Services Agreement: Companies/Employers
Last update: August 02, 2020
Please note that Pulse Business Solutions Inc is a technology services provider that offers many different products and services. In particular, It has developed a software-based platform that assists authorized users in scheduling workers on an as-needed basis by, among other things, allowing such users to connect with independent contractors (each a “Contractor”) for various short term assignments. The platform may also be utilized to locate workers for longer-term engagements.
The terms and conditions set forth below, together with any additional terms set forth in an order form (“Order“) that references this agreement (collectively, this “Agreement“), govern your acquisition and use of the Pulse’s services you have requested (“Services“). By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an Order, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “Customer,” “you,” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the services.
Capitalized terms are defined as set forth below or elsewhere in this Agreement.
1.1 “Pulse App” means the mobile applications provided by Pulse that enable customers and Contractors to access the Pulse Platform for the purpose of submitting, seeking, receiving, and/or fulfilling on-demand requests for services.
1.2 “Pulse Data” means all data related to the access and use of the Pulse Platform hereunder, including all data related to Contractors and all data related to the provision of Services.
1.3 “Pulse Notice” means a notice created or provided by Pulse to one or more Contractors on the Pulse Platform or otherwise (whether by phone, push notifications, SMS text message notifications, in person or otherwise), which includes a description of a Work Request (including services to be provided by the Contractor), the date and time (as applicable) by which the Work Request must be completed, and the payment rate for the Contractor who performs the Work Request (the “Contractor Payment“).
1.4 “Pulse Platform” means the technology platform and software that enables users (including both Contractors and Customers) of Pulse’s web portal and/or the Pulse App to create, view, arrange, schedule, and/or submit Work Requests and Pulse Notices, and request and receive other related services.
1.5 “Work Request” means a request for work by a customer wishing to engage a Contractor. Work Requests may include a deadline for accepting the request; a description of the work being requested; the criteria for completing the work; compensation to be paid for completing the work; and any authorized expenses.
2. THE SERVICES
2.1 Grant of Access and Use. Subject to your compliance with this Agreement and payment of any applicable fees for the Services, Pulse grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable right to access and use the Pulse Platform (including installing and using the Pulse App on your mobile devices) and any content, information and related materials made available through the Pulse Platform, in order to: (i) submit Work Requests to schedule Contractors for various short term assignments; (ii) manage the work schedules of your workers up to the number of authorized workers and/or the number of authorized locations; and (iii) publish job postings to recruit, identify, and hire job seekers. All rights not expressly granted to you are reserved by Pulse, its affiliates, and their respective licensors.
2.2 Work Requests. Customer may submit a Work Request via the Pulse Platform or otherwise. Each such Work Request may be posted on the Pulse Platform (including on the Pulse App or web portal) and/or sent to Contractors as a Pulse Notice. Once you have been matched with a Contractor and have agreed upon the terms of a Work Request, the Work Request will become a “Services Engagement.” Pulse can reject any Work Request that is not appropriate or that violates the terms of this Agreement or Pulse’s policies.
2.3 Direct Hires. Customer may utilize the Pulse Platform to publish job openings to potential candidates. In the event you or someone acting on your behalf hires (including a full-time hire, part-time hire, independent contractor hire, intern hire, or any other such engagement) a job candidate identified via the Pulse Platform or a Contractor that has performed a Services Engagement for you, you agree to notify Pulse of such hire (each a “Direct Hire“). Any engagement where you provide compensation directly to a Contractor within twelve (12) months of the last Services Engagement performed for you by such Contractor shall be considered a Direct Hire regardless of whether the Contractor contacted you independently or in response to a public job posting. If you make a Direct Hire, you acknowledge and agree you must sign a contract directly with the job candidate. Upon request, Pulse may facilitate this process by sending the contract to the job candidate, but it is your responsibility to ensure it is signed and returned before the job candidate begins. You acknowledge and agree that, unless otherwise agreed in writing by Pulse, Pulse has no responsibility for making any payments to the job candidate and you are solely responsible for paying the agreed-upon compensation set forth in the contract directly to such job candidate. Although job openings posted in the Pulse Platform may include a job description, an estimate of the compensation, and other relevant details, the information provided by Pulse does not control. Rather, the terms and conditions contained in the contract between you and the job candidate shall control.
2.4 Accounts. In order to use most aspects of the Services, you must register for and maintain an active account in the Pulse Platform (“Account”). Account registration requires you to submit to Pulse certain personal information, such as your name, company name, street address, email address, and phone number, as well as a valid payment method. You agree to maintain accurate, complete, and up-to-date information in your Account, including billing information. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Services and the Pulse Platform. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. You will immediately notify Pulse of any actual or suspected breach or improper use or disclosure of your password.
2.5 Account Requirements and Conduct. You may not authorize third parties to use your Account without prior approval from Pulse. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services and you may only use the Services for lawful purposes. You will not use the Services to cause nuisance, annoyance, inconvenience, or property damage, whether to Pulse, a Contractor, or any other party.
2.6 Text Messaging, Network Access and Devices. By creating an Account, you agree that Pulse may send you informational text (SMS) messages as part of your use of the Pulse Platform, and that use of SMS may be necessary to utilize certain features of Services. You can cancel the SMS service at any time by replying “STOP” in the text message you received. It may take a few days for Pulse to process your request. You are responsible for obtaining the data network access necessary to use the Services and Pulse Platform. Your mobile network’s data and messaging rates and fees may apply if you access or use the Pulse Platform from a wireless-enabled device. You are responsible for acquiring and updating compatible devices necessary to access and use the Services and the Pulse Platform and any updates thereto. Pulse does not guarantee, warrant or represent that the Services, the Pulse Platform or any portion thereof will function on any particular device.
2.7 Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Pulse Platform; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Pulse Platform except as expressly permitted by Pulse; (iii) decompile, reverse engineer or disassemble the Pulse Platform except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services or Pulse Platform; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or Pulse Platform, or unduly burdening or hindering the operation and/or functionality of any aspect of the Services or Pulse Platform; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services, the Pulse Platform, or related systems or networks. In addition, you shall not, and shall not allow any other party to, access or use the Pulse Platform to design or develop a competitive or substantially similar product or service.
3. FEES AND PAYMENT
3.1 Engagement Fees. Unless you are using a free version of the Services and Pulse Platform, in consideration of Pulse’s provision of the Services and Pulse Platform for your use and benefit hereunder, you agree to pay Pulse the fees (“Fees“) set forth in the Order, including: (i) for each Services Engagement (“Engagement Fee”); (ii) for each location whose workers’ are scheduled utilizing the Pulse Platform (“Scheduling Fee”); and (iii) for each Direct Hire you make of job seekers using the Pulse Platform (“Direct Hire Fee”). The Fees, if any, will be invoiced according to the payment terms set forth in the Order.
3.2 Contractor Payments. Once a Services Engagement is completed by a Contractor, unless arrangements have been made for you to pay the Contractor directly, Pulse will facilitate your payment of the applicable Contractor Payment on behalf of the Contractor, as such Contractor’s limited payment collection agent. A Services Engagement shall be considered complete once the services have been performed by the applicable Contractor. After collection of the Engagement Fee for a completed Services Engagement from you, Pulse will pay the Contractor Payment to the applicable Contractor. In some situations, you may have the opportunity to negotiate the Contractor Payment directly with the Contractor for services received by you from such Contractor at the time you receive such services. Pulse will respond accordingly to any request from a Contractor to modify the Contractor Payment for a particular Services Engagement.
3.3 Late Cancellation Fee. In the event you cancel a Services Engagement within 24 hours before the start time of the Services Engagement, you will be required to pay the total Engagement Fee for the Services Engagement. In the event that you cancel a Services Engagement between 72 and 24 hours before the start time of the Services Engagement, you will be required to pay fifty percent (50%) of the Engagement Fee for the Services Engagement.
3.4 Taxes; General. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You and, as applicable, Contractors, are responsible for paying all Taxes associated with the Fees and purchases hereunder. If Pulse has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you. The Fees paid by you are final and non-refundable, unless otherwise determined by Pulse.
3.5 Gratuity. Contractor Payments are intended to fully compensate the applicable Contractor for each completed Services Engagement. Pulse does not designate any portion of the Contractor Payment as a tip or gratuity to the Contractor. You are free to provide additional payment as a gratuity to any Contractor, but you are under no obligation to do so. After you have received services from a Contractor and a Services Engagement is completed, you will have the opportunity to rate your experience and leave additional feedback about the applicable Contractor.
3.6 Late Payment. In the event that there are unpaid or past due amounts for Fees associated with your Account, you must pay a finance charge of the lesser of 1.5% per month or the maximum amount permitted by law on such outstanding balances, plus all expenses of collection.
4. IP OWNERSHIP
4.1 Ownership. The Pulse Platform, Pulse App, and Pulse Data, including all intellectual property rights therein, are and shall remain (as between you and Pulse) the property of Pulse, its affiliates, or their respective licensors. Neither this Agreement nor your use of the Pulse Platform, Pulse App, or Pulse Data conveys or grants to you any rights in or related to the Pulse Platform, Pulse App, or Pulse Data, except for the limited license granted above. Other than as specifically permitted by Pulse in connection with the Pulse Platform, you are not permitted to use or reference in any manner company name, logo, products and service names, trademarks, service marks, trade dress, copyrights, or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the ” Pulse Marks and Names”) for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the Pulse Marks and Names, alone or in combination with other letters, punctuation, words, symbols, and/or designs, or in any confusingly similar mark, name or title, for any goods or services.
4.2 Suggestions. You hereby grant to Pulse a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Pulse Platform, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by you related to the Services or Pulse Platform.
5.1 Definition of Confidential Information. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information”). Confidential Information includes Pulse Data, user names and passwords, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
5.2 Protection of Confidential Information. Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons”) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Pulse, its internal record-keeping requirements).
5.3 Exceptions. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
5.4 Information Included in Work Requests and Services Engagements. Notwithstanding the foregoing, you acknowledge and agree that some of the information provided in Work Requests and subsequent Pulse Notices will be sent to Contractors (as part of Pulse Notices or otherwise) who will need this information to determine if they want to perform the requested services. By submitting a Work Request, you are requesting, and expressly consenting, to have details of the Work Request and subsequent Pulse Notice sent to Contractors via the Pulse Platform. You agree that all information you provide to Pulse will be accurate, current and truthful to the best of your knowledge.
5.5 Disclosure of Your Information. Subject to applicable law, Pulse may, but shall not be required to, provide to you, a Contractor, an insurance company, and/or relevant authorities and regulatory agencies any information (including personal information and any Pulse Data) about you or any Services provided hereunder if, in Pulse‘s sole discretion: (a) there is a complaint, dispute or conflict, between you and a Contractor; (b) it is necessary to enforce the terms of this Agreement; (c) it is required by applicable law or regulatory requirements (e.g., Pulse receives a subpoena for information); (d) it is necessary to (1) protect the safety, rights, property or security of Pulse, the Pulse Platform, or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims; (3) to detect, prevent, or otherwise address fraud, security, or technical issues; (4) to prevent or stop activity which Pulse considers to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity; or (e) it is required or necessary for insurance or other purposes related to your ability to use the Pulse Platform. You understand that Pulse may retain your personal data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated.
the services and pulse platform (including the pulse app and websites) are provided “as-is” and “as-available.” pulse expressly disclaims any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. pulse makes no warranty that (a) the services and the pulse platform will meet your requirements; (b) the services will be available on an uninterrupted, timely, secure or error-free basis; or (c) the results that may be obtained from the use of the services will be accurate or reliable. pulse does not and cannot guarantee a match between each work request and a contractor, or that there are contrators willing to fulfill the work request at the time and place requested. pulse is solely an on-demand lead generation service and makes no representations, warranties, or guarantees as to the actions or inactions of the contractors performing services for you.
7. LIMITATION OF LIABILITY
pulse shall not be liable under or related to this agreement for any of the following, whether based on contract, tort, or any other legal theory, even if a party has been advised of the possibility of such damages: (i) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) your or any third party’s property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use, or other economic advantage. in no event shall the liability of pulse under this agreement exceed the amount of fees actually paid to pulse hereunder in the six (6) month period immediately preceding the event giving rise to such claim.
8. RELATIONSHIPS BETWEEN PULSE, CONTRACTORS AND CUSTOMERS; INSURANCE
8.1 Contractors. You acknowledge and agree that your use of the Pulse Platform to arrange and obtain services from a Contractor creates a direct business relationship between you and that Contractor, and your interactions and dealings with such Contractor are solely between you and such Contractor. Contractors are independent contractors and are not employees or agents of Pulse. You agree to provide the Contractors with a safe, suitable workplace and equipment, and to comply with all applicable federal, state, and local employment laws including appropriate workplace-specific safety and health training that adequately addresses potential hazards at your worksite. You supervise, direct, and control the work performed by Contractors, and assume responsibility for all operational results, including losses or damage to property or data in the care, custody, or control of such Contractors. Pulse is not responsible or liable for the actions or inactions of any Contractor in relation to any services they perform. Pulse does not guarantee or warrant the Contractors’ performance of the Work Requests or the outcome or quality of the Services Engagements. If the Contractors have access to unattended premises or the care, custody, or control of case, checks, credit card numbers, ATM bank cards, negotiables, confidential information, trade secrets or other valuable property, you must take reasonable steps to safeguard such items and you acknowledge and agree that Pulse is not responsible for any resulting loss or damage.
8.2 Documentation. Pulse will, at your written request, conduct criminal history checks, employment eligibly verification, and drug screens as permitted by state law. The costs vary depending upon the specific test or report ordered and the charges will be agreed upon prior to ordering the tests and/or reports. Pulse will provide Contractors for positions requiring specific licenses, permits, approvals, authorizations, registrations, or certifications, if notified in writing prior to an assignment. You must notify Pulse in advance, so Contractors who are qualified to meet your specifications can be assigned. Although Pulse may independently verify a Contractor’s documentation from time to time as Pulse deems appropriate in its reasonable discretion, you are responsible for verifying a Contractor’s qualifications and Pulse is not responsible if you fail to ensure a Contractor is qualified.
8.3 Pulse and Customer Relationship. The parties expressly agree that no joint venture, partnership, employment, or agency agreement exists between you and Pulse as a result of this Agreement or any use of the Services, including the Pulse Platform.
8.4 Contractor Classification. You assume all liability for proper classification of Contractors as independent contractors based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between you and a Contractor. Contractor does not have authority to enter into written or oral (whether implied or express) contracts on your behalf. Pulse does not, in any way, supervise, direct, or control any Contractor’s work or services performed in any manner. Pulse does not set any Contractor’s work hours or location of work, nor is Pulse involved in determining the type or manner of compensation to be paid for any Work Request or Services Engagement. Pulse will not provide any Contractor with training or any equipment, labour or materials needed for a particular Services Engagement. Pulse will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Customer and each Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Contractor’s performance of Services Engagements and any related services. Except for Direct Hires, you may not require an exclusive relationship between you and a Contractor. A Contractor is free at all times to perform Services Engagements, be employed by or otherwise engage with persons or businesses other than you, including any of your competitors. You agree to indemnify, hold harmless and defend Pulse from any and all claims arising out of or related to a Services Engagement, including but not limited to claims that Contractor was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that Pulse was an employer or joint employer of a Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
8.5 Insurance. As independent contractors, Pulse is not responsible for insurance coverage of Contractors. Specifically, in the event that a Contractor is injured while working in the course and scope of an engagement sourced through the Services, you acknowledge and understand that the Contractor will not be covered by any workers compensation insurance that Pulse may otherwise provide to its employees. Further, if a Contractor’s actions cause an injury to a third party while the Contractor is working in the course and scope of performing a Services Engagement or otherwise, you acknowledge and agree that the Contractor is not and will not be covered by any general liability, automobile liability, or professional liability insurance coverage that Pulse may have, and Pulse is not making any commitment to defend or indemnify the Contractor in such circumstances, and specifically denies such obligation.
9.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated as set forth herein, unless a different term is set forth in the Order.
9.2 Termination. Either party may terminate this Agreement: (a) without cause at any time upon thirty (30) days prior written notice to the other party, unless otherwise noted in an Order; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Pulse may terminate this Agreement or deactivate your Account immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Pulse, to receive the Services, or as otherwise set forth in this Agreement.
9.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Pulse App from any of your devices. Outstanding payment obligations and Sections 3 (“Fees and Payment”), 4 (“IP Ownership”), 5 (“Confidentiality”), 6 (“Disclaimers”), 7 (“Limitation of Liability”), 9.3 (“Effect of Termination”) and 10 (“Miscellaneous”) shall survive any termination of this Agreement.
10.1 Law. This Agreement or any claim, cause of action, dispute or proceeding (“Claim”) arising out of or related to this Agreement shall be governed by the laws of the State of Maharashtra, India regardless of your country of origin or where you access the Pulse Platform, and notwithstanding any conflicts of law principles.
10.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.3 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Pulse may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an affiliate; or (b) to an acquirer of all or substantially all of Pulse’s business, equity, or assets.
10.4 Notices. Pulse may give any notice required by this Agreement by means of electronic mail to your email address on record with Pulse, or by written communication sent by first class mail or pre-paid post to your address on record with Pulse. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or upon sending (if sent by email). Except as set forth in Section 10.3 above, you may give notice to Pulse, addressed to the attention of Legal. Such notice shall be deemed given when received by Pulse by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail to 517 Palm Springs Centre, Link Road, Malad West, Mumbai, India 400064, or by email at firstname.lastname@example.org.
10.5 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.6 Entire Agreement. This Agreement, including any Order referencing this Agreement, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Services Engagement, the terms of this Agreement shall prevail.
10.7 Modifications to the Pulse Platform. Pulse reserves the right at any time to modify or discontinue, temporarily or permanently, the Pulse Platform or the Services (or any part thereof) with or without notice. You agree that Pulse shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Pulse Platform or the Services.
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