Puls Technologies, Inc.
Service Provider Terms And Conditions
These Service Provider Terms And Conditions (The “Terms And Conditions'') Govern And Are Incorporated Into The Service Provider Referral Agreement Between Puls Technologies, Inc. (“Puls” Or The “Company”) And The Independent Business Service Provider (A Sole Proprietor Or Other Business Entity) (The “Agreement”). Capitalized Terms Used But Not Defined In These Terms And Conditions Have The Meanings Given To Them In The Agreement.
These Terms And Conditions Govern Service Provider’s Access To Or Use Of The Software Provided By Company And The Performance By Service Provider Of Services Pursuant To Service Requests Or “Requests” Received Through The Software. By Clicking The “I Agree” Button Below, Service Provider Agrees To Be Bound By The Entirety Of These Terms And Conditions. If Service Provider Is A Business Entity Other Than A Sole Proprietor, The Person Who Accepts On Behalf Of Service Provider Warrants That Service Provider Has The Authority To Sign On Behalf Of The Business Entity. If Service Provider Does Not Agree To These Terms And Conditions, Service Provider Should Not Use, And Service Provider Must Cease Access To Or Use Of The Software.
Service Provider Referral Arrangement
- Service Provider Operates As An Independently Established Business That Provides Repair, Install, And/Or Service Call Services, And Wishes To Access And Use The Software To Perform Services Pursuant To Service Requests Received From Customers. Service Provider Represents And Warrants That Service Provider Is Engaged In The Business Of Providing Repair, Install, And/Or Service Call Services, And That Company Is Not Service Provider’s Sole Source Of Service Provider’s Business And/Or Livelihood.
- Service Provider Seeks To Obtain The Right To Accept Requests And Perform Services Set Forth In These Terms And Conditions. Service Provider Agrees To Complete And Sign Irs Form W-9 As A Condition Precedent To Being Provided Access To The Company’s Software. Service Provider Warrants That Service Provider Will Provide Truthful And Accurate Information On All Irs Forms Provided To The Company.
- Service Provider And Company Operate Independent Businesses. The Parties Are Not Employees, Agents, Joint Ventures Or Partners Of Each Other For Any Purpose. Nothing In These Terms And Conditions Or The Agreement Shall Create A Partnership Or Joint Venture Between The Parties Or Give The Rights Of A Partner To Either Party. Neither Party Has Any Authority (And Nothing In These Terms And Conditions Or The Agreement Shall Be Treated As Giving Either Party Authority) To Enter Into A Contract For Or On Behalf Of The Other Party; Assume A Liability On Behalf Of The Other Party; Or Pledge The Credit Of The Other Party, Unless Such Authority Is Expressly Granted In Writing By The Other Party. Neither Party May Act As If It Has Such Authority And Must Not Represent (Expressly Or By Implication) That It Has Such Authority.
- Service Provider Recognizes That, As An Independent Business, Service Provider Is Not Entitled To Any Employment Related Benefits From Company Or Unemployment Benefits Following Termination Of The Parties’ Relationship.
- Service Provider And Company Are, Or May Be, Engaged In Similar Agreements With Others. Service Provider May Perform Similar Services For Others. However, Service Provider May Not And Shall Not Use Parts Obtained From Company For Use In Any Other Business Or Context. Any Parts That Service Provider May Obtain From Company For Services Shall Be Used Solely In Performance Of The Agreement.
Services To Be Rendered
- Subject To The Terms And Conditions Contained Herein, Service Provider Will Perform The Services Pursuant To The Service Request Received From Customers Via The Software, Upon Successful And Satisfactory Completion Of paid service, Service Provider Will Be Paid A Service Fee That Service Provider Has Agreed Upon With The Customer. (As Described More Fully Below).
- Service Provider Understands And Agrees That Nothing In These Terms And Conditions Shall Be Construed As A Guarantee That Service Provider Will Be Offered Any Particular Number Or Type Of Requests During Any Particular Time Period.
- The Parties Understand And Agree That Service Provider Shall Have No Obligation To Utilize The Software At Any Specific Time, Day, Or For Any Specific Duration. Service Provider Shall Have Complete Discretion To Determine When And Where Service Provider Will Be Available To Receive Any Requests. Service Provider Is Under No Obligation To Accept Any Request. Service Provider Is Under No Obligation To Accept Any Particular Number Of Requests. Notwithstanding The Preceding, If Service Provider Accepts A Request, Service Provider Shall Perform The Request In Accordance With The Customer’s Specifications And These Terms And Conditions. Service Provider’s Failure To Provide The Services On An Accepted Request Shall Constitute A Material Breach Of These Terms And Conditions And The Agreement.
- Service Provider Agrees To Inform The Customer Of Unforeseen Delays Or Emergencies That May Prevent The Service Provider From Providing An Accepted Request and the Company. Failure To Notify The Customer and the Company Of Any Substantial Delay Or Inability To Complete The Request At The Agreed Upon Time Shall Be A Material Breach Of These Terms And Conditions And The Agreement that may accompany incurred fees.
