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These Technician Terms of Service, together with all Ancillary Documents incorporated herein, and the rules, policies, terms and conditions set forth in, referred to and/or linked
herein, all of which are incorporated herein by reference, are, collectively, the “Agreement.” This Agreement constitutes a legal agreement between you, an independent technician, whether an individual natural person or entity, who registers with the Heave Platform to provide equipment repair services to Customers (hereinafter referred to as “you” or “Technician”), and Heave Inc., a Delaware corporation (“Heave”). This Agreement sets forth the terms applicable to your engagement and use of the Heave Platform as an independent technician.
Your access and use of the Heave Platform as a technician constitutes your agreement to be bound by this Agreement. If you do not agree to this Agreement, you may not access or use the Heave Platform as a technician. This Agreement expressly supersedes prior agreements or arrangements with you, and supersedes content or information you read or have access to at other places, such as our website, emails, or applications. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.
1. Definitions
For the purposes of this Agreement, the following terms have the meanings set forth below:
1.1 "Affiliated Individual(s)" means all agents, employees, entities, owners, partners, principals, independent contractors, sub-contractors, third party agents, representatives,
workers, or other service providers of the Technician.
1.2 "Ancillary Documents" means the Heave Technician Guidelines, the Heave privacy statement, the Heave Terms of Service, the Prime Agreement, the User Terms and Conditions, and any other rules, policies, terms and conditions of the Heave Platform published by Heave or its affiliates on its website (presently https://www.heaveapp.com), or in its mobile applications, from time to time, as amended during the term thereof.
(https://www.heaveapp.com), or in its mobile applications, from time to time, as amended
during the term thereof.
1.3 "Business Day" means Monday through Friday exclusive of any federal or state holiday or observation thereof.
1.4 "Confidential Information" means this Agreement, the Ancillary Documents, the
Heave Platform software, and all digital content contained in or used by Heave in the Heave Platform or any of its websites or mobile applications. Confidential information shall also include any data or information submitted by or pertaining to any participating insurer or participating insured.
1.5 "Customer" means any individual, business, or other legal entity using Heave for equipment repair services, preventative maintenance services, or equipment inspection
services.
1.6 "Estimate" means a document created by the Technician after completing an inspection of the equipment for the quantities of materials and labor hours anticipated to
complete a job.
1.7 "Heave Platform" means the Heave website, mobile applications, and software through which Heave (i) maintains a network of pre-credentialed service providers offering equipment repair services who seek to connect with Customers who require equipment repair services.
1.8 "Job(s)" means the work subcontracted to and performed by the Technician as detailed within a Work Order and pertaining to the (i) inspection of equipment; (ii) created of Estimates of repairs for equipment; and, (iii) repair and/or restoration of a Customers' piece of equipment.
1.9 "Minimum Eligibility Criteria" means the minimum standards of conduct and eligibility that a Technician and its Affiliated Individuals must satisfy during the term of this Agreement, as set forth in the Heave Guidelines, which may be updated from time to time by Heave pursuant to Section 2.2.
1.10 "Prime Agreement" is the agreement between a Customer and Heave detailing the scope of the job and the services to be performed thereunder.
1.11 "Technician Account" is Technician’s account with the Heave Platform that enables the Technician access to the Heave Platform.
1.12 "Work Order" is a record of a Job assignment from Heave to the Technician authorizing the performance of the scope of work stated therein.
2. Incorporation of Ancillary Documents and Modifications
2.1 Incorporation of Ancillary Documents. This Agreement incorporates by reference
all Ancillary Documents. By creating a Technician Account, accessing the Heave Platform, or using the Heave Platform, the Technician acknowledges that it has read each of the Ancillary Documents, that it and any Affiliated Individual understand and agree to conduct themselves in accordance with the terms and conditions of such documents and further agrees to be bound by all of the terms and conditions of this Agreement and the Ancillary Documents.
2.2 Modification of Ancillary Documents and Notice. Heave reserves the right, in its
sole discretion to, at any time, modify this Agreement, including any Ancillary Documents. The Technician is responsible for monitoring the Heave Platform, reviewing all notifications posted thereto, and complying with current versions of the Ancillary Documents. The "Last Updated" date indicated on each of the Ancillary Documents will indicate when the latest modifications were made. Further, if Heave makes material modifications to the terms of any Ancillary document, the Technician will be provided notice by email at least thirty (30) days before the material modifications become effective. If the Technician disagrees with revised terms, upon notice of such disagreement by Technician to Heave, this Agreement may be terminated with immediate effect and any Technician Account created will be deactivated. By continuing to participate in the Heave Platform after this Agreement, including any of the Ancillary Documents, have been modified, the Technician hereby agrees to be bound by such modifications.
3. Job Performance
3.1 Time is of the Essence. The Technician will, at a minimum, perform services set forth within all accepted Work Orders in a timely, workmanlike, and professional manner in accordance with this Agreement, the Ancillary Documents, and any Applicable Laws (defined below).
3.2 Quality of Job Performed. The Technician shall at all times provide new materials
(unless otherwise specified in the Work Order for a Job). Subject to Sections 3 and 6,
after receiving notice (written or verbal, including via the Heave Platform) from Heave, the Technician shall, within the reasonable time period specified by Heave in its sole discretion, proceed to take down or otherwise remove all portions of the job which Heave or Customer shall have determined is unsound, improper, or in any way failing to comply with the job or this Agreement and shall replace with new, conforming, and quality services in a manner deemed satisfactory by Customer and Heave.
3.3 Equipment. The Technician will, at its own expense, provide all transportation and
provide and maintain all equipment, supplies, tools (including appropriate personal protective equipment) and other resources (collectively, "Equipment") necessary to
fulfill its obligations under the specific job accepted and/or this Agreement. The Technician will keep Equipment in good repair and safe operating condition, maintain Equipment according to manufacturers' recommendations, and use Equipment for its intended purpose.
3.4 Clean Up. The Technician shall, at its own expense: (a) keep the Customer's premises free from waste, materials, packaging and other debris accumulated in connection with the services rendered on any Job by collecting and removing such debris on a daily basis or other basis as requested by Heave; (b) at the completion of the Job, make the Job area and its immediate vicinity "clean"; and (c) remove all Equipment, tools, surplus materials and the like as directed by the Customer or Heave at the job's completion. The Technician agrees to provide all cleaning and cleanup required under a Job to the extent such requirements are not in excess of this Section. If the Technician fails to commence clean-up duties within twenty-four (24) hours after receiving notice from Heave or the Customer, Heave may implement cleanup measures as necessary or prudent without further notice. The costs associated with the cleanup shall be reimbursed to Heave by the Technician.
3.5 Environmental Protection. The Technician shall be responsible for compliance with all applicable federal, state, and local natural resource and environmental protection requirements, codes and regulations, including without limitation, all Applicable Laws pertaining to hazardous wastes and substances (hereinafter "Hazardous Materials" it or its Affiliated individuals encounter any Hazardous Materials during the performance of the services of the Job at any time.
3.6 Equipment Losses. The Technician is solely responsible for the care of, and for all losses that may occur with respect to any actual or alleged physical damage to or loss of, the Customer's equipment arising from or relating to services rendered pursuant to the accepted job.
3.7 Encumbrances. To the extent permissible under Applicable Laws, the Technician
agrees to waive any and all rights to file or record a lien, claim of lien, stop payment notice, stop notice, security interest, and any other encumbrances against a Customer, and the property of the Customer ("Encumbrances"). The Technician shall, at all times, keep the property of the Customer free from Encumbrances filed or recorded by Affiliated individuals or others claiming to be in the chain of privity with the Technician in connection with the Job. The Technician shall cause the release, dissolution, cancelation or removal of any Encumbrance relating in any way to the Job within five (5) Business Days of being made aware of such Encumbrance, irrespective of the validity. Further, Heave shall have the right, but not the obligation, to take any and all steps necessary to promptly release such Encumbrances, and the Technician shall pay to Heave or its Customer(s) by reason thereof, the expenses, including legal fees, plus interest at the maximum rate permitted by applicable law, incurred by Heave or its Customer(s) as a result of such Encumbrances. The Technician agrees that Heave is entitled to deduct such costs, expenses and legal fees from any sum then due or thereafter becoming due. This paragraph shall survive the termination of this Agreement.
3.8 No Customer Solicitation. The Technician and any Affiliated Individuals used on a
Job will not offer, solicit, or provide any services, or recommend a third-party for the
performance of any Job for a Customer, other than providing the services set forth in the accepted Work Order. The Technician and any Affiliated individuals will not use Confidential Information (as defined below), information about Customers obtained as a result of your activities under this agreement, the applicable work order, or any other information about Customers obtained as a consequence of your fulfillment of obligations under this Agreement, for any purpose other than as necessary to perform the Job. The Technician and any Affiliated individuals are expressly prohibited from using Confidential Information to solicit, directly, or indirectly, any business from a Customer or prospective customer. The Technician and Affiliated individuals will not use Confidential Information for the purpose of providing products or services that are the same as, similar to, and/or competitive with, services that can be fulfilled by Heave. TheTechnician acknowledges and agrees that the restrictions contained in this Section are fair, reasonable, and necessary to protect Heave's legitimate business interests, and that the Technician accepts a duty to know and remain aware of the services that are fulfilled by Heave. The non-solicitation restrictions set forth in the first sentence of this Section will survive for one (1) year after the termination of this Agreement or your deactivation from the Heave Platform, and the limitations on use of Confidential Information shall survive for so long as the restrictions on confidentiality of Confidential Information survive as set forth below. The Technician agrees that immediate,
irreparable harm could cause Heave and its business if the Technician or Affiliated Individuals breach their obligations in this section. Therefore, the Technician agrees that Heave will be entitled to injunctive or other equitable relief if the Technician or Affiliated Individuals breach their obligations under this Section, in addition to any other remedies available at law or equity.
3.9 No Assurance of Jobs. Nothing in this Agreement shall be construed as a guarantee that the Technician shall be offered any particular number of Jobs during any particular time period. The Technician acknowledges that Heave makes no assurances whatsoever that it will receive any or a minimum volume of business or revenue, Work Orders, Estimates, Jobs, geographic territory rights or any other type of business opportunities whatsoever from Heave. In view of the foregoing, the Technician acknowledges that any investments or expenditures that it has made or may make upon agreeing to these terms are its sole risk.
4. Obligations and Covenants.
Throughout the Term, the Technician shall:
4.1. Comply with all applicable federal, state, county, local laws, statutes, orders, ordinances, regulations, rules, codes (including building and safety codes), permits, and any requirements of the governing authority with jurisdiction over the Job, including court orders (the "Applicable Laws") pertaining to the performance and safety of the Job;
4.2.1 Maintain all necessary licenses, certifications, and permits to perform the repairs,
restorations, and services as required by Applicable Laws for all Jobs in which the Technician undertakes;
4.2.2 Not request or require Customers to obtain permits unless permissible under Applicable Laws and authorized to do so in writing by Heave:
4.2.3 Update Heave, pursuant to the notice provisions set forth in Heave’s Terms and
Conditions, if any information provided to Heave by the Technician via the Heave Platform, including in Technician’s application, has changed or is expected to change;
4.2.4 Provide all documents and information requested by Heave in accordance with the
terms and conditions of the Heave Platform, this Agreement, and the Ancillary Documents;
4.2.5 Ensure that all Affiliated individuals comply with all rules and requirements of the
Heave Platform, including where applicable, the terms set forth in this Agreement, all
Ancillary Documents and Applicable Laws;
4.2.6 Cooperate with Heave in investigating and resolving any complaint or complaints that Heave receives regarding the Technician or any Affiliated Individual in connection with use of the Heave Platform or conduct in performance of any services on any Jobs; and
4.2.7 Not make any statement or representation which is false, fraudulent, or in violation of any state or federal law, regulation, or duty.
5. Heave's Obligations, Representations, and Warranties
5.1 Heave's Representations and Warranties. Heave represents and warrants to the Technician the following:
5.1.1 All information provided by Heave to the Technician is true and accurate as of the Effective Date
5.1.2 Heave has all requisite authority to enter into this Agreement and the present capability to satisfy its terms.
5.2 Obligations and Covenants. Throughout the Term, Heave shall:
5.2.1. Make timely payments to the Technician according to the procedures set forth in Section 7.
5.2.2 Make all commercially reasonable efforts to maintain the Heave Platform and provide technical support to the Technician. Such support shall include, but is not limited to, assisting in the creation of a Technician Account, the retrieval of login and password information, and the navigation of the interface of the Heave Platform. Notwithstanding the provisions of this Section 5, Heave reserves the right to upgrade, alter, change, or provide functionality comparable substitutes to the Heave Platform;
5.2.3 Retain all records, according to commercially reasonable standards, which pertain to the relationship of the parties;
5.2.4 In connection with any obligation or activity set forth in this Agreement: (a) comply with, or cause compliance with, all laws, rules, and regulations applicable to Heave's performance hereunder; (b) cause all of its employees, agents, and representatives to comply with the aforementioned laws, rules, and regulations; and (c) not make any statement or representation which is false, fraudulent, or in violation of any state or federal law, regulation, or duty.
6. Workmanship Warranty Issued to Heave
6.1 Terms. For every Job commenced and completed, the Technician shall issue to Heave for whom the repair or service was subcontracted, a workmanship warranty, the terms of which shall be consistent with the industry standard for warranty repairs: the Technician must warrant its work to be free of defects in material or poor workmanship for a period no less than three (3) months or five hundred (500) hours, starting from the date the machine is put back into service.
6.2 Obligation to Heave. The Technician acknowledges that a failure to provide, honor,
and satisfy the warranty required under this Section 6, will cause substantial harm to Heave's marketplace reputation and goodwill. As such, failure to provide, honor, and satisfy the terms of the warranty required by this Section 6 shall be deemed a breach of this Agreement. Notwithstanding the foregoing, the Technician hereby acknowledges and agrees that Heave shall have no liability for ensuring or guaranteeing performance by the Technician for any work performed for a Job or the warranty issued pursuant to Section 6.
7. Payment and Fees
7.1 Payment Terms. All payments, fees, and charges owed to the Technician on a completed Job and to be paid through the Heave Platform shall be subject to the payment terms and conditions set forth in the applicable Work Order and the Heave Guidelines which may be updated from time to time by Heave pursuant to Section 2 above.
7.2 Contingent Upon Job Completion. The Technician shall not be owed, and Heave shall not deliver, any payment in connection with any Work Order until the Job set forth in the applicable Work Order is complete. Heave shall remit payment to the Technician within 15 Business Days of a Job being completed.
7.3 Chargeback and Payment Reversals. If Heave incurs costs or expenses (i) to rectify actual or alleged substandard or faulty workmanship performed by the Technician and/or its Affiliated individuals to satisfy a Customer, (ii) to repair damages actually or allegedly arising from or relating to Customer Job(s) fulfilled by the Technician and/or its Affiliated individuals, (iii) to pay any costs or expenses, including without limitation reasonable attorney's fees, arising from or relating to the conduct or performance of the Technician or any Affiliated individuals, (iv) if the Technician or Affiliated Individuals violates any of the requirements set forth herein that are, or may be deemed in the future, violations that provide a penalty to be imposed against the Technician, such as expenses, regardless of the manner incurred, will be deducted as a "chargeback" from payments otherwise due to the Technician from Heave. Further, if Heave incurs any costs or expenses or processes any payment refund to a Customer under any scenario set forth in the preceding paragraph and the Technician has previously received payment from Heave for the Work Order(s) associated with the incurred cost, expense or Customer refund, there are two possible remedies: (1) the Technician will reimburse Heave for the price of labor for the Job in question, or (2) further repair work will be applied towards the outstanding credit until it is repaid in full.
7.4 Setoffs. Heave shall have the right at any time to set-off any amounts due to the Technician against any amounts owed by the Technician or its Affiliated individuals with respect to other Work Orders fulfilled by the Technician or any other contractual agreement between the parties hereto, unless such set-off violates the Applicable Laws.
8. Independent Contractor/Subcontractor Relationships.This Agreement is not
intended to create, and does not create any partnership, joint venture, agency, fiduciary,
employment, or other relationship between the parties, beyond the relationship of independent parties to a commercial contract. Neither party is, nor will either party hold
itself out to be, vested with any authority to bind the other party contractually, or to act on behalf of the other party as a broker, agent, or otherwise. The subcontracted Technician shall perform the services required by this Agreement under the general direction of Heave, subject to approval of the Customer or other specified representative of Customer, so Heave may fulfill obligations to the Customer. Heave shall have no right to, and shall not, control the manner or prescribe the method the Technician uses to fulfill services on accepted Jobs, subject to the terms of this Agreement and Ancillary Documents. The Technician shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Job, subject to the terms of this Agreement and the applicable Customer specifications. The parties acknowledge that any provisions of this Agreement reserving certain authority in Heave have been inserted solely to achieve compliance with federal, state, or local laws, rules, and interpretations thereof.
9. Non-Exclusivity. This Agreement is non-exclusive, and Heave, without notice may use other service providers to perform the same or similar Jobs described in this Agreement. Similarly, the Technician may perform like Jobs for others, so long as the performance of such other services does not impair the Technician's ability to fulfill its obligations under this Agreement or any Work Order accepted or otherwise cause the Technician to breach this Agreement. The Technician understands that it shall not during the term of this Agreement use its relationship with Heave (or the Confidential Information gained there from) to divert or attempt to divert any business from Heave to a company that provides services in competition with Heave.
10. Confidentiality; Publicity; Ownership of Works.
10.1 Confidentiality. The Technician acknowledges that performance under this Agreement will give the Technician and its Affiliated Individuals access to confidential,
proprietary, and trade secret information of Heave and/or its service providers, employees, agents, business and contractual relationships, as well as, Customer information (collectively, "Confidential Information"). The Technician agrees that it will maintain all Confidential Information in strict confidence and not disclose or use Confidential Information other than as necessary to fulfill its obligations under this agreement. The Technician will inform its Affiliated Individuals about the confidential and proprietary nature of the Confidential Information to which they may be exposed and will ensure that Affiliated Individuals (i) keep Confidential Information strictly confidential, and safeguard and protect the Confidential Information from theft, piracy, or unauthorized access in a commercially reasonable manner, (ii) are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein, and (iii) comply with all terms of this Section 10. "Confidential Information" shall include without limitation, information disclosed to, made available to, or obtained by the Technician in connection with this Agreement, and all material and reports prepared for Heave hereunder, including all information (whether or not specifically labeled or identified as confidential), in any form or medium, that is disclosed or learned by the Technician in the performance of Jobs related to this Agreement and that relates to the business, services, research or development of Heave or its service providers, suppliers, agents, representatives, Customers or participating insurer.
Confidential information further includes, without limitation, the following:
(a) Internal business information (including information relating to the strategic and staffing plans and practices, marketing, promotional sales plans, practices, and programs, training practices and programs, costs, rate and pricing structures, and accounting and business models);
(b) Identities of, individual requirements of, specific contractual arrangements with, and
information about, Heave's service providers, suppliers, Customers, and participating insurers and their confidential, proprietary, or personal information;
(c) Compilations of data and analyses, processes, methods, techniques, systems formulae, research, records, reports, Customer lists, manuals, documentation, models, data, and databases relating thereto;
(d) Computer software and technology (including operating systems, application software, interfaces, utilities, modifications, updates and their overall organization and interaction), documentation, data and databases, and any account identification and passwords Heave provides you for access to the Heave Platform; and,
(e) Trade secrets, trade dress, ideas, inventions, designs, developments, devices, methods, processes, and systems (whether patentable or copyrighted, and whether reduced to practice or fixed in a tangible medium).
10.2 Required Disclosures. If the Technician receives a subpoena or other validly issued administrative or judicial process demanding information about this Agreement and/or Confidential information, the Technician must immediately notify in writing and tender the process for defense to Heave. Unless it has been timely limited, quashed, or extended, the Technician will thereafter be entitled to follow such process to the extent required by law. If requested, the Technician will cooperate in the response to such process or any demand related thereto.
10.3 Injunctive Relief. The Technician acknowledges and agrees that in the event of the Technician’s or any Affiliated Individual’s breach of the confidentiality provisions of this Section 10, Heave will suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, Heave shall be entitled to a preliminary and final injunction, without the necessity of posting any bond or undertaking in connection therewith, to prevent any further breach of these confidentiality obligations or further unauthorized use of Confidential Information. This remedy is separate and apart from any other remedy that Heave may have.
10.4 Publicity. Technician will not issue any press release or other statement or otherwise disclose (in whole or in part) the contents or substance of this Agreement or the parties' activities under this Agreement without first obtaining the express prior written consent of Heave. Any such consent must be requested at least thirty (30) calendar days before the intended date of the release or communication. Technician will immediately inform Heave if it believes that the issuance of any press or other media release is required by operation of Applicable laws.
10.5 Ownership of Works. Except as otherwise agreed by the parties in writing, Heave or its assignee own and have all right, title, and interest in all ideas, concepts, plans, processes (including, without limitation, sales and marketing processes), creations, trademarks, logos, intellectual property, and other work products (collectively, the "Works") produced by Heave, at Heave's request, or by the Technician or any Affiliated individual for Heave in furtherance of the parties' obligations under this Agreement. Technician hereby assigns to Heave ownership of any such Works and agrees to cooperate fully with Heave and execute documentation as Heave may request to establish, secure, maintain, or protect Heave's rights with respect to the Works.
10.6 Information and Profile. As part of entering this Agreement and operating as a
Technician on the Heave Platform, it is understood and agreed that the Technician and any Affiliated individuals are required to provide information to Heave. Such information includes, without limitation, name, addresses, telephone and/or mobile numbers, email, and, if applicable, business name; Technician business principal or owner information; onboarding dates; state and local licensing and registration information; background check approvals, badge numbers and photographs; service types and capabilities; business descriptions; insurance information; project and work photographs; project, Job and service details; Customer reviews; and business and personal testimonials (collectively "Technician Information"). All Technician Information may be used by Heave for its business purposes, including without limitation, the creation of a Technician profile on the Heave Platform. The Technician expressly agrees that Heave may provide Technician Information to Customers; may use Technician Information in any way necessary to facilitate actual or potential Jobs and/or enter into Prime Agreements with Customers; and may share Technician Information with any of its affiliated companies, post such information on affiliate websites, and otherwise make such information publicly available. Heave does not share Technician Information which contains Personally Identifiable Information ("PII") without consent. Heave's collection and use of PII in connection with the Heave Platform is provided in Heave's Privacy Policy located at www.heaveapp.com/privacy. Technician warrants that all Technician information provided to Heave by the Technician and/or its personnel is accurate, up to date, and in compliance with all Applicable Laws. Technician warrants that it has the right to provide all Technician Information to Heave, has obtained any and all necessary consents from third parties, and that such information does not violate any rights of any third party. Heave reserves the absolute right and discretion to utilize or discard any
Technician Information.
11. Indemnification
11.1 To the fullest extent allowed by Applicable Laws, the Technician shall defend, indemnify, and hold Heave, the Customer(s), and participating insurer and any of their respective past and present owners, officers, shareholders, directors, employees, and agents (collectively “Indemnitees”) harmless from and against any and all claims, allegations, losses, liabilities, causes of action, lawsuits, proceedings, judgments, fines, penalties, damages, costs, and expenses, including attorney, expert, and consultant fees and legal expenses (collectively, the “Claims”) for arising out of or relating to this Agreement, including any such Claims for personal injury (including death) and property damage relating to or arising out of any Job(s) and/or assigned Work Order performed by Technician or any of its Affiliated Individuals, including anyone for whom Technician is liable and their respective employees and agents (the “Indemnitors”); provided, however, the Indemnitors shall have no obligation to indemnify, defend or hold harmless the Indemnitees in the event that such claims, damages, losses, and expenses are caused by the sole, active negligence of an Indemnitee.
11.2 By way of example and not limitation, the Technician shall defend, indemnify, and hold the Indemnitees harmless from and against any and all Claims to the extent arising out of or relating to the following:
11.2.1 The inaccuracy, untruthfulness, or breach of any representation, covenant, warranty, or any other agreement set forth in this Agreement by the Indemnitors.
11.2.2 Personal injury (including without limitation, death and emotional distress or injury) arising out of or relating to acts or omissions of the Indemnitors while performing services pursuant to any Job(s) set forth in the applicable Work Order.
11.2.3 Property loss or damage arising out of or relating to acts or omissions of the
Indemnitors while performing services pursuant to any Job(s) set forth in the applicable
Work Order.
11.2.4 Noncompliance by the Indemnitors with any Applicable Laws.
11.2.5 Any hazardous material (as that term is defined by applicable laws) brought to the Customer(s)’ property or released by the Indemnitors.
11.2.6 Infringement of the intellectual property, proprietary, or other rights of any third party by the Indemnitors.
11.2.7 The failure of the Indemnitors to perform inspections or obtain and maintain licenses or permits required by Applicable Laws.
11.2.8 The supply of false or inaccurate background information or the gathering and/or use of background investigation information.
11.2.9 Taxes asserted or levied against Heave resulting from services that are the responsibility of the Technician, any Affiliated Individual or any Indemnitor.
11.2.10 The failure of the Indemnitors to comply with Applicable Laws relating to immigration.
11.2.11 The unauthorized disclosure of Confidential Information by the Indemnitors.
11.2.12 Any Encumbrance resulting from Indemnitors, whether valid or not.
11.2.13 Any breach of this Agreement or an accepted Work Order.
11.2.14 Any claim by Technician or by or on behalf of Indemnitors claiming an employment or other relationship with the Technician and/or Heave, including any compensation or benefits of any kind, including base wages, bonuses, health and welfare benefits (by agreement, plan, statute or otherwise), pension benefits, or severance or termination pay.
11.3 Legal Limitations. It is agreed that with respect to any legal limitations resulting from Applicable Laws now or hereafter in effect and affecting the validity and enforceability of the indemnification obligation under this Section 11, such legal limitations are made a part of the indemnification obligation to the minimum extent necessary to bring this Section 11 into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. The Technician’s obligations under this Section 11 shall not be limited, waived, or excused by the payment of any damages, benefits, expenses, or compensation under any employee death or disability statute, including worker’s compensation, employer’s liability, employee benefit, or other such act.
11.4 Right to Assume Defense. The duty to defend under this Section 11 is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of Technician or any Indemnitor. The duty to defend arises immediately upon presentation of a Claim by any party and written notice of such Claim being provided to Technician. Technician’s obligation to indemnify and defend under this Section 11 will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the Indemnitees for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations. The duty to defend shall include the following obligations:
11.4.1 Inform the Indemnitees in writing about all material information pertaining to a third party Claim;
11.4.2 Inform the Indemnitees in writing of the date of any mediation, arbitration, trial, or
settlement conference relating to a Claims as soon as possible after it receives such information;
11.4.3 Choose defense counsel that is reasonably satisfactory to the Indemnitees;
11.4.4 Provide Indemnitees with copies of all discovery requests within five (5) days of any Indemnitor’s receipt of same;
11.4.5 Provide the Indemnitees with copies of all pleadings, discovery responses, settlement proposals and/or any other material documents relating to the Claim before finalizing or filing to allow the Indemnitees the opportunity to provide comments; and
11.4.6 Inform the Indemnitees of the outcome of any mediation, arbitration, motion, trial,
settlement, or any other matter from which appeal rights could arise.
11.5 No Settlement Without Consent. No Indemnitor will enter into any settlement or
compromise of a claim without first obtaining the Indemnitees’ prior written consent.
11.6 Indemnification in Addition to Insurance. The presence or absence and/or applicability or non-applicability of the Technician’s insurance coverage does not in any way limit the Technician’s obligation to indemnify, defend, and hold the Indemnitees harmless pursuant to the terms of this Section 12.
11.7 Conflicts of Interest. If counsel retained by the Technician has a conflict of interest or such conflict of interest arises in connection with a Claim, Indemnitees shall be entitled to retain separate counsel, at Technician’s expense, to defend Indemnitees. Technician shall not seek to disqualify counsel due to an alleged conflict of interest where a single counsel represents multiple Indemnitees in connection with a Claim, and Technician hereby waives any alleged conflict of interest allegations relating to the same.
12. Intellectual Property. Heave shall own all intellectual property rights in the Heave
Platform absolutely and in their entirety. These rights include database rights, copyright,
design rights (whether registered or unregistered), trademarks (whether registered or
unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Heave Platform are the property of their respective owners. The Technician acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided to us are non-confidential and shall become the sole property of Heave. Heave shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to the Technician. Technician hereby assigns ownership of such Submissions to Heave. Heave and other Heave logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Heave in the United States and/or other countries (collectively, the “Heave Marks”). If you provide services as a Technician, Heave grants to you, during the Term of this Agreement, and subject to compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Works and the Heave Marks solely on the Heave stickers/decals, apparel, and any other Heave-branded items provided by Heave directly to you in connection with fulfilling Jobs (“IP License”). The IP License is non-transferable and non-assignable, and you shall not grant to any third-party any right, permission, license or
sublicense with respect to any of the rights granted hereunder without Heave’s prior written permission, which Heave may withhold in its sole discretion. The Heave logo (or any Heave Marks) may not be used in any manner that is likely to cause confusion, including but not limited to: use of a Heave Mark in a domain name or Heave referral code, or use of a Heave Mark as a social media handle or name, avatar, profile photo, icon, favicon, or banner. The Heave Technician may identify itself as a technician on the Heave Platform, but may not misidentify yourself as Heave, an employee of Heave, or a representative of Heave. The Technician acknowledges that Heave is the owner and licensor of the Works and the Heave Marks, including all goodwill associated therewith, and that your use of the Works, Heave logo (or any Heave Marks) will confer no interest in or ownership of the Works or Heave Marks in you but rather inures to the benefit of Heave. The Technician agrees to use the Heave logo strictly in accordance with Heave’s Brand Guidelines, as may be provided in Ancillary Documents and revised from time to time, and to immediately cease any use that Heave determines to nonconforming or otherwise unacceptable.
Technician further agrees that it will not:
(1) Create any materials that use the Heave Marks or any derivatives of the Heave Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Heave in writing;
(2) Use the Heave Marks in any way that tends to impair their validity as proprietary
trademarks, service marks, trade names or trade dress, or use the Heave Marks other than in accordance with the terms, conditions and restrictions herein;
(3) Take any other action that would jeopardize or impair Heave’s rights as owner of the Heave Marks or the legality and/or enforceability of the Heave Marks, including, challenging or opposing Heave’s ownership in the Heave Marks;
(4) Apply for trademark registration or renewal of trademark registration of any of the Heave Marks, any derivative of the Heave Marks, any combination of the Heave Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Heave Marks;
(5) Use the Heave Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this IP License may result in immediate termination of the IP License, in Heave’s sole discretion, a takedown request sent to the appropriate ISP, or social media platform, and/or a Uniform Domain- Name Dispute-Resolution Policy Proceeding (or equivalent proceeding). If you create any materials (physical or digital) bearing the Heave Marks (in violation of this Agreement or otherwise), the Technician agrees that upon their creation Heave exclusively owns all right, title and interest in and to such materials, including any modifications to the Heave Marks or derivative works based on the Heave Marks or Heave copyrights. The Technician further hereby assigns to Heave any interest or right it may have in such materials to Heave and further agrees to provide information and execute any documents as reasonably requested by Heave to enable Heave to substantiate such assignment.
13. Insurance
13.1 Insurance Coverage Requirements. Technician shall, and shall cause its applicable Affiliated Individuals to, provide, pay for, and maintain at all times while performing services for Heave, the insurance set forth in this Section 13. The following coverage, terms and limits are minimum requirements (hereinafter the “Required Insurance”):
13.1.1 Commercial General Liability:
(a) $1,000,000 each occurrence limit,
(b) $100,000 damage to rented premises each occurrence limit,
(c) $5,000 medical expenses limit (any one person),
(d) $1,000,000 personal and advertising injury limit,
(e) $2,000,000 general aggregate limit (per project or as approved by Heave),
(f) $2,000,000 products-completed operations aggregate limit or equivalent approved by
Heave, or current limits carried by Technician, whichever are greater;
13.1.1.2 ISO or comparable occurrence form shall be used (Occurrence Form #CG 00 01 12 07 or equivalent). For avoidance of doubt, modified occurrence and claims made forms are not acceptable.
13.1.1.3 Coverage shall be for bodily injury and property damage, including products liability/completed operations coverage (including any product manufactured or assembled), premises operations, blanket contractual liability (for this Agreement), broad form property damage, per project aggregate, personal and advertising injury, independent contractor’s liability, mobile equipment, elevators, owner’s and contractor’s protective liability, damage from explosion, collapse and underground hazards (note that no “XCU” exclusions are acceptable), (note that no care, custody, or control exclusion are acceptable), and cross-liability and severability of interest clauses.
13.1.1.4 General and completed operations liability coverage shall continue to apply to “bodily injury” and to “property damage” occurring after all work on the Job(s) site of the
covered operations to be performed by or on behalf of the Additional Insureds has been
completed and shall continue after that portion of the Job(s) out of which the injury or damage arises has been put to its intended use and shall continue during the warranty
period for Technician’s Job(s) or for the period of time for which the Technician may be held legally liable for its Job(s), whichever is greater.
13.1.1.5 A provision that such insurance afforded by the policy for the benefit of the Additional Insureds shall be primary and non-contributory to any insurance or self-insurance maintained by the Additional Insureds.
13.1.1.6 An endorsement affording thirty (30) days prior written notice to Heave by certified mail in the event of cancellation or non-renewal of coverage.
13.1.1.7 A deductible or self-insured retention of not more than $10,000 as to Technician (unless approved in writing by Heave) and no deductible or self-insured retention as to any Additional Insured.
13.1.1.8 No exclusionary language or limitations relating to soils subsidence or earth movement of any kind regardless of cause.
13.1.1.9 If insurable by law, no exclusionary language or limitations relating to punitive or exemplary damages, fines or penalties.
13.1.1.10 No exclusionary language or limitations that are applicable to any Additional Insured that are not applicable to the named insured.
13.1.1.11 A provision that defense costs are paid in addition to and do not deplete any policy limits.
13.1.1.12 No exclusionary language or limitations relating to mold, EIFS, pollution or any other microbial contamination coverage. If Heave so elects, Technician shall purchase mold and other microbial contamination coverage at Technician’s sole expense.
13.1.2 Workers’ Compensation / Employer’s Liability. As independently required of
Technician under Applicable Laws, if applicable.
13.1.3 Comprehensive Automobile Liability
13.1.3.1 Comprehensive automobile liability insurance must be maintained on an occurrence basis covering all non-owned and hired vehicles for limits of liability equal to $500,000 combined single limit.
13.1.4 Umbrella Liability or Excess Liability. Heave may require such policies in certain circumstances with reasonable advance notice to Technician.
Professional Liability. Heave may require such policies in certain circumstances with
reasonable advance notice to Technician.
13.2 General Insurance Terms
13.2.1 Rating. Insurance carriers must have a “Best’s Rating” and a “Financial Size Category” of a minimum of A-6 and must be admitted in the state where the Job is being performed.
13.2.2 Inclusion. The Required Insurance will cover the Additional Insured (see definition below). Further, the Required Insurance shall become and be a part of any purchase order or separate contract issued by Heave to Technician as though fully set forth in said purchase order or separate contract.
13.2.3 Certificates of Insurance. Concurrently with the application to become a Technician, Technician will deliver to Heave original certificates of insurance and endorsements showing the Required Insurance to be in force. Certificates of insurance alone, without the requisite endorsements, are not acceptable to satisfy the provisions of the Required Insurance. Upon the request of Heave, Technician will provide Heave with certified copies of all policies as well as any subsequent policies and endorsements which Technician is required to procure and maintain. Technician shall furnish Heave with renewal certificates and Additional Insured endorsements for commercial general liability prior to expiration of such insurance, for a period of ten (10) years after completion of all works of improvement on the Job(s) site. Such continuing insurance will comply with the requirements set forth in this Section 13.
13.2.4 No Limitations. The insurance requirements set forth in this Section 13 will in no way limit Technician’s liability arising out of the Job(s). The inclusions, coverage and limits set forth in this Section 13 are minimum inclusions, coverage and limits. The required minimum policy limits set forth in this Section 13 will not be construed as a limitation of Heave’s rights under any policy with higher limits, and no policy maintained by Technician will be endorsed to include such a limitation. Nothing contained in this Section 13 will be construed as limiting the type, quality or quantity of insurance coverage that Technician should maintain. Technician will be responsible for determining appropriate inclusions, coverage and limits which may be in excess of the minimum requirements set forth in this Section 13.
13.2.5 Compliance. The failure of Technician to fully and strictly comply at all times with the insurance requirements set forth in this Section 13 will be deemed a breach of the Agreement. In such event, Heave shall have the right, but not the duty to provide such insurance and deduct from any amounts due or to become due to Technician for any and all premium or costs Heave incurs as a result thereof. Equivalent insurance coverage must be obtained from each of the Technician’s subcontractors and suppliers, if any, before permitting such subcontractors or suppliers on the site of the Job(s). Otherwise, such insurance for Technician’s subcontractors and suppliers must be included within Technician’s insurance policies.
13.2.6 Notification. Technician will immediately notify (or cause its insurers or insurance broker to notify) Heave of receipt by Technician of any notice of cancellation or rescission received from an insurance carrier referring to or relating to a policy which names Technician, its parent, subsidiary or affiliated companies or their officers, directors or employees as insureds or Additional Insureds or which may otherwise impact the ability of Technician to fully perform its obligations hereunder.
13.2.9 Assignment. To the fullest extent permitted by law, if Technician is out of business or otherwise unavailable at the time a claim is presented to Heave, Technician hereby assigns to Heave all of its right, title and interest (but not any liabilities or obligations) under any applicable policies of insurance. The foregoing provision will not apply to those policies where there is an express prohibition against assignment.
13.2.10 Independent Obligation. The Required Insurance set forth in this Section 13 is
independent from all other obligations of Technician under the Agreement, including, without limitation, all indemnification provisions, and will apply whether or not required by any other provision of the Agreement.
13.2.11 Product Completed Endorsement. Product-completed operations endorsements are required. To avoid all doubt, the insurance coverages set forth herein and further detailed in the Technician Guidelines are considered aspects of the Minimum Eligibility Criteria enabling access to the Heave Platform.
13.2.12 Risk of Loss. As of the Effective Date and continuing throughout the Term, each party to this Agreement will be responsible for risk of physical or actual loss of and
damage to any property, equipment, merchandise, or any other items or information in
its possession or under its control. As between Technician and Customer, the risk of
loss shall not pass to Customer until the Job has been completed and accepted by the
Customer. Risk of loss shall revert to Technician upon Customer’s rejection of defective
or non-conforming services, even if such equipment, merchandise or any other item is
stored at property owned by Customer.
13.12 Waiver of Subrogation. With respect to the insurance required to be furnished
by this Agreement, Technician for itself and on behalf of its insurers, to the fullest extent
permitted by law without voiding the Required Insurance, hereby waives and releases
Heave and Customers from liability for loss, damage or loss of property at the Job(s)site, which loss or damage is covered by such insurance, and with respect to such loss or injury arising from work through the Heave Platform, irrespective of Heave’s and/or Customer’s negligence which may have contributed to or caused such loss, to the extent such damages are covered by Technician’s policies of insurance or are required to be covered by the Required Insurance. This provision is intended to waive fully for the benefit of Heave and the other Additional Insureds any rights and/or claims which might give rise to a right of subrogation in favor of any insurance carrier issuing the Required Insurance or any other insurance (including any first party coverage) maintained by Technician. Technician will obtain a waiver of any subrogation right that its insurers may acquire against the Additional Insureds by virtue of payment of any such loss covered by such insurance.
13.13 Additional Insured. All Technician insurance coverages shall cause Heave and the Customer(s) to be named as additional insureds (the “Additional Insured”). The Job(s) description and/or description of operations on all certificates, endorsements and other insurance documentation will read “All Work Performed for the Additional Insureds.” Such certificates shall indicate the coverages above as specified, and shall name Heave and the Customer(s) (and any other person who the Technician shall agree in a written contract to make an Additional Insured) as Additional Insureds on a primary, non-contributory basis for ongoing and completed operations, and as specified under the respective coverage required by this Agreement. Technician shall provide Additional Insured Endorsement ISO Form or their equivalent, acceptable to Heave, at no expense to Heave.
13.14 Certificates of Insurance. The Technician shall furnish certificate of insurance(s)
evidencing coverage as outlined above prior to the start of any Job(s) and annually thereafter (collectively, the “Certificates of Insurance”). The absence of such Certificates of Insurance does not relieve Technician of its obligations to obtain and maintain insurance coverages throughout the term of this Agreement.
14. Disclaimers and Limitations of Liability
14.1 Liability for actual damages only. Except in connection with Technician’s breach of confidentiality, fraud, gross negligence, willful misconduct, or any indemnification obligation owed herein by Technician, each party hereby waives any right to claim against the other party for incidental, indirect, exemplary, punitive, special or consequential damages, including without limitation, damages for lost opportunities, lost profits from transactions pursuant to this agreement or lost savings, arising out of or relating to acts or omissions under this agreement, regardless of the form of action, and even if reasonably foreseeable or if such party has been advised of the possibility of such damages.
14.2 Heave’s maximum liability. Heave’s maximum liability to Technician under this
agreement (regardless of cause or form of action, whether in contract, tort, or otherwise)
will be limited to the total undisputed amount owed Technician by Heave in payment for
Technician’s fulfillment of its obligations under this agreement. Heave’s liability under this Agreement shall terminate one (1) year from the occurrence of the event giving rise to a claim, and Technician agrees to bring any type of claim against Heave within that one (1) year time period. The Technician hereby waives any right under any statute of limitations to bring any claim after such one (1) year time period.
14.3 Claims against Heave only. Technician agrees that its sole recourse for claims arising from or relating to this Agreement and/or any jobs undertaken will be against only Heave or Heave’s successors and assigns. In no event will the shareholders, directors, officers, employees, agents, participating insurers, or Customers of Heave be personally liable or named as parties in any action by Technician. Technician further agrees that it will stipulate to a dismissal with prejudice of any claim brought contrary to this section.
14.4 General.
14.4.1 The Technician’s participation in the Heave Platform is at its sole risk. The Technician is responsible for determining whether to participate in the Heave Platform.
14.4.2 Except as otherwise expressly provided in this Agreement, Heave, its affiliated companies, the Heave Platform, any person providing services to Heave, and their respective shareholders, officers, directors, agents, managers, employees and other
representatives expressly disclaim all warranties of any kind, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
14.4.3 Except as otherwise expressly provided in this agreement, Heave makes no representation or warranty that (i) the Heave Platform will meet the Technician’s requirements, (ii) the Heave Platform will be uninterrupted, (iii) the results that may be
obtained from participation in the Heave Platform will be beneficial to the Technician, or
that (iv) any errors in any of the services, information, or other material obtained by the
Technician through the Heave Platform will be corrected.
14.4.4 Any material downloaded or otherwise obtained by the Technician through its
participation in the Heave Platform is done at the Technician’s discretion and risk. The
Technician will be solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by the Technician from any Heave Platform user or through the Heave Platform shall create any warranty not expressly stated in this Agreement.
14.4.5 Except as set forth herein, Heave shall not under any circumstances be liable for any damages of any kind arising out of, in connection with, or relating to, the Technician’s participation in the Heave Platform or the Technician’s dealings with participating insurers or Customers in connection with the Heave Platform, including any liability (i) as a publisher of information, (ii) for any incorrect or inaccurate information, (iii) for any unauthorized access to or disclosure of the Technician’s transmissions or data, (iv) for statements or conduct of any participating insured or any third party, or (vii) for any other matter relating to the Heave Platform. This is a comprehensive limitation of liability that applies to all damages of any kind, including any direct, indirect, special, incidental or consequential damages (including damages for loss of business, loss of profits, loss of goodwill, loss of use, loss of data, cost of procuring substitute goods, services or information, litigation or the like), whether based on breach of contract, breach of warranty, tort (including negligence) or otherwise, even if an individual advises of the possibility of such damages. The limitations of liability set forth herein are fundamental elements of the basis of the bargain between Heave and the Technician. The information and services offered in connection with the Heave Platform would not be provided without such limitations. Some jurisdictions do not allow the disclaimer of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above disclaimers, limitations and exclusions may not apply to the Heave network service provider. In such jurisdictions, the disclaimer and the
limitations and exclusions of liability are applicable to the fullest extent permitted by law.
2025-01-24
