figures. We are building a payment system that will change how you are paid; it will not change how much.

GST. If you are GST-registered you must tell us and provide your GST number, and the fees will be treated as GST-inclusive. [CONFIRM — accountant]

5. Cash you collect for the store

Some orders are paid in cash at the door.

• Cash you collect on a delivery is the store's money, not yours. You hold it for the store and must hand it over [WHEN — end of shift? next visit?].
• You must record in the app that you took it. That record is how the store and you agree what is owed, and it protects you as much as them.
• The amount you owe the store is separate from what we owe you. One is not set off against the other unless you agree in writing.
• Failing to hand over cash you collected is a serious breach and grounds for immediate termination under clause 11, without affecting any other remedy.

6. Your vehicle and equipment

You must, at all times while delivering:

• hold a current and valid New Zealand driver licence for the vehicle you use;
• use a vehicle that is registered, holds a current WoF/CoF, and is roadworthy;
• hold [INSURANCE LEVEL — README decision 3] insurance covering your use of that vehicle;
• supply your own phone and data.

You must tell us promptly if any of these stops being true. We may ask to see evidence of any of them, and may stop offering you work until you provide it.

7. Health and safety

⚠ REVIEWER: under the Health and Safety at Work Act 2015 a PCBU owes duties to contractors, not only employees, and those duties cannot be contracted out of. Please check this clause carefully — it is drafted to acknowledge rather than disclaim those duties.

We each have duties under the Health and Safety at Work Act 2015, and this agreement does not reduce them.

• Never take a risk for a delivery. Do not speed, do not use your phone while driving, and do not deliver if you are unfit to drive.
• If a situation feels unsafe, leave. Tell us afterwards. You will not be penalised, and no delivery is worth your safety.
• In an emergency call 111 first, and tell us second. The app puts that number one tap away for this reason.
• Tell us about any accident, injury or near-miss that happens while you are delivering.

8. Tax, ACC and your own affairs

You are responsible for:

• your own income tax, including provisional tax if it applies to you;
• your own ACC levies as a self-employed person;
• GST if you are registered;
• your own records.

We do not deduct PAYE, we do not pay you holiday pay or sick leave, and we do not provide KiwiSaver contributions — because you are not an employee. If you are unsure what this means for you, get your own advice; we cannot give it to you.

9. Customers' information, and photos

While delivering you will see customers' names, addresses and phone numbers.

• Use them only to complete that delivery.
• Do not keep them, copy them, photograph them, or contact a customer afterwards for any reason.
• The app shows you a customer's full address only once you have accepted, and your own trip history is scrubbed back to the suburb afterwards. Please do not work around that.

Proof-of-delivery photos. You may take a photo of where you left an order. It is optional — you can always complete a delivery without one — and it should show the package where you left it, not people, and not the inside of anyone's home. These photos are kept for 30 days and then deleted automatically. They are used only to resolve "it never arrived" disputes. Because a photo is information about the customer's property rather than about you, it stays our record to deal with under the Privacy Act, not yours to delete.

10. Our brand

You may say you deliver for Kiwi Eats. You may not hold yourself out as our employee, speak for us, take on obligations in our name, or use our branding on your vehicle or online without our written agreement.

11. Ending the agreement

• Either of us may end this agreement at any time by giving [7] days' notice, in writing or through the app. No reason is needed.
• Either of us may end it immediately for a serious breach — including failing to hand over cash you collected (clause 5), misusing customer information (clause 9), or driving without a valid licence or insurance (clause 6).
• Ending it does not affect fees already earned. We will pay you for every delivery you have completed, whatever the reason for ending.
• Clauses 9 (customer information), 12 (liability) and 14 (governing law) continue after it ends.

12. Liability

[REVIEWER — this clause needs your attention. The Consumer Guarantees Act and Fair Trading Act restrict what can be excluded, and their application to a B2B contract with an individual contractor is exactly the kind of question that should not be guessed at.]

Neither of us excludes liability that cannot lawfully be excluded.

13. Changes to this agreement

If we change this agreement we will show you the new version in the app and ask you to accept it. We will not treat your acceptance of this version as acceptance of a later one. If you do not accept a new version, this one continues to apply until either of us ends it under clause 11.

14. Governing law

New Zealand law applies, and the New Zealand courts have jurisdiction.

15. If something goes wrong between us

Talk to us first — most things are a misunderstanding and are fixed in a phone call. If that does not resolve it, we will both try mediation before either of us goes further. [REVIEWER — keep, sharpen, or remove?]

Accepted by: the account holder, in the Kiwi Eats Driver app. Recorded: the app records who accepted, which version, and when.