- Service Provider Agrees To, And Warrants That Service Provider Will Perform All Requests In A Timely And Professional Manner. Service Provider Agrees To, And Warrants That Service Provider Will Fully Perform All Accepted Requests In Accordance With These Terms And Conditions And Other Specifications Established By The Needs Of The Customer. Service Provider Agrees To Devote Service Provider’s Best Efforts, Skills And Abilities To Perform Any And All Accepted Requests Pursuant To These Terms And Conditions.
- The Company Shall Have No Right To Require Service Provider To Display Company’s Name, Logo Or Colors On Any Vehicle, Or To Wear A Uniform Or Any Other Clothing Displaying Company’s Name, Logo Or Colors. Notwithstanding The Preceding, Service Provider Agrees That It Will Utilize An Identification Card With Company’s Information, Only For The Purpose Of Identifying Its Affiliation With The Company At The Time Of Contact With Customers. Identification Card(S) Will Be Provided To Service Provider By Company For This Purpose.
- Subject To The Terms Of These Terms And Conditions And A Customer’s Specific Request, Service Provider Retains The Sole Right To Control Or Direct The Manner And Means In Which The Requests Described In These Terms And Conditions Are To Be Performed. The Parties Acknowledge That Any Provisions Of These Terms And Conditions Reserving Certain Authority In The Company Have Been Inserted Solely To Achieve Compliance With Federal, State, Or Local Laws, Rules, And Interpretations Thereof. Subject Only To Any Requirements Imposed By Law, The Parameters Set Forth In Any Request And/Or As Otherwise Set Forth In These Terms And Conditions, Service Provider Shall Exercise Full Discretion And Judgment As An Independent Business In Determining The Right To Control The Manner And Means Of Performance Under These Terms And Conditions. Service Provider Acknowledges That The Company Will Not Provide Any Training As To The Skills And Tasks Required In Performing Requests And Providing Services, And Will Not In Any Way Supervise Service Provider’s Performance Of Any Request.
- Service Provider Represents And Warrants That Service Provider Has Complied With And Will Continue To Comply With All Local, State, And Federal Laws In Connection With These Terms And Conditions, Including Those Regarding Business Permits, Business/Liability Insurance And Licenses That May Be Required To Carry Out The Independent Business And To Perform The Services Pursuant To Requests Under These Terms And Conditions And The Agreement. This Includes, But Is Not Limited To All Necessary Business Licenses, Permits, Insurance And Other Legal Prerequisites Necessary To Perform The Independent Business Of Technology Device Repairs, Installation, And Diagnosis, As May Be Required By The States, Counties, Cities, And/Or Localities In Which Service Provider Operates. To Ensure Service Provider’s Compliance With All Legal Requirements, Service Provider Shall Provide Written Copies Of All Such Permits And Other Legal Prerequisites Within Three (3) Business Days Of Request By Company. To Ensure All Such Documents Remain Current, Upon Reasonable Advance Request, The Company May Review Such Documents From Time To Time. Failure To Maintain Current Business Licenses, Permits Or Other Legal Prerequisites, Or Failure To Comply With Any Other Provision Of This Paragraph, Shall Constitute A Material Breach Of These Terms And Conditions And The Agreement.
- Service Provider Represents And Warrants That Service Provider Has A Valid Driver’s License, Current Automobile Insurance (With Proof Thereof), A Clean Driving Record, And A Mobile Device Capable Of Accessing The Software.
- The Services To Be Provided In A Request Shall Typically Include, Depending On The Customer’s Requests:
- Perform Services. Repair, Support, And/Or Install Technology Devices Depending On The Request.
- Collect Customer Payment. Service Provider To Facilitate Payment In Full For All Parts And Services From The Customer, Based On The Fee That Is Described And Agreed Upon By The Service Provider, Using The Company’s Software.
- Records. Service Provider Shall Record All Relevant Information Relating To The Request, Which May Include Customer Checklists, Photo Documents And Relevant Details Relating To The Request (“Records”). These Records Should Be Timely Submitted To Company So That There Is A Record Of The Service That Service Provider Provided That Will Be Available To Assist With Any Customer Inquiries Or Warranty Questions.
Access To Software
- In Consideration For And Subject To These Terms And Conditions, Company Grants To Service Provider A Nonexclusive, Non-Assignable Right During The Term Of The Agreement To Access And Use The Software Solely In Connection With Service Provider’s Performance Of The Services Pursuant To Service Requests Received Through The Software.
- Except As Expressly Permitted Under These Terms And Conditions, Service Provider Will Not Permit Or Facilitate Any Other Party To:
- Use The Software In (I) Violation Of Any Applicable Law Or In Connection With Unlawful Material (Such As Material That Violates Any Obscenity, Defamation, Harassment, Privacy, Or Intellectual Property Laws), Or (Ii) A Manner That Would Cause A Material Risk To The Security Or Operations Of Company Or Any Of Its Customers, Or To The Continued Normal Operation Of Other Company Customers Or Other Service Providers;
- Copy, Distribute, Republish, Sell, Rent, Lease, Host, Or Sub-License The Software;
- Offer, Use, Or Permit The Use Of The Software In A Computer Service Business, Third-Party Outsourcing Service, On A Membership Or Subscription Basis, On A Service Bureau Basis, On A Time-Sharing Basis, As Part Of A Hosted Service, Or On Behalf Of Any Third Party;
- Modify, Create Derivative Works Of, Adapt, Translate, Reverse Engineer, Decompile, Or Otherwise Attempt To Discover The Source Code In, Any Software; Or
- Remove, Obscure, Or Alter Any Proprietary Notices Associated With The Software.
- Except For The Limited License To The Software As Expressly Set Forth Hereunder, Company Reserves All Rights To The Software And All Other Intellectual Property Owned Or Licensed To Or By Company, And All Rights Therein.
- Company Will Provide Service Provider With User Ids, Passwords And Login Credentials (Collectively, “User Ids”) To Enable The Service Provider To Access The Software Pursuant To These Terms And Conditions. Service Provider Must Not Share Its User Ids, And Is Responsible For Unauthorized Access To Its User Ids And Any Account Activity That Occurs Under Service Provider’s User Ids.
- Service Provider Understands And Agrees That Company Will Perform A Background Search Of Service Provider Prior To Providing Service Provider With Access To The Software As A Condition Precedent. Service Provider’s Connection With Customers Through The Software Is Conditioned On A Satisfactory Result Of A Background Check. Company May Refuse To Provide Service Provider Access To The Software Based Upon Any Lawful Reason, Including, But Not Limited To, The Result Of A Background Search And The Other Terms Of These Terms And Conditions. Service Provider Agrees To Provide Company With Any And All Information Needed In Order For Company To Perform The Background Search, Pursuant To These Terms And Conditions.
- Service Provider Represents And Warrants That Service Provider Will Not Present A Threat To The Safety Or Security Of Customers’ Or Others’ Premises, Person, Guests, Customers Or Employees.
- Service Provider Represents And Warrants That Service Provider Has Never Been Convicted Of Any Felony Or A Misdemeanor Relating To Violence, Weapons, Sex Related Crimes, Theft, Robbery, Burglary, Dishonesty, Fraud Or Embezzlement, Or Unlawful Operation Of A Motor Vehicle (Including Both Criminal And Civil Actions). Service Provider Further Represents And Warrants That Service Provider Has Not Been Convicted Of A Felony Or Misdemeanor Relating To The Use, Sale Or Distribution Of Controlled Substances Within The Past Five Years. Service Provider Will Notify Company Immediately If Service Provider Cannot Make This Representation At Any Time During The Term Of The Terms And Conditions Or Agreement.
- Upon Completion Of Services Pursuant To Service Requests Received From Customers, Service Provider Will Submit To Customers And Company Confirmation That The Services Are Complete. Company Agrees To Pay A Mutually Agreed Upon Service Fee To Service Provider For Each Request Accepted And Completed In Accordance With These Terms And Conditions. The Service Fee Shall Be An Amount That Is Based On The Request Being Performed At A Rate Negotiated Between The Service Provider And The Customer. Notwithstanding The Preceding, Service Provider Will Be Entitled To Its Service Fee Even If The Company Does Not Collect Fees From A Customer In Excess Of The Amount Of Service Provider’s Service Fee.
- The Average Service Fee Amount For Each Request Type Shall Be Published By The Company. The Company Offers A List Of Average Service Fees To Act As The Default Fee In The Event The Service Provider And Customer Do Not Negotiate A Different Amount. These Service Fees Are Negotiable And Can Be Negotiated On Thirty (30) Days’ Notice From Either Service Provider Or Company. A Request To Negotiate The Service Fee Must Be Submitted In Writing Or Electronically By Email To Our Engagement Team At Engagement@Puls.Com. Service Provider And The Company Shall Always Have The Right To Negotiate Individual Terms And Conditions; However, No Changes Or Modifications Shall Be Made Or Will Be Effective Unless The New Term Or Condition Is In Writing And Signed By Both Parties’ Authorized Representative. Nothing Precludes Company From Making Additional Payments To Service Provider On A Case-By-Case Basis.
- The Company Will Pay Service Provider Within Fourteen (14) Days Of The Completion Of The Request. Service Providers Currently Receive Payout Three Times A Week. The Company Agrees To Notify Service Provider Promptly Of Any Changes To The Payout Schedule.
- If Service Provider Disputes Any Service Fee, Service Provider Must Notify Company Within 30 Days Of Such Payment. If Company Disputes Any Requests, Company Must Notify Service Provider Within 30 Days Of Completion Of The Request. Failure To So Notify The Other Party Shall Result In The Waiver Of Any Claim Relating To Such Disputed Service Fee.
- Service Provider Acknowledges That There Is No Expectation Of Tipping For Any Services That Service Provider Provides Pursuant To The Receipt Of A Request. Tips Voluntarily Offered And Given To A Service Provider By A Customer Are The Sole Property Of And Belong To The Service Provider.
- Company Will Not Reimburse Service Provider For Any Expenses Incurred By Service Provider As A Result Of Services Rendered.
- Except As Set Forth In Article Iv, Service Provider Will Supply All Equipment, Tools, Materials, And Supplies Necessary To Perform The Services And Requests Under The Agreement Or Terms And Conditions.
- Refunds: In The Event It Is Necessary For Company To Refund Service Fees To A Customer As A Result Of The Services Performed By Service Provider, The Amount Paid To Service Provider By Company For The Request That Was Refunded Will Be Due And Payable To The Company By Service Provider Within Seven (7) Calendar Days Of The Date Company Provides Notice To Service Provider Of The Refund. Company May Offset Any Refunds Required To Be Paid To Customers Against Any Amounts, Including Service Fees Owed To Service Provider.
- Fees & Charges: Puls reserves the right to apply fees for certain behaviors that may result in additional costs or resources required to complete a service. These fees may include, but are not limited to, cancellations for appointments canceled or dropped back to the market less than 72 hours in advance, rescheduling fees for appointments rescheduled less than 72 hours in advance. By continuing to use Puls' platform, you acknowledge and accept the possibility of these additional fees.
Taxes And Insurance
- Company Will Report All Amounts Paid To Service Provider Via Irs Form 1099-Misc. Service Provider, And Not Company, Will Therefore Pay All Income Taxes, Business Taxes, Payroll Taxes, Withholding Taxes And Disability And Unemployment Contributions Due With Respect To Payments Made To Service Provider.
- Service Provider Agrees That It Is Service Provider’s Exclusive Responsibility To Pay All Taxes, Insurance Premiums, And Local, State, And Federal Taxes Related To The Agreement Or Terms And Conditions. Neither Fica (Social Security), Futa (Federal Employment), Nor Local, State, Or Federal Income Taxes Will Be Withheld From Company Payments To Service Provider.
Term And Termination
- Unless Terminated As Set Forth Below, The Term Of The Terms And Conditions And Agreement Will Commence On The Date The Terms And Conditions And Agreement Are Accepted By Service Provider And Continues For One Year. The Terms And Conditions And Agreement Will Be Automatically Renewed Unless The Service Provider Gives Notice To The Company Thirty (30) Days Prior To Its Termination. The Agreement Shall Remain In Effect Until Terminated In Accordance With The Following:
- The Agreement May Be Terminated, With Or Without Cause, On Thirty (30) Days’ Notice By Notification Of Termination By Either Party To The Other;
- The Agreement May Be Terminated In The Event Of A Material Breach Of The Agreement Or These Terms And Conditions. Termination Of The Agreement By The Company Will Take Place Through Suspension Of A Service Provider’s Access To The Software.
- A Material Breach Shall Include, But Not Be Limited To, The Following Acts Or Occurrences:
- Failure By The Company To Remit To Service Provider All Service Fees Due And Owing Within Thirty (30) Days Of The Date The Amount Became Due, Unless Service Provider Has Contested The Payment And The Parties Are In Negotiation To Resolve The Dispute;
- Service Provider’s Breach Of These Terms And Conditions As Relates To Any Damage Or Injury Caused By Service Provider;
- Refusal By The Company To Provide Documentation Reasonably Requested By Service Provider And Reasonably Relating To A Damage Or Injury Claim Arising Under These Terms And Conditions;
- Service Provider’s Refusal To Fully Complete A Request After Acceptance Without Waiver By The Customer Or The Company;
- Failure By Service Provider To Maintain All Business Licenses, Permits, And Other Prerequisite Documents Required By Law And/Or Pursuant To These Terms And Conditions;
- Service Provider’s Enabling Of Or Permitting Anyone To Access The Software Without The Company’s Prior Written Authorization For That Person To Access The Software;
- Any Intentional Material Misrepresentations By Service Provider To A Customer Or The Company, Or Any Representations Or Warranties Made In Excess Of Those That Are Given By The Company To Customers;
- Failure By The Service Provider To Maintain Accurate And Adequate Records;
- Violation By The Company Or Service Provider Of Any Covenant, Representation Or Warranty Contained In These Terms And Conditions;
- Any Use By The Service Provider Of The Authorized Components That Are Not Expressly Permitted In These Terms And Conditions, Including Any Theft, Misappropriation, Sale, Or Resale Thereof;
- Any Documented Complaint By A Customer That Service Provider Engaged In Conduct That A Reasonable Person Would Find Physically Threatening, Highly Offensive Or Harassing Or That Constitutes Unlawful And Illegal Conduct; And/Or
- Any Other Breaches Defined In These Terms And Conditions As A Material Breach.
Customer Guarantee Claims
- Customer Can Make Warranty Claims To Company For Services Performed By Service Provider.
- When A Customer Makes A Warranty Claim, The Company First Checks The Records Submitted By Service Provider.
- If Records Are Not Provided By Service Provider, And The Request Is Not Complete, The Warranty Claim Is Considered An “At Fault” Claim.
- If Records Are Provided By Service Provider, Company Will Review And Determine Whether The Cause Of The Warranty Claim Is Due To Service Provider Error And Considered To Be Service Provider “At Fault.” Following Notice To Service Provider, Service Provider Can Dispute The Company’s Decision By Contacting Company Within Three (3) Business Days.
- If The Warranty Claim Is Determined To Be “At Fault,” The Request Will Be Considered Not Complete As Described In Paragraph 3 Below.
- If The Warranty Claim Is Determined To Be Due To A Defective Part Or Other Non- Service Provider Related Cause, The Request Will Be Considered Complete And The Service Provider Will Have No Additional Responsibility Or Liability For The Request.
- In The Event A Customer Makes A Guarantee Claim, And The Guarantee Claim Is Determined By Company To Be An “At Fault” Claim, The Request Will Be Considered Incomplete And A Service Fee Not Earned. An “At Fault” Claim Results In The Following:
- If Able, Service Provider Can Choose To Return To The Customer And Complete The Request In Order To Avoid The Payments Described Below;
- If Service Provider Is Unwilling, Unavailable Or Unable To Return To The Customer To Complete The Request, The Service Provider Agrees To Pay Company Up To 100% Of The Service Fee For Each “At Fault” Guarantee Claim And Service Provider Authorizes Such Charges To Be Deducted From Service Provider Service Fees;
- If The Customer Requests That The Service Provider Not Return To Complete The Request, And Therefore The Service Provider Is Unable To Complete The Request, Service Provider Agrees To Pay Company Up To 100% Of The Service Fee For Each “At Fault” Guarantee Claim And Service Provider Authorizes Such Charges To Deducted From Service Provider’s Service Fees.
- Service Provider Shall Indemnify, Defend, And Hold Company (Including Company’s Subsidiaries, Successors, Predecessors, Affiliates, Investors, Officers, Directors, Members, Other Contractors, Employees, Representatives, And Agents) Harmless From And Against Any And All Claims, Demands, Liens, Liabilities, Expenses, Losses, Judgments, Settlements, Or Damages, Including Attorney's Fees And Costs, Penalties, Interest, And Disbursements (“Claims”) Brought Against Or Otherwise Suffered Or Incurred By Company To The Extent Those Claims Are Based Upon Allegations, Of Whatever Nature And Whatever Amount, Arising Directly Or Indirectly From, Out Of, Or In Connection With:
- Service Provider’s Acts Or Omissions Arising From The Performance Of Requests Under These Terms And Conditions, Including, But Not Limited, To Negligent Act Or Willful Misconduct, Personal Injury Or Death To Any Person (Including Service Provider);
- Service Provider’s Violation Of Any Term Of These Terms And Conditions, Including Without Limitation Service Provider’s Breach Of Any Of The Representations And Warranties;
- Service Provider’s Violation Of Any Third Party Right, Including Without Limitation Any Right Of Privacy Or Intellectual Property Rights;
- Service Provider’s Violation Of Any Applicable Law, Rule Or Regulation;
- Liability For Civil And/Or Criminal Conduct, Including, But Not Limited To, Assault, Battery, Fraud, Injury, Death, Property Damage, Defamation, Invasion Of Privacy, Assault, Battery, Breach Of Contract, Violation Of Federal, State Or Local Laws Or Regulations;
- Any Liability Arising From Service Provider’s Failure To Comply With These Terms And Conditions;
- Service Provider’s Use Of Other Parts In Connection With The Services That Are Not Authorized Components, Or Any Damage Or Destruction To Authorized Components While They Are In Service Provider’s Possession; And
- Service Provider’s Use And/Or Misuse Of The Software; And Claims Of Damage And/Or Injury To Any Customer Or Customer’s Property Sustained As A Result Of Service Provider’s Performance Of A Request, In Which Case, Service Provider Shall (1) Notify The Company Of Any Damage Or Injury, As Soon As Practicable, After The Damage Or Injury Occurs, And (2) Fully Cooperate With The Customer And/Or The Company To Resolve Injury Or Damage Claims As Quickly And Fairly As Possible.
- Service Provider Agrees That, In The Event The Company Is Held Liable For Any Injury Or Damage To Any Customer Caused By Service Provider Or The Services Performed By Service Provider, Company Shall Have The Right To Recover Such Amount From Service Provider, Including But Not Limited To Offsetting Any Service Fees Or Other Amounts Due To Service Provider. Should Company Elect To Voluntarily Pay Any Amount To A Customer For Damage Or Injury To A Customer Caused By Service Provider Or The Services Performed By Service Provider Or For Which Service Provider Is Responsible And/Or Liable, The Company Shall Have The Same Right As The Customer To Recover From Service Provider.
- To The Fullest Extent Permitted By Law, Company Hereby Expressly Disclaims And Excludes All Warranties, Express, Implied, Or Statutory, Including, Without Limitation, The Implied Warranties Of Merchantability, Title, Non-Infringement, Fitness For A Particular Purpose Or Use, And Warranties Implied From A Course Of Dealing Or Course Of Performance With Respect To The Authorized Components, The Software, And The Subject Matter Of These Terms And Conditions And The Agreement. In No Event Will Company, Or Any Of Its Agents, Make Any Representation Or Warranty Concerning The Services, Authorized Components Or The Software, Including But Not Limited To Customers, And Service Provider Acknowledges That It Has Not Relied On Any Other Warranties Or Representations In Connection With Entering Into The Agreement And These Terms And Conditions.
Limitation Of Liability
- In No Event Shall Company Or Any Of Its Affiliates, Subsidiaries Or Parent Companies Be Liable, Whether Under Contract, Warranty, Indemnity, Tort, Statute Or Other Legal Theory, For Special, Incidental, Consequential Or Indirect Damages, Whether Or Not It Has Or They Have Been Advised Or Is Or Are Aware Of The Possibility Of Such Damages. For Any Reason And Upon Any Causes Of Action, Company And Its Affiliates, Subsidiaries And Parent Companies Shall Not Be Liable For Any Damages In An Aggregate Amount Exceeding The Service Fees Payable By Company To Service Provider Hereunder During The One Month Preceding The Accrual Of Such Liability.
Non Disclosure Of Confidential Information
- The Term “Confidential Information” As Used Herein Shall Include Any And All Written And Verbal Information Provided To Service Provider In Connection With The Services To Be Provided By Service Provider Pursuant To The Agreement And Terms And Conditions, Except, As To Confidential Information Transmitted From Company To Service Provider, Confidential Information Shall Not Include Any Information Which:
- Is Or Becomes Generally Known To The Public Through No Fault Of The Service Provider;
- Is Already Known To The Service Provider Prior To Service Provider’s Receipt From Company Without Breach Of Any Obligation Of Confidentiality Or Duty Of Nondisclosure; Or
- Becomes Known To The Service Provider By Disclosure From A Third Party Who Has A Lawful Right To Disclose The Information.
- Notwithstanding Anything In These Terms And Conditions Or The Agreement To The Contrary, Customer Information (As Defined In The Agreement) Will Be Deemed Confidential Information.
- Without Limiting The Generality Of The Foregoing, Confidential Information Shall Include Trade Secrets (As Defined Under The Version Of The Uniform Trade Secrets Act Adopted And In Effect In The State Of California From Time-To-Time During The Term Of The Agreement, Or, If Required By Applicable Law, The Definition In The Utsa Or Similar Law For The State Where Service Provider Resides Or Maintains A Business License) And All Other Discoveries, Developments, Designs, Improvements, Inventions, Formulas, Software Programs, Processes, Techniques, Know-How, Negative Know-How, Data, Research, Techniques, Technical Data, Customer And Supplier Lists, And Any Modifications Or Enhancements Of Any Of The Foregoing, And All Company Program, Pricing, Marketing, Sales, Business Contract, Or Other Financial Or Business Information.
- Service Provider Acknowledges The Representations Of Company That Confidential Information Is Proprietary And Valuable To Company, And That Any Disclosure Or Unauthorized Use Thereof May Cause Irreparable Harm And Loss To Company.
- The Company Considers, And Service Provider Acknowledges, That The Company’s Customer Lists And All Information Relating To The Company’s Products And Customers, Including Customer Information And Records, Are Confidential Information.
- Service Provider Agrees To Treat Confidential Information On A Confidential And Restricted Basis And To Undertake The Following Additional Obligation With Respect Thereto:
- To Use Confidential Information For The Sole Purpose Of Performing Service Provider’s Services Pursuant To These Terms And Conditions And The Agreement;
- Not To Duplicate, In Whole Or In Part, Any Confidential Information;
- Not To Disclose Confidential Information To Any Entity, Individual, Corporation, Partnership, Sole Proprietorship, Customer Or Client Without The Prior Express Written Consent Of Company; And
- To Return All Confidential Information To Company Upon Termination Of The Agreement Or Request Therefore And To Destroy Any Additional Notes Or Records Made From Such Confidential Information.
- The Standard Of Care To Be Utilized By Service Provider In The Performance Of Service Provider’s Obligations Set Forth Herein Shall Be, At A Minimum, The Standard Of Care Utilized By The Service Provider In Treating The Service Provider 's Own Information Which Service Provider Does Not Wish Disclosed To Any Third-Party, Which Will In No Event Be Less Than A Reasonable Degree Of Care.
- The Confidential Information Restrictions And Obligations Set Forth In These Terms And Conditions Shall Survive Any Expiration, Termination Or Cancellation Of The Agreement.
- Nothing In These Terms And Conditions Or The Agreement Is Intended To Or Will Be Used In Any Way To Limit Any Rights To Communicate With A Government Agency, As Provided For, Protected Under Or Warranted By Applicable Law.
- Dtsa Notification. The Misappropriation Of Trade Secrets (A Form Of Intellectual Property) Is A Violation Of Law, Just Like The Theft Of Any Property. In Addition To State Law Remedies, The Defend Trade Secrets Act Of 2016 (The "Dtsa") Enables A Trade Secret Owner To Bring A Trade Secret Misappropriation Case In Federal Court. The Dtsa Generally Provides That An Individual Shall Not Be Held Criminally Or Civilly Liable Under Any Federal Or State Trade Secret Law In The Following Circumstances: (I) Where The Individual Discloses Trade Secrets In Confidence To A Federal, State Or Local Government Official Or To An Attorney Solely For The Purpose Of Reporting Or Investigating A Suspected Violation Of Law; Or (Ii) Where The Disclosure Is Made In A Sealed Filing In A Lawsuit Or Other Proceeding. In Addition, The Dtsa Generally Permits An Individual To Disclose Trade Secrets To The Individual’s Attorney In The Course Of Pursuing A Lawsuit Where The Person Alleges Retaliation For Reporting A Suspected Violation Of The Law (Or Uses The Trade Secret Information In Such Lawsuit, If The Individual Files Any Document Containing The Trade Secret Under Seal And Does Not Disclose The Trade Secret, Except Pursuant To Court Order). The Foregoing Is A Very Generalized Summary Of The Immunity Provisions Of The Dtsa Intended To Satisfy The Notification Requirements Of The Dtsa. However, The Dtsa Does Not Preclude The Trade Secret Owner From Seeking Breach Of Contract Remedies. Service Provider Is Advised To Seek Legal Counsel Before Disclosing Any Trade Secrets If Service Provider Intends To Seek Immunity Under The Dtsa. Service Provider May Not Be Held Criminally Or Civilly Liable Under Any Federal Or State Trade Secret Law For The Disclosure Of A Trade Secret That: (A) Is Made (I) In Confidence To A Federal, State Or Local Government Official, Either Directly Or Indirectly, Or To An Attorney; And (Ii) Solely For The Purpose Of Reporting Or Investigating A Suspected Violation Of Law; Or (B) Is Made In A Complaint Or Other Document That Is Filed Under Seal In A Lawsuit Or Other Proceeding.
- Service Provider Shall Maintain The Type And Scope Of Insurance Necessary To Comply With All Applicable Laws In The Provision Of Services Under The Agreement Or Terms And Conditions And In The Conduct Of Service Provider’s Business As It Relates To Company. Such Coverage Shall Be Sufficient To Protect Both Service Provider And Company In Connection With Rendering Services Under And Compliance With This Agreement And Terms And Conditions. “Sufficient” Means (I) Adequate To Comply With All Applicable Statutes, Regulations, And Common Law Applicable To Service Provider Including Where Service Provider Conducts Business, (Ii) Sufficient To Cover Defense Costs And Fees As Well As Liability To Third Parties And Claimants, (Iii) Adequate To Cover Anyone Who Is Engaged By Service Provider And Is Under Service Provider’s Direction And Control, And (Iv) Extends To Service Provider’s Indemnification Obligations Pursuant To These Terms And Conditions And The Agreement. Examples Of Coverages That Service Provider May Be Obligated To Procure Hereunder Include But Are Not Limited To Vehicle (Including Collision And Commercial Vehicles As Well As Personal Vehicles), Comprehensive General Liability, Workers’ Compensation, And/Or Accidental Death.
- Applicable Law. These Terms And Conditions Shall Be Construed And Enforced In Accordance With The Laws Of The State Of California Unless Applicable Law In The State In Which The Service Provider Maintains Its Principal Place Of Business Requires Otherwise.
- Modification. These Terms And Conditions May Only Be Modified Or Amended If Agreed By Both Parties.
- Severability. The Provisions Of These Terms And Conditions Are Divisible; If Any Such Provision Shall Be Deemed Invalid Or Unenforceable, Such Provision Shall Be Deemed Limited To The Extent Necessary To Render It Valid And Enforceable And The Remaining Provisions Of These Terms And Conditions Shall Continue In Full Force And Effect Without Being Impaired Or Invalidated In Any Way. These Terms And Conditions Shall Be Deemed To Consist Of A Series Of Separate Covenants.
- Review By Counsel. Each Party Has Had The Opportunity To Have These Terms And Conditions Reviewed By Legal Counsel Of Their Choice. Each Party Has Carefully Reviewed And Examined These Terms And Conditions And Fully Understands And Agrees To Each And Every Provision Contained Herein. Any Statute Or Rule Of Construction That Provides That Ambiguities Are To Be Resolved Against The Drafting Party Shall Not Be Used In The Interpretation Of These Terms And Conditions.
- Assignability. Under No Circumstances May Service Provider Assign The Agreement Or These Terms And Conditions Without The Prior Written Consent Of The Company. Any Purported Assignment In Violation Of This Section Shall Be Void. The Company Shall Have The Right, Without Service Provider’s Consent And In Company’s Sole Discretion, To Assign The Agreement, These Terms And Conditions, Or All Or Any Of Its Obligations And Rights Hereunder, Provided That The Assignee Of The Company’s Obligations Under Such Assignment Is, In The Company’s Reasonable Judgment, Able To Perform The Company’s Obligations Under The Agreement And These Terms And Conditions. Upon Such Assignment, The Company Shall Have No Further Liability To The Service Provider For The Obligations Assigned.
- Full Authority. If Any Party To The Agreement Or These Terms And Conditions Is An Entity, The Individual Signing On Behalf Of The Party Entity Personally Represents And Warrants That They Have The Full Right And Authority To Enter Into The Agreement And Terms And Conditions On Behalf Of The Entities Who Are A Party To The Agreement, And That The Consent Of No Other Individual/Entity Is Required To Effectuate The Terms Of The Agreement.
- Notice. The Company May Give Notice By Means Of A General Notice To Service Provider Through The Software, Electronic Mail To Service Provider’s Email Address On Record In The Company’s Account Information, Or By Written Communication Sent By First Class Mail Or Pre-Paid Post To Service Provider’s Principal Place Of Business On Record In The Company’s Account Information. 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 Twelve (12) Hours After Sending (If Sent By Email Or Through The Software). Service Provider May Give Notice To The Company (Such Notice Shall Be Deemed Given When Received By The Company) At Any Time By Any Of The Following: (A) Letter Sent By Email To Attention@Puls.Com; Or (B) Letter Delivered By Nationally Recognized Overnight Delivery Service Or First Class Postage Prepaid Mail To The Company At The Following Address: 849 East Stanley Blvd, #203 Livermore Ca 94550-4008.
- Execution. These Terms And Conditions Can Be Executed By Clicking “I Accept.” The Parties Agree To Do All Things Necessary And To Execute All Further Documents Reasonably Necessary And Appropriate To Carry-Out And Effectuate The Terms And Purposes Of The Terms And Conditions.
- Titles. The Heading, Titles, And Subtitles Used In These Terms And Conditions Are For Convenience Of Reference And Do Not Control Or Affect The Meaning Or Construction Of Any Of The Provisions Of The Agreement Or These Terms And Conditions.
- Entire Agreement. The Agreement And These Terms And Conditions Constitute The Entire Understanding And Agreement Of The Parties With Respect To The Subject Matter Thereof And Hereof, And Supersede All Other Prior And Contemporaneous Oral And Written Agreements And Understandings Between The Parties Hereto With Respect To The Subject Matter Thereof And Hereof. Any Statute Or Rule Of Construction That Ambiguities Are To Be Resolved Against The Drafting Party Shall Not Be Used In The Interpretation Of The Agreement Or These Terms And Conditions.
- No Waiver. No Waiver By Either Party Of Any Breach By The Other Party Shall Be Construed As A Waiver With Respect To Any Other Breach. Whether Or Not Specifically Identified Herein, All Remedies Available To The Parties Shall Be Cumulative, And The Exercise Of Any One Or More Remedies By Either Party Shall Not Constitute A Waiver Of Or Exclude Any Other Remedy, Which That Party May Assert.
- Acknowledgment. By Acceptance Of These Terms And Conditions And The Agreement, Service Provider Acknowledges And Warrants That Prior To Acceptance, Service Provider Read The Agreement And These Terms And Conditions In Its Entirety And Was Afforded The Opportunity To Have The Agreement And These Terms And Conditions Reviewed By Legal Counsel. If Service Provider Is A Business Entity Other Than Sole Proprietor, The Person Who Accepts On Behalf Of Service Provider Warrants That Service Provider Has The Authority To Sign On Behalf Of The Company/Business Entity. Service Provider Acknowledges That Service Provider Can Read The English Language And Understands The Agreement And These Terms And Conditions Or, Alternatively, Service Provider Had The Agreement And These Terms And Conditions Interpreted In Service Provider’s Native Language, And Had Sufficient Time To Consider And Understand It Before Acceptance.