(referred to in this document as “Terms of Service”)
These Terms of Service were last updated on 8 DEC 2022
4707 W Clear Avenue
Tampa, Florida 33629
Your access and use of the Services constitutes your agreement to be bound by this Agreement. If you do not agree to the Terms, you may not access or use the Services. The Terms, together with any Supplemental Terms (as defined below), expressly supersede prior agreements or arrangements with you, and supersede content or information you read or have access to at other places, such as our website, emails, or applications. Heave may immediately terminate this Agreement or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason or no reason.
Supplemental terms or policies applicable to any particular Service (“Supplemental Terms”) will be disclosed to you. Supplemental Terms may include terms and conditions of any particular event, activity, program or promotion. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over these Terms in the event of a conflict with respect to the applicable Service(s).
Heave may amend the Terms from time to time. Amendments will be effective upon Heave's posting of such updated Terms or such amended Supplemental Terms. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
By accessing and using the Services, you represent and warrant that: (i) you are at least 18 years old and are a legal adult in the jurisdiction in which you reside; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the Terms, and that you will so abide. If you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement. The Services are not available to anyone under 18 years of age, or to any individual whose account has been terminated. Your account may not be used for Services to be performed for another person.
The Services constitute a technology platform including websites and mobile applications (the “Heave Platform”) that enables users to access a network of independent third party heavy equipment service providers (mechanics, technicians, or other independent contractors) (“Technicians”), and/or to arrange for equipment inspection, diagnosis, maintenance, repair, or related services (“Equipment Services”). WE DO NOT PROVIDE EQUIPMENT SERVICES, AND WE ARE NOT THE EMPLOYER OF ANY THIRD PARTY PROVIDER. You acknowledge that we do not supervise, direct, or control a Technician's work or Services performed in any manner. A Technician provides services to you as an independent contractor, and is not an employee, joint venture, partner, agent, or franchisee of Heave for any purpose whatsoever.
License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to access and use the Services subject to the Terms of this Agreement. Any rights not expressly granted herein are reserved by us.
Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by us; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Ownership. The Services and all rights herein are and shall remain our property. Neither these Terms nor your use of the Services convey or grant to you any rights in or related to the Services, except for the limited license granted above, or to use or reference in any manner our company names, logos, product and service names, trademarks or services marks. All content appearing on the YourMechanic Platform is our property or the property of our partners and is protected by international copyright laws. Certain names, graphics and logos are trademarks, service marks, or trade dress (together, “Marks”) of YourMechanic. Our Marks may not be used for any purpose except pursuant to our Trademark Usage Policy. All other Marks are the property of their respective owners and may not be used without their prior written consent. CASTROL and the Castrol logo are trademarks of Castrol Limited, used with permission. EXXONMOBIL and ExxonMobil logo are trademarks of ExxonMobil Limited, used with permission.
User Accounts. In order to use most aspects of the Services, you must register for and maintain a user account ("Account"). Account registration requires you to submit certain personal information, such as your name, email address, company name, address, machine information, and/or mobile phone number, and/or at least one valid payment method (e.g., a credit card). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Services or Heave's termination of this Agreement. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. We are not liable for any loss that you may suffer through the use of your password by others. You must notify us immediately of any unauthorized use of your Account or of any other breach of security known to you with respect to Heave.
Scheduling a Job. To request an appointment for Equipment Repair Services (a “Job” and a “Service Request”), you may be asked to specify the type of service that you think is required, the location where you would like the Job to be performed, and the date and time that you would like the Job to take place. You agree that it is your responsibility to provide a suitable location for the Job, and to ensure that the Technician has proper access and permission, and is legally authorized to complete the Job at the location.
Once you submit a Service Request, we may provide you with a price and/or a list of possible Technicians along with their experience information and “rating” based on previous customer reviews (if applicable). We reserve the right to modify, add, or delete items and/or price at any time prior to billing you. If you have agreed with the Technician to modify, add, or delete items in the Job Request, or to reschedule a Job, you must notify us. When you reschedule a Job, you agree to do so through the Heave Platform.
You agree to treat Technicians courteously and lawfully, to provide a safe and appropriate working environment that is in compliance with all applicable laws and regulations, and to provide reasonable cooperation to enable Technicians to complete the Job. We do not control the availability of the independent Technicians on the Heave Platform. You acknowledge that your selected Technician may be unavailable from time to time, e.g. due to illness, or vacation.
Plastic, composite and rubber engine and cooling system components are often affected by age and temperature fluctuations and become fragile over time. Because of this, such parts can break or even disintegrate during procedures that involve their disassembly or handling. You understand that Heave will not be held liable for these types of component failures, and that in the event of such, Heave will provide you with a revised estimate to include the replacement of the failed component.
If you would like to receive the replaced vehicle parts upon completion of the Job, please email us at firstname.lastname@example.org, and, if applicable, you will be charged the core price for the replacement part and you will be responsible for proper disposal of such parts in accordance with all applicable laws, regulations and rules.
Communications. You expressly consent and agree to receive communications from us, including via e-mail, text message, calls, and push notifications, to the cellular telephone number you provided to us. You understand that you may receive communications generated by automatic telephone dialing systems and/or which will deliver pre-recorded messages sent by or on behalf of Heave or its affiliated companies, or Technicians, including operational communications concerning your Account, use of the Heave Platform or Services, updates concerning new and existing features on the Heave Platform, communications concerning promotions, and news concerning us and our Services. You may opt out of receiving text (SMS) messages from us at any time by texting the word STOP from the mobile device receiving the messages. You acknowledge that opting out of receiving text messages may impact your use of the Services. You agree to our use of a service provider to mask your telephone number when you call or exchange text messages with a Technician. During this process, we will receive and store data, including the date and time of the call or text message, the phone numbers, and the content of the text messages. You agree to our use and disclosure of this data for legitimate business purposes. We may send you confirmation and other transactional emails regarding the Services. We may also send you emails or text messages about services that we think might interest you ("Promotional Emails"). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting us.
Promotional Codes or Credits. We may create promotional codes or credits that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Technician's services, subject to any additional terms associated with each promotion ("Promo Codes"). You agree that Promo Codes: (i) must be used by the intended audience and for the intended purpose and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to Heave; (iv) may only be used pursuant to the specific terms that we established for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Heave reserves the right to interpret how the Promo Codes will be used, or to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that we determine or believe that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
User Content. We may permit you from time to time to submit, upload, publish or otherwise make available textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to us, you grant us a worldwide, perpetual, irrevocable, transferable, unrestricted, non-exclusive, absolute, royalty-free license, with the right to sublicense, to use, copy, modify, transmit, reproduce, exhibit, disclose, display, transform, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised, without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. Further, we shall be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including developing, manufacturing and marketing products and/or services incorporating any User Content. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant us the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor our use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by us in our sole discretion, whether or not such material may be protected by law. We may, but shall not be obligated to, review, monitor, or remove User Content, at our sole discretion and at any time and for any reason or no reason, without notice to you.
Network Access and Devices. You are responsible for obtaining the compatible hardware or devices and data network access necessary to use the Services. The Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications and we shall not be held liable for any such malfunction or delay.
You understand that use of the Services may result in charges to you for the Equipment Repair Services you receive from a Technician (“Charges”). Charges may include any applicable federal, state and local taxes. At the time you schedule a Job, we will record your preferred payment method information and validate your payment information. You authorize the payment of Charge(s) according to your preferred payment method information, or, if applicable, the payment of a cancellation fee if you cancel the Job and the payment of rescheduling fee if you reschedule the Job. You agree not to make any alternative payment arrangement with the Technician who performs the Job. While we will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom.
After you have received Equipment Repair Services obtained through your use of the Service, we will facilitate your payment of the applicable Charges on behalf of the Technician, as such Technician's limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Technician. Charges paid by you are final and non-refundable, unless otherwise determined by us. All Charges are due immediately. If your primary payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that we may, as the Technician's limited payment collection agent, use a secondary payment method in your Account, if available.
We reserve the right to establish, remove and/or revise Charges for any or all Vehicle Services at any time in our sole discretion. If a Technician changes the Vehicle Services needed, or adds additional Vehicle Services, you authorize the payment of updated or modified Charges. If the Technician determines that your car requires services other than the Vehicle Services you specified in your original Job Request or that the Technician is not able to perform such work, you may be charged a separate diagnosis fee.
Termination by Heave. We may terminate this Agreement or terminate or suspend your Account immediately at any time for any reason or for no reason upon notice to you. If we terminate or suspend your Account, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to pursue any available legal action. When terminating your Account, we may delete the Account and any information in it. You have no ownership rights to your Account.
Termination by You. You may terminate this Agreement by completely and permanently ceasing to use the Services (provided that there are no outstanding Services ordered under your Account). If you attempt to terminate this Agreement while there are still outstanding Services ordered under your Account, this Agreement shall not terminate until such Services have been performed or otherwise canceled as permitted by this Agreement.
Rescheduling of Service Requests by You. You may reschedule a scheduled Service Request at any time, subject to the following. If you cancel more than 48 hours before a scheduled Service appointment or Job, there is no reschedule fee. If you cancel within 48 hours of the scheduled start time for the Job or scheduled Service, you will be charged for a $15 reschedule fee. We reserve the right to establish, remove and/or revise our reschedule policy or reschedule fee at any time at our discretion.
Cancellation of Service Requests by You. You may cancel a scheduled Service Request at any time, subject to the following. If you cancel more than 48 hours before a scheduled Service appointment or Job, there is no cancellation fee. If you cancel within 48 hours of the scheduled start time for the Job or scheduled Service, you will be charged for a $29.99 cancellation fee. We reserve the right to establish, remove and/or revise our cancellation policy or cancellation fees at any time at our discretion.
Cancellation of Service Requests by Technicians. When a Technician cancels a scheduled Service Request, we generally notify you and make your Service request available for another Technician. However, we cannot guarantee that a canceled Job will be selected by another Technician and rescheduled or that the Job Request will be completed. Technicians reserve the right to refuse a Job Request. You hereby agree to hold us harmless from any liability that may result from the cancellation of a Job or refusal of a Technician to complete a Job.
There may be instances where, after a Technician has arrived at your location, the Technician finds that he or she is not able to successfully complete the Job, for reasons including, without limitation, that the Technician does not have access or permission to work on your vehicle at the location you provided, that the location is not fit for repair services (e.g., hill or uneven surface), or that the information you provided with respect to your machine is inaccurate or incomplete. In such instances, you may be charged a minimum fee or cancellation fee.
If you schedule a diagnosis Job with a Technician, he or she will first seek to diagnose the problem. In performing a diagnosis, he or she may go through a step-by-step process to rule out or confirm part failures through visual inspection and/or appropriate tests. Although Technicians use their experience in performing diagnoses, we cannot guarantee that any particular diagnosis will identify all of the problems with your machine (and/or solutions) during the first inspection. Sometimes, the only way to get to the root cause of a problem is to go through a process of elimination – that is, to replace a part suspected to be defective and then see whether the problem still exists.
Technicians may be subject to an extensive vetting process before they can register for and during their use of the Heave Platform, including a comprehensive criminal background check. Although we may perform background checks of Technicians, we cannot confirm that each Technician is who they claim to be and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Heave Platform. When interacting with Technicians, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don't know. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE HEAVE PLATFORM AND YOU HEREBY RELEASE HEAVE FROM ANY LIABILITY RELATED THERETO. WE WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE HEAVE PLATFORM.
THE SERVICE AND PARTS ARE MADE AVAILABLE ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY. YOU USE THE SERVICES ENTIRELY AT YOUR OWN RISK. WE DO NOT PROVIDE, AND SPECIFICALLY DISCLAIM, ANY REPRESENTATION OR WARRANTY OF ANY KIND TO YOU OR ANY OTHER PERSON OR ENTITY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY (I) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) OF INFORMATIONAL CONTENT OR ACCURACY; (III) OF NON-INFRINGEMENT; (IV) OF QUIET ENJOYMENT; (V) OF TITLE; (VI) THAT THE YOURMECHANIC PLATFORM WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION; (VII) THAT ANY DEFECTS OR ERRORS IN THE HEAVE PLATFORM WILL BE CORRECTED; (VIII) THAT SERVICES OFFERED WILL BE AVAILABLE IN ALL MARKETS; OR (IX) THAT THE HEAVE PLATFORM IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. HEAVE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. HEAVE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
YOU AGREE NOT TO HOLD HEAVE (OR, ITS STOCKHOLDERS, AFFILIATES, LICENSORS, PARTNERS, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS AND CONTENT PROVIDERS (COLLECTIVELY, "MEMBERS")) LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE HEAVE PLATFORM OR ANY SERVICES, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT, DELAY OF PERFORMANCE OR OMISSION OF ANY USER OR THIRD PARTY PROVIDER (OR ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER), ANY DISPUTE WITH ANY USER OR THIRD PARTY PROVIDER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY HEAVE OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL HEAVE OR MEMBERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST EARNINGS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEAVE AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE HEAVE PLATFORM.
THE HEAVE PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. WE ARE NOT RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDER AND YOU EXPRESSLY WAIVE AND RELEASE HEAVE FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING FROM OR IN ANY WAY RELATED TO ANY THIRD PARTY PROVIDER. WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN YOU AND ANY THIRD PARTY PROVIDER. THE QUALITY OF THE SERVICES SCHEDULED OR REQUESTED THROUGH THE USE OF THE HEAVE PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE THIRD PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING THE HEAVE PLATFORM, YOU MAY BE EXPOSED TO SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE HEAVE PLATFORM, AND THIRD PARTY PROVIDER, AT YOUR OWN RISK. NOTHING IN THIS AGREEMENT OR THE HEAVE PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. YOU AGREE THAT WE HAVE NO RESPONSIBILITY OR LIABILITY TO YOU RELATING TO EQUIPMENT REPAIR SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT HEAVE OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE AND TOTAL LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR CAUSE OF ACTION, EXCEED THE AMOUNT INVOICED FOR THE ASSOCIATED JOB.
BY USING THE HEAVE PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE YOURMECHANIC PLATFORM.
California Waiver. If you are a California resident, to the extent permitted by California law, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor” as well as any other unknown claims under California Civil Code Section 1542 or any statute or common law principle of similar effect.
Indemnification. You hereby agree to indemnify, defend, and hold harmless Heave and Members from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys' fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use the Heave Platform, and/or the Services, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including Technicians), and (v) your information and content that you submit or transmit through the Heave Platform. Heave reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of Heave.
Arbitration. Any dispute or claim relating in any way to your use of the Heave Platform will be resolved by binding arbitration, rather than in court ,except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Heave's Registered Agent/Legal Department, located at 4707 W. Clear Ave. Tampa, FL 33629. The arbitration will be conducted in Palm Harbor, FL by the National Arbitration and Mediation (NAM) 2151 Chianti Place, Palm Harbor, Florida 34683- Tel: (727)474-2151 (www.namadr.com, in accordance with the applicable NAM Arbitration Rules (“NAM Rules). Our agreement to arbitrate is retroactive in effect and applies to all Claims regardless of whether they accrued before or after this agreement went into effect.
If either party files an arbitration, You and Heave agree that both parties will keep all aspects of the arbitration strictly confidential, except where disclosure is required by law (including regulatory reporting, or tax reporting, to any governmental agency or entity). Otherwise, we agree not to disclose to any other person facts about the arbitration proceedings, documents filed in the proceedings, or award and rulings in the proceedings. This provision will not preclude either party from moving to vacate or confirm an arbitral award in court, but both parties agree to use best efforts to file an arbitral award or other order under seal in court proceedings. HEAVE AND YOU AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND THAT CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. THAT MEANS YOU AND HEAVE WAIVE THE RIGHT TO BRING A CLASS ACTION AND CANNOT ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR NON-REPRESENTATIVE MEMBER OF A CLASS. HEAVE AND YOU AGREE THAT CLAIMS OF TWO OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME ARBITRATION UNLESS ARISING FROM THE SAME TRANSACTION. FURTHERMORE, HEAVE AND YOU AGREE THAT NEITHER YOU NOR HEAVE MAY PURSUE THE CLAIMS IN ARBITRATION AS A CLASS OR COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION. CLAIMS MAY NOT BE PURSUED IN ANY COURT OTHER THAN TO ENFORCE THE ARBITRATOR'S AWARD. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD RELIEF ONLY ON AN INDIVIDUAL AND NON-CLASS AND NONREPRESENTATIVE BASIS. ACCORDINGLY, YOU AND HEAVE.CO AGREE THAT THE NAM RULES FOR CLASS ACTIONS DO NOT APPLY TO OUR ARBITRATION.
Heave and You agree that Your access to or use of the Website and/or any service offered through it has an effect on interstate commerce. Therefore, Heave and You agree that this Arbitration Agreement shall be construed and interpreted under the Federal Arbitration Act, 9 U.S.C. Section 1, et. seq. You acknowledge and agree that You voluntarily and knowingly entered into this Arbitration Agreement, and chose to use the Heave.co Website and/or the services offered through it rather than companies that offer similar services and who may not have an arbitration agreement.
In the event this Agreement conflicts with the Heave Terms of Service, the NAM Rules, or any other agreement, this Agreement shall control.
Your Right to Opt-out of Arbitration Agreement.
If you do not wish to be bound by this Arbitration Agreement, You must timely notify Heaveby sending an email to email@example.com and providing the following information in Your email: (1) Your name; (2) Your address; (3) Your phone number; and (4) a clear statement that You wish to opt out of this Arbitration Agreement. To be effective, the opt-out notice must be emailed no later than 30 days after the date You become bound by the Arbitration Agreement. Please note that You will continue to be bound by any prior arbitration agreement You did not opt-out of and any arbitration agreement that otherwise governs Your relationship with Heave.
General. You may not assign these Terms without Heave's prior written approval. Heave may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Heave's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Heave or any Technician as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Heave's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Heave in writing.
Complaints of Copyright Infringement. We respect the intellectual property of others. We will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided through the Heave Platform or in connection with the Services infringe upon that person's or entity's copyright or other intellectual property right (such person or entity, a "Complainant") and sends to us a properly submitted copyright notice as indicated below, we will investigate, and if we determines, in our discretion, that the material is infringing, we will remove the content. All notices claiming an infringement of copyright rights must contain the following: (i) identification of the intellectual property right that is allegedly infringed (all relevant registration numbers, or a statement concerning the Complainant's ownership of the work, should be included); (ii) a statement specifically identifying the location of the infringing material, with enough detail that we may find it (please note it is not sufficient to merely provide a top level URL); (iii) the complete name, address, telephone number and e-mail address of Complainant; (iv) a statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law; (v) a statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed; and (vi) a physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed. Heave's contact information for notice of alleged copyright infringement is via email: firstname.lastname@example.org. or via mail: Attn: Legal, Heave, 4707 W. Clear Ave. Tampa, FL 33629.
Notice. Heave may give notice by means of a general notice through the Heave Platform, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Heave, with such notice deemed given when received by Heave, at any time by first class mail to Heave LLC, Attn: Legal, 4707 W. Clear Ave. Tampa, FL 33629.
Links to Other Websites and Display of Others' Brand Names or Logos. The Heave Platform may contain logos and/or brand names of third parties, and/or links (such as hyperlinks) to third-party websites. Such brands, logos, and links do not constitute our endorsement of those parties, sites or their content. They are provided as an information service, for reference and convenience only. We do not control any such sites, and are not responsible for their availability or accuracy, or content, advertising, or products or services. The existence of links on the Heave Platform to such websites (including without limitation external websites that are framed by the Heave Platform as well as any advertisements displayed in connection therewith) does not mean that we endorse any of the material on such websites, or have any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites. We expressly disclaim any liability arising in connection with your use and/or viewing of any websites, others' brands or logos, or other material associated with links, logos or brand names that may appear on the Heave Platform. You hereby agree to hold us harmless from any liability that may result from the use of links that may appear on the Heave Platform.
Questions. Please contact us with any questions regarding this Agreement by emailing us at email@example.com.
(referred to in this document as “Notice”)
This Notice was last updated on 17 SEP 2020
4707 W Clear Avenue
Tampa, Florida 33629
Please read below to understand your rights and how we use the information we gather.
This Privacy Notice (“Notice”) applies to this website or mobile application and the websites or mobile applications of Heave LLC, and its subsidiaries and affiliates (collectively “Heave.co”, “we”, “us” or “our”) that display this Notice (each a “Site” and collectively, the “Sites”). By visiting the Sites, you are consenting to our collection, use, disclosure, retention, and protection of information about you and devices you use as described in this Notice.
This Notice only applies to the Sites and does not apply to information collected or received by other means.
Our Sites are not directed to children under the age of 18. We do not knowingly collect personal information from children under age 18. This Notice does not apply to anonymized or aggregated data that does not allow us or third parties to identify or contact you.
Information You Give Us. We may collect and retain any information from you or your devices provided to us when you visit a Site, including when you:
We may collect information such as your first and last name, home or other physical address, email address, zip code, telephone number, or information about your interactions with us or others, and other information.
Social Media. You may use social networks or other online services to access our Sites. When you do so, information from those services may be made available to us. By associating a social network account with our Sites, you agree that we may access and retain that information in accordance with the policies of the social network or other online service and this Notice. For example, we may be able to access account or profile information that you have provided to the social network or information about your interactions with the social network to make information available to us (such as when commenting on a blog post or using a sign-on service, such as Facebook Connect).
Automatically Collected Information. We may collect information automatically when you visit our Sites or use our mobile applications, such as:
In addition, we may collect information about your activities on our Sites via first and third-party cookies, clear GIFs or web beacons, or through other identifiers or technologies, including similar technologies as they may evolve over time. We refer to these technologies collectively as Metrics Tools.
We may allow third parties to use Metrics Tools on our Sites. The information collected by Metrics Tools may be shared with and used by us, by others acting on our behalf, or by third parties subject to their own privacy policies. Information collected by Metrics Tools may be used on this Site or on other websites or services, including those that may not be operated by us.
Email. We may collect information regarding the effectiveness of our email and other communications with you. For example, we may know if you follow a link in an email we send to you.
Mobile. We may collect session and geolocation information from your mobile device. Geolocation information includes data such as your device’s physical location and may include GPS-based, WiFi-based or cell-based location information.
Information from Other Sources. We may obtain information about you from affiliates, partners, automobile dealers and other third parties. This information may include information about your use of this Site or our services, your use of other websites, your interactions with or purchases from automobile dealers, your interests and preferences and other information about you or your household. We may combine the information we obtain from third parties with information that we or our affiliates have collected about you.
Heave.co and others acting on our behalf may use the information that we collect or receive to operate our business, including our Sites, as described below:
Operate and Support our Sites and Services. We use the information that we gather in order to operate our Sites and our services. For example, we may use the information that we collect or receive to provide support and assistance that you request or to diagnose or address technical problems in the operation of our Sites or any of our services. If you establish an account with us, we may use information about you to manage or support your account. We may identify your use of our Sites across devices, and we may use information we collect from you and receive from others to optimize your use of the Sites and our services as you use different devices.
Improving and Evolving our Services. We constantly evaluate and improve our Sites and services, including developing new products or services and use the information we gather to do so.
To Allow You to Connect with Dealers and Equipment Manufacturers. When you use our service, and after you provide your contact information to request offers or information, we may use the information you provide us to connect you with a limited number of equipment dealers and manufacturers. These dealers and manufacturers may provide you with offers and/or incentives for new or used equipment or other products or services. When you choose to share your contact information with dealers (i.e., providing your mobile phone for texts instead of using our text masking service), your direct interactions with those dealers will not be controlled by this Notice. You should review the applicable notices of those dealers to understand how they may use your information.
To Allow You to Connect with Lending Institutions. Our Sites and services may permit you to provide information relevant to assessing your creditworthiness or designed to facilitate financing (for example, in connection a potential equipment lease or purchase). Your direct interactions with lending institutions will not be controlled by this Notice. You should review the applicable notices of those lending institutions to understand how they may use your information.
Advertising and Promotions. We may use the information we gather to offer, provide, or personalize products and services from us and third parties. For example, we may customize content, advertising, promotions and incentives to reflect your preferences, interests, or prior interactions with us and others.
Other Contacts. We may contact you through telephone, text, or chat for other purposes, as permitted by law.
This Notice only addresses our own information practices. This Notice does not apply to information you share with third parties, including but not limited to dealers and lending institutions, even if we link to those third parties from a Site. These third parties may have their own privacy policies governing their use of information that you can access from their websites. Our services may be offered through third party websites or mobile applications (“Partner Sites”). This Notice does not apply to Partner Sites, unless otherwise indicated on the Partner Site.
Please note that other parties may collect personally identifiable information about your online activities over time and across different websites when you use our Site.
We only share information about you as described or permitted by this Notice, unless you consent to other sharing. We may share information about you in the following ways:
Corporate Affiliates. We may share information with our corporate affiliates for their everyday business purposes, to provide services or to perform marketing. We may also participate in joint ventures with others and we may share information as part of that joint venture.
Partner Sites. We may share the information we gather with Partner Sites (and the owners of those sites). For example, we may share information for determining or verifying our economic rights and obligations.
Service Providers. We may share information with third party service providers who help us operate our business or provide services on our behalf, including third parties who help us operate our Sites. These service providers include analytics companies, communication providers and advertising networks that provide Metrics Tools on our Sites.
Promotional. We may share information with third parties to help us promote our products and services, or to help us customize advertisements, offers, or other communications to you.
Equipment Dealers and Manufacturers. We may share information with equipment dealers, equipment manufacturers, and other providers of equipment related products and services. For example, we may share information with our participating dealers to allow you to communicate with them, and them to communicate with you when you elect to share your information with them.
Business Transfer. We may share information we have collected from you in connection with the sale or merger of our business or the transfer of assets.
Protection of Ourselves and Others. We may use and share the information we gather to enforce our rights and protect our property and those of our affiliates, customers and members of the public, to comply with applicable law, legal process, legal advice and for preventing fraud, theft, and injury to you, us or others.
You may limit and control the information provided to us in several ways. You may not be able to use all features of our Sites if you limit the information you share with us.
For example, you can choose not to access our Sites through your social media account. You may also be able to limit the information provided to us by third party social media providers by altering your privacy settings with those providers. You may unsubscribe from promotional emails from us by following the unsubscribe link included in each such email.
Heave.co may use Google Analytics, which helps Heave.co better understand its audience and target communications and advertisements based on demographic or interest-based information. You may learn more about opting out of certain Google advertising initiatives here (https://support.google.com/ads/answer/2662922) and here (https://tools.google.com/dlpage/gaoptout/). You may also be able to opt out of certain targeted behavioral advertising via the Network Advertising Initiative’s opt-out (https://optout.networkadvertising.org).
Please note that you may still receive advertising even after opting out, but that advertising may not be tailored to you or your interests.
If you are a registered user on Heave.co.com, you may access, update and change certain information we have collected about you by accessing the “My Account” tab after signing into your account on www.Heave.co.
This part of our Notice applies only to consumers who reside in the State of California.
Personal Information We Collect about California Consumers
We describe the Personal Information we have collected from consumers in the twelve (12) months preceding the effective date of this Notice in the part of our Notice titled, “What Information Does Heave.co Gather?”. The information we collect includes the following:
For information regarding the purposes for which we collect and use the Personal Information we collect, please see “How Does Heave.co Use Information About Me.”
Your California Privacy Rights
If you are a California consumer, you have the following rights. We will honor requests received to the extent required by applicable law and within the time provided by law.
(a) Right to Access and Information regarding Personal Information. You have the right to request that we disclose to you the categories and specific pieces of Personal Information we have collected about you. Specifically, you have the right to request that we disclose the following to you, in each case in the twelve-month period preceding your request:
We will deliver Personal Information that we are required by law to disclose to you in the manner required by law within 45 days after receipt of a verifiable request, unless we notify you that we require additional time to respond, in which case we will respond within such additional period of time required by law. We may deliver the Personal Information to you through your account, if you maintain an account with Heave.co, or, if not, electronically. If electronically, then we will deliver the information in a portable and, to the extent technically feasible, in a readily useable format that allows you to transmit the information from one entity to another without hindrance.
(b) Right to Deletion of Personal Information. You have the right to request that we delete Personal Information about you that we have collected from you.
(c) Right to Opt Out. You have the right to opt out of the disclosure of Personal Information about you to third parties for monetary or other valuable consideration. To opt-out, click Do Not Sell My Personal Information.
(d) Right to Non-Discrimination. We may not discriminate against you because of your exercise of any of the foregoing rights, or any other rights under the California Consumer Privacy Act, including by:
We may, however, charge different prices or rates, or provide a different level or quality of goods or services, if that difference is reasonably related to the value provided to Heave.co by your Personal Information.
Requests to Exercise Your Rights
You may request to exercise the foregoing rights by:
You may designate an authorized agent to make a request on your behalf. Please note that we may take steps to verify your identity before granting you access to information or acting on your request to exercise your rights, as required or permitted by law. We may limit our response to your exercise of the above rights as permitted by law.
Data Sharing for Direct Marketing Purposes
Residents of the State of California may request a list of all third parties to which we have disclosed certain personal information (as defined by California law) during the preceding year for those third parties’ direct marketing purposes. If you are a California resident and want such a list, please contact us via the Contact section provided below.
Do Not Track Notice
At this time, there is no worldwide uniform or consistent industry standard or definition for responding to, processing, or communicating Do Not Track signals. Thus, like many other websites and online services, our Sites are currently unable to respond to Do Not Track Signals.
By using this Site, you agree that any dispute arising out of or relating to the Sites, the Sites’ content or the services or materials made available on the Sites, or regarding information collected or shared about you, is subject to the Heave.co Arbitration Agreement and to the Choice of Law, Venue, and Class Action Waiver provisions in our Terms of Service.
We use administrative, technical, and physical security designed to safeguard personal information in our possession. We cannot guarantee the security of the information that we collect and store. If you believe that information about you has been subject to unauthorized disclosure, please let us know by emailing privacy@Heave.co.
When we make material changes to this Notice, we will update this web page and change the Effective Date listed above.
You can contact us with questions or comments about our privacy practices or this Notice by emailing us at privacy@Heave.co or you can contact us at the address provided above.
1. Definitions. For the purposes of this Agreement, the following terms have the meanings set forth
1.1 "Affiliated Individual(s)" means all agents, employees, entities, owners, partners, principals, independentcontractors, subscontractors, third party agents, representatives, workers, or other service providers of theINDEPENDENT TECHNICIAN.
1.2 "Ancillary Documents" means the HEAVE INDEPENDENT TECHNICIAN GUIDELINES, the HEAVEprivacy statement, the Prime Agreement and any User Terms and Conditions of the HEAVE platformpublished by HEAVE or its affiliates on its website or in its mobile applications, as amended from time totime during the term thereof.
1.3 "Business Day" means Monday through Friday exclusive of any federal or state holiday or observationthereof.
1.4 "Confidential Information" menas this Agreement, the Ancillary Documents, the HEAVE platformsoftware, and all digital content contained in or used by HEAVE in the HEAVE platform or any of itswebsites or mobile applications. Confidential information shall also include any data or informationsubmitted 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 repairservices, preventative maintenance services, or equipment inspection services.
1.6 "Estimate" means a document created by the INDEPENDENT TECHNICIAN after completing aninspection of the equipment for the quantities of materials and labor hours aniticipated to complete a Job.
1.7 "HEAVE Platform" means the HEAVE website, mobile applications, and software through whichHEAVE (i) maintains a network of pre-credentialed service providers offering equipment repair services whoseek to connect with Customers who require equipment repair services.
1.8 "Job(s)" means the work subcontracted to and performed by the INDEPENDENT TECHNICIAN asdetailed within a Work Order and pertaining to the (i) inspection of equipment; (ii) created of Estimates ofrepairs 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 anINDEPENDENT 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 toSection 2.2.
1.10 "Prime Agreement" is the agreement between a Customer and HEAVE detailing the scope fo the Joband the services to be performed thereunder.
1.11 "Term" is defined in Section 19.
1.12 "User Account" enables the INDEPENDENT TECHNICIAN access to the HEAVE Platform
1.13 "User" means the INDEPENDENT TECHNICIAN who registers with the HEAVE platform to provideequipment repair services to Customers.
1.14 "Work Order" is a record of a Job assignment from HEAVE to the INDEPENDENT TECHNICIANauthorizing 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 refereance all AncillaryDocuments. The HEAVE Guidelines, the HEAVE Privacy statement, and any Users Terms and Conditionsof the HEAVE platform are posted on the Company's website, presently https://www.heave.co. Byexecuting this Agreement, the INDEPENDENT TECHNICIAN acknowledges that it has read each of thedocuments, that it and any Affiliated Individual understand and agree to conduct themselves in accordancewith the terms and conditions of such documents and further agrees to be bound by all of the terms andconditions 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 the Ancillary Documents. The INDEPENDENT TECHNICIAN is responsible formontioring the HEAVE platform, reviewing all notifications posted thereto, and complying with currentversions of the Ancillary documents. The "Last Updated" date indicated on each of the Ancillary Documentswill indicate when the latest modifications were made. Further, if HEAVE makes material modifications tothe terms of any Ancillary document, the INDEPENDENT TECHNICIAN will be provided notice by email atleast thirty (30) days before the material modifications become effective. If the INDEPENDENTTECHNICIAN disagrees with with revised terms, this Agreement may be terminated with immeditate effectand any User account created will be deactivated. By continuing to participate in the HEAVE Platform after
any of the ancillary documents have been modified, the INDEPENDENT TECHNICIAN agrees to be boundby such modifications.
3. Job Performance.
3.1 Time is of the Essence. The INDEPENDENT TECHNICIAN will, at a minimum, perform services setforth within all accepted Work Orders in a timely, workmanlike, and professional manner in accordance withthis Agreement, the Ancillary Documents, and any Applicable Laws (defined below).
3.2 Quality of Job Performed. The INDEPENDENT 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) from HEAVE, the INDEPENDENT TECHNICIAN shall, within the reasonable time periodspecified by HEAVE in its sole discretion, proceed to take down or otherwise remove all portions of the Jobwhich HEAVE shall have determined is unsound, improper, or in any way failing to comply with the Job orthis Agreement and shall replace with new, conforming, and quality services in a manner deemedsatisfactory by Customer and HEAVE.
3.3 Equipment. The INDEPENDENT TECHNICIAN will, at its own expense, provide all transportation andprovide and maintain all equipment, supplies, tools (including appropriate personal protective equipment"PPE") and other resources (collectively, "Equipment") necessary to fulfill its obligations under the specificJob accepted and/or this Agreement. The INDEPENDENT TECHNICIAN will keep equipment in goodrepair and safe operating condition, maintain equipment according to Manufacturers' recommendations, anduse Equipment for its intended purpose.
3.4 Clean Up. The INDEPENDENT TECHNICIAN shall, at its own expense: (a) keep the Customer'spremises free from waste, materials, packaging and other debris accumulated in connection with theservices rendered on any Job by collecting and removing such debris on a daily basis or other basis asrequested 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 as directed by the Customer or HEAVE at the job'scompletion. The INDEPENDENT TECHNICIAN agrees to provide all cleaning and cleanup required undera Job to the extent such requirements are not in excess of this Section. If the INDEPENDENTTECHNICIAN fails to commence clean-up duties within twenty-four (24) hours after receiving notice fromHEAVE or the Customer, HEAVE may implement cleanup measures as necessary or prudent without furthernotice. The costs associated with the cleanup shall be reimbursed to HEAVE by the TECHNICIAN.
3.5 Environmental Protection. The INDEPENDENT TECHNICIAN shall be responsible for compliancewith 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 andsubstances (hereinafter "Hazardous Materials"). In addition, the INDEPENDENT TECHNICIAN shall notprovide or allow any of your Affiliated Individuals to supply or deliver any Hazardous Materials to acustomer's property, and in the event such occurs, the INDEPENDENT TECHNICIAN shall remvoe suchHazardous Materials at its sole expense. Further, the INDEPENDENT TECHNICIAN shall immediatelynotify HEAVE it it or its Affiliated individuals encounter any Hazardous Materials during the performance ofthe services of the Job at any time.
3.6 Equipment Losses. The INDEPENDENT TECHNICIAN is solely responsible for the care of, and for alllosses that may occur with respect to any actual or alleged physical damage to or loss of, the Customer'sequipment arising from or relating to services rendered pursuant to the accepted job.
3.7 Encumbrances. To the extent permissible under Applicable Laws, the INDEPENDENT TECHNICIANagrees 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 HEAVEcustomer ("Encumbrances"). The INDEPENDENT TECHNICIAN shall, at all times, keep the property of theCustomer free from Encumbrances filed or recorded by Affiliated individuals or others claiming to be in thechain of privity with the TECHNICIAN in connection with the Job. The TECHNICIAN shall cause therelease, 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, HEAVEshall have the right, but not the obligation, to take any and all steps necessary to promptly release suchEncumbrances, and the INDEPENDENT TECHNICIAN shall pay to HEAVE or its Customer(s) by reasonthereof, 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 INDEPENDENTTECHNICIAN agrees that HEAVE is entitled to deduct such costs, expenses and legal fees from any sumthen due or thereafter becoming due. This paragraph shall survive the termination of this Agreement.
3.8 No Customer Solicitation. The INDEPENDENT TECHNICIAN and any Affiliated Individuals used on aJob will not offer, solicit, or provide any services, or recommend a third-party for the performance of any Jobfor a Customer, other than providing the services set forth in the accepted Work Order. The TECHNICIANand any Affiliated individuals will not use Confidential information (defined below), information aboutCustomers obtained as a result of your activities under this agreement, the applicable work order, or anyother information about Customers obtained as a consequence of your fulfillment of obligations under thisAgreement, for any purpose other than as necessary to perform the Job. The TECHNICIAN and anyAffiliated individuals are expressly prohibited from using Confidential Information to solicit, directly, orindirectly, any business from a Customer or prospective customer. The TECHNICIAN and Affiliatedindividuals 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. The TECHNICIANacknowledges and agrees that the restrictions contained in this Section are fair, reasonable, and necessaryto protect HEAVE's legitimate business interests, and that the TECHNICIAN accepts a duty to know andremain aware of the services that are fulfilled by HEAVE. The non-solicitation restrictions set forth in thisSection will survive for one (1) year upon termination of this Agreement or your deactiviation from theHEAVE platform. The TECHNICIAN agrees that immediate, irreparable harm could result to HEAVE and itsbusiness if the TECHNICIAN or Affiliated Individuals breach their obligations in this section. Therefore, theTECHNICIAN agrees that HEAVE will be entitled to injunctive or other equitable relief if the TECHNICIAN orAffiliated Individuals breach their obligations under this Section, in addition to any other remedies availableat law or equity.
3.9 No Assurance of Jobs. Nothing in this Agreement shall be construed as a guarantee that theINDEPENDENT TECHNICIAN shall be offered any particular number of Jobs during any particular timeperiod. The INDEPENDENT TECHNICIAN acknowledges that HEAVE makes no assurances whatsoeverthat 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 ofthe foregoing, the INDEPENDENT TECHNICIAN acknowledges that any investments or expenditures that ithas made or may make upon agreeing to these terms are made it its sole risk.
4.2 Obligations and Covenants. Throughout the Term, the INDEPENDENT TECHNICIAN shall:
4.2.1. 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 authoritywith jurisdiction over the Job, including court orders (the "Applicable Laws") pertaining to the performanceand safety of the Job;
4.2.2 maintain all necessary licenses, certifications, and permits to perform the repairs, resorations, andservices as required by Applicable Laws for all Jobs in which the TECHNICIAN undertakes;
4.2.3 not request or require Customers to obtain permits unless permissible under Applicable Laws andauthorized to do so in writing by HEAVE:
4.2.4 update HEAVE, pursuant to the notice provisions set forth in Section 22.2, if any information providedto HEAVE on the TECHNICIAN application has changed or is expected to change;
4.2.5 provide all documents and information requested by HEAVE in accordance with the terms andconditions of the HEAVE platform, this Agreement, and the Ancillary documents;
4.2.6 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 ApplicableLaws;
4.2.7 cooperate with HEAVE in investigating and resolving any complaint or complaints that HEAVEreceives regarding the TECHNICIAN or any Affiliated Individual in connection with use of the HEAVEplatform or conduct in performance of any services on any Jobs; and
4.2.8 not make any statement or representation which is false, fraudulent, or in violation of any state orfederal law, regulation, or duty.
5. HEAVE's Obligations, Representations, and Warranties.
5.1 HEAVE's Representations and Warranties. HEAVE represents and warrants to the INDEPENDENT
TECHNICIAN the following:
5.1.1 all information provided by HEAVE to the TECHNICIAN is true and accurate as of the Effective Date;and
5.1.2 HEAVE has all requisite authority to enter into this Agreement and the present capability to satisfy itsterms.
5.2 Obligations and Covenants. Throughout the Term, HEAVE shall:
5.2.1. Make timely payments to the INDEPENDENT TECHNICIAN according to the procedures set forth in
5.2.2 make all commercially reasonable efforts to maintain the HEAVE platform and provide technicalsupport to the INDEPENDENT TECHNICIAN. Such support shall include, but is not limited to, assisting inthe creation of a User account, the retrieval of login and password information, and the navigation of theUser interface of the HEAVE platform. Notwithstanding the provisions of this Section 5, HEAVE reservesthe 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 ofthe Parties;
5.2.4 in connection with any obligation or activity set forth in this Agreement: (a) comply with, or causecompliance with, all laws, rules, and regulations applicable to HEAVE's performance hereunder; (b) causeall of its employees, agents, and representatives to comply with the aforementioned laws, rules, andregulations; and (c) not make any statement or representation which is false, fraudulent, or in violation ofany state or federal law, regulation, or duty.
6. Workmanship Warranty Issued to Heave
6.1 Terms. For every Job commenced and completed, the INDEPENDENT TECHNICIAN shall issue toHEAVE for whom the repair or service was subcontracted, a workmanship warranty, the terms of whichshall be consistent with the industry standard for warranty repairs: the technician must warrant its work tobe free of defects in material or poor workmanship for a period no less than three (3) months or fivehundred (500) hours, starting from the date the machine is put back into service.
6.2 Obligation to Heave. The INDEPENDENT TECHNICIAN acknowledges that a failure to provide, honor,and satisfy the warranty required under this Section 6, will cause substanital harm to HEAVE's marketplacereputation and goodwill. As such, failure to provide, honor, and satisfy the terms of the warranty required bythis Section 6 shall be deemed a breach of this Agreement. Notwithstanding the foregoing, theTECHNICIAN hereby acknowledges and agrees that HEAVE shall have no liability for ensuring orguaranteeing performance by the TECHNICIAN for any work performed for a Job or the warranty issuedpursuant to this Section 6.
7.0 Payment and Fees.
7.1 Payment Terms. All payments, fees, and charges owed to the INDEPENDENT TECHNICIAN on acompleted Job and to be paid through the HEAVE platform shall be subject to the payment terms andconditions set forth in the applicable Work Order and the HEAVE Guidelines which may be updated fromtime to time by HEAVE pursuant to Section 2 above.
7.2 Contingent Upon Job Completion. The INDEPENDENT TECHNICIAN shall not be owed, andHEAVE shall not deliver, any payment in connection with any Work Order until the Job set forth in theapplicable Work Order is complete. HEAVE shall remit payment to the TECHNICIAN within 15 BUSINESSDAYS of a Job being completed.
7.3 Chargeback and Payment Reversals. If HEAVE incurs costs or expenses (i) to rectify actual oralleged substandard or faulty workmanship performed by the TECHNICIAN and/or its Affiliated individuals tosatisfy 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, includingwithout limitation reasonable attorney's fees, arising from or relating to the conduct or performance of theTECHNICIAN or any Affiliated individuals, (iv) if the TECHNICIAN or Affiliated Individuals violates any of therequirements set forth herein that are, or may be deemed in the future, violations that provide a penalty tobe imposed against the TECHNICIAN, such as expenses, regardless of the manner incurred, will bededucted 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 anyscenario set forth in the preceding paragraph and the TECHNICIAN has previously received payment fromHEAVE for the Work Order(s) associated with the incurred cost, expense or Customer refund, there are twopossible 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 TECHNICIANagainst any amounts owed by the TECHNICIAN or its Affiliated individuals with respect to other WorkOrders fulfilled by the TECHNICIAN or any other contractual agreement between the parties hereto, unlesssuch set-off violates the Applicable Laws.
8. Independent Contractor/Subcontractor Relationship. This Agreement is not intended to create, anddoes not create any partnership, joint venture, agency, fiduciary, employment, or other relationship betweenthe Parties, beyond the relationship of independent parties to a commercial contract. Neither party is, norwill either Party hold itself out to be, vested with any authority to bind the other party contractually, or to acton behalf of the other party as a broker, agent, or otherwise.
The subcontracted INDEPENDENT TECHNICIAN shall perform the services required by this Agreementunder the general direction of HEAVE, subject to approval of the Customer or other specified representativeof 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 INDEPENDENT TECHNICIAN shallbe 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 Partiesacknowledge that any provisions of this Agreement reserving certain authority in HEAVE have been insertedsolely 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 serviceproviders to perform the same or similar Jobs described in this Agreement. Similarly, the INDEPENDENTTECHNICIAN 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 acceptedor otherwise cause the INDEPENDENT TECHNICIAN to breach this Agreement. The TECHNICIANunderstands that it shall not during the term of this Agreement use its relationship with HEAVE (or theConfidential Information gained there from) to divert or attempt to divert any business from HEAVE to acompany that provides services in competition with HEAVE.
Confidentiality; Publicity; Ownership of Works.
10.1 Confidentiality The INDEPENDENT TECHNICIAN acknowledges that performance under thisAgreement will give the TECHNICIAN and its Affiliated Individuals access to confidential, proprietary, andtrade secret information of HEAVE and/or its service providers, employees, agents, business andcontractual relationships, as well as, Customer information (collectively, "Confidential Information"). TheTECHNICIAN agrees that it will maintain all Confidential Information in strict confidence and not disclose oruse Confidential Information other than as necessary to fulfill its obligations under this Agreement. TheTECHNICIAN will inform its Affiliated Individuals about the confidential and proprietary nature of theConfidential Information to which they may be exposed and will ensure that Affiliated Individuals (i) keepConfidential information strictly confidential, and safeguard and protect the Confidential information fromtheft, piracy, or unauthorized access in a commercially reasonable manner, (ii) are bound by obligations ofnondisclosure and limited use at least as stringent as those contained herein, and (iii) comply with all termsof this Section 10 "Confidential Information" shall include without limitation, information disclosed to, madeavailable to, or obtained by the TECHNICIAN in connection with this Agreement, and all material andreports prepared for HEAVE hereunder, including all information (whether or not specifically labeled oridentified as confidential), in any form or medium, that is disclosed or learned by the TECHNICIAN in theperformance of Jobs related to this Agreement and that relates to the business, services, research ordevelopment of HEAVE or its service providers, suppliers, agents, representatives, Customers orParticipating Insurer. Confidential information further includes without limitation the following:
(a) internal business information (including information relating to the strategic and staffing plans andpractices, 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 fomulae, 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 anddatabases, and any User Account ID and passwords HEAVE provides you for access to the HEAVEPlatform; and,
(e) trade secrets, trade dress, ideas, inventions, designs, developments, devices, methods, processes, andsystems (whether patentable or copyrighted, and whether reduced to practice or fixed in a tangiblemedium).
10.2 Required Disclosures. If the INDEPENDENT TECHNICIAN receives a subpoena or other validlyissued administrative or judicial process demanding information about this Agreement and/or Confidentialinformation, the TECHNICIAN must immediately notify in writing and tender the process for defense toHEAVE. Unless it has been timely limited, quashed, or extended, the TECHNICIAN will thereafter beentitled to comply with such process to the extent required by law. If requested, the TECHNICIAN willcooperate in the response to such process or any demand related thereto.
10.3 Injunctive Relief. The INDEPENDENT TECHNICIAN acknowledges and agrees that in the event ofthe TECHNICIAN or Affiliated Individuals's breach of the confidentiality provisions of this Section 10, HEAVEwill suffer irreparable injuries not compensated by money damages and therefore shall not have anadequate remedy at law. Accordingly, HEAVE shall be entitled to a preliminary and final injunction, withoutthe necessity of posting any bond or undertaking in connection therewith, to prevent any further breach ofthese confidentiality obligation or further unauthorized use of Confidential Information. This remedy isseparate and apart from any other remedy that HEAVE may have.
10.4 Publicity. INDEPENDENT TECHNICIANS will not issue any press release or other statement orotherwise disclose (in whole or in part) the contents or substance of this Agreement or the Parties' activitiesunder this Agreement without first obtaining the express prior written consent of HEAVE. Any such consentmust be requested at least thirty (30) calendar days before the intended date of the release orcommunication. TECHNICIANS will immediately inform HEAVE if it believes that the issuance of any pressor 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 assigneeown and have all right, title, and interest in all ideas, concepts, plans, processes (including, withoutlimitation, sales and marketing processes), creations, trademarks, logos, intellectual property, and otherwork product (collectively, the "Works") produced by HEAVE, at HEAVE's request, or by theINDEPENDENT TECHNICIAN or any Affiliated individual for HEAVE in futherance of the Parties' obligations
under this Agreement. The TECHNICIAN will cooperate fully with HEAVE and execute documentation asHEAVE may request in order to establish, secure, maintain, or protect HEAVE's rights with respect to theWorks.
12.1 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, THE INDEPENDENT TECHNICIAN SHALLDEFEND, INDEMNIFY, AND HOLD HEAVE, THE CUSTOMER, AND PARTICIPATING INSURER AND ANY OFTHEIR RESPECTIVE PAST AND PRESENT OWNERS, OFFICERS, SHAREHOLDERS, DIRECTORS,EMPLOYEES, AND AGENTS (COLLECTIVELY “INDEMNITEES”) HARMLESS FROM AND AGAINST ANY ANDALL 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 FOR PERSONAL INJURY (INCLUDING DEATH) ANDPROPERTY DAMAGE RELATING TO OR ARISING OUT OF ANY JOB AND/OR ASSIGNED WORK ORDER
PERFORMED BY HOMEE PRO OR ANY OF ITS AFFILIATED INDIVIDUALS (THE “INDEMNITORS”);PROVIDED, HOWEVER, THE INDEMNITORS SHALL HAVE NO OBLIGATION TO INDEMNIFY, DEFEND ORHOLD HARMLESS THE INDEMNITEES IN THE EVENT THAT SUCH CLAIMS, DAMAGES, LOSSES, ANDEXPENSES ARE CAUSED BY THE SOLE, ACTIVE NEGLIGENCE OF AN INDEMNITEE.
12.2 BY WAY OF EXAMPLE AND NOT LIMITATION, THE TECHNICIAN SHALL DEFEND, INDEMNIFY, ANDHOLD THE INDEMNITEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ALLEGATIONS, LOSSES,LIABILITIES, CAUSES OF ACTION, LAWSUITS, PROCEEDINGS, JUDGMENTS, CIVIL PENALTIES, FINES,PENALTIES, DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEY, EXPERT, AND CONSULTANTFEES AND LEGAL EXPENSES, TO THE EXTENT ARISING OUT OF OR RELATING TO THE FOLLOWING:12.2.1 THE INACCURACY, UNTRUTHFULNESS, OR BREACH OF ANY REPRESENTATION, COVENANT,WARRANTY, OR ANY OTHER AGREEMENT SET FORTH IN THIS AGREEMENT BY THE TECHNICIAN AND/ORITS AFFILIATED INDIVIDUALS;
12.2.2 PERSONAL INJURY (INCLUDING WITHOUT LIMITATION, DEATH AND EMOTIONAL DISTRESSOR INJURY) ARISING OUT OF OR RELATING TO ACTS OR OMISSIONS OF THE INDEPENDENTTECHNICIAN AND/OR ITS AFFILIATED INDIVIDUALS WHILE PERFORMING SERVICES PURSUANT TOANY JOB SET FORTH IN THE APPLICABLE WORK ORDER;
12.2.3 PROPERTY LOSS OR DAMAGE ARISING OUT OF OR RELATING TO ACTS OR OMISSIONS OF THETECHNICIAN AND/OR ITS AFFILIATED INDIVIDUALS WHILE PERFORMING SERVICES PURSUANT TO ANYJOB SET FORTH IN THE APPLICABLE WORK ORDER;
12.2.4 NONCOMPLIANCE BY THE TECHNICIAN AND/OR ANY AFFILIATED INDIVIDUAL WITH ANYAPPLICABLE LAWS;
12.2.5 ANY HAZARDOUS MATERIAL (AS THAT TERM IS DEFINED BY APPLICABLE LAWS) BROUGHT TOTHE CUSTOMER’S PROPERTY OR RELEASED BY THE NEGLIGENCE OF THE TECHNICIAN AND/OR ITSAFFILIATED INDIVIDUALS;
12.2.6 INFRINGEMENT OF THE INTELLECTUAL PROPERTY, PROPRIETARY, OR OTHER RIGHTS OF ANYTHIRD PARTY BY THE TECHNICIAN AND/OR ANY OF ITS AFFILIATED INDIVIDUALS;
12.2.7 THE FAILURE OF THE TECHNICIAN AND/OR AFFILIATED INDIVIDUALS TO PERFORM INSPECTIONSOR OBTAIN AND MAINTAIN LICENSES OR PERMITS REQUIRED BY APPLICABLE LAWS;
12.2.8 THE SUPPLY OF FALSE OR INACCURATE BACKGROUND INFORMATION OR THE GATHERINGAND/OR USE OF BACKGROUND INVESTIGATION INFORMATION;
12.2.9 TAXES ASSERTED OR LEVIED AGAINST HEAVE RESULTING FROM SERVICES THAT ARE THERESPONSIBILITY OF THE HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS,
REPRESENTATIVES OR ITS SUBCONTRACTORS;
12.2.10 THE FAILURE OF THE TECHNICIAN TO COMPLY WITH APPLICABLE LAWS RELATING TOIMMIGRATION;
12.2.11 THE UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION BY THE TECHNICIANAND/OR ANY OF ITS AFFILIATED INDIVIDUALS;
12.2.12 ANY PROPERTY ENCUMBRANCE RESULTING FROM ANY ALLEGED FAILURE OF THE TECHNICIANOR ANY OF ITS AFFILIATED INDIVIDUALS, TO PAY FOR ANY PORTION OF THE SERVICES, WHETHER VALIDOR NOT;
12.2.13 ANY MATERIAL BREACH OF THIS AGREEMENT OR AN ACCEPTED WORK ORDER; OR
12.2.14 COMPENSATION OR BENEFITS OF ANY KIND, INCLUDING BASE WAGES, BONUSES, HEALTH ANDWELFARE BENEFITS (BY AGREEMENT, PLAN, STATUTE OR OTHERWISE), PENSION BENEFITS, ORSEVERANCE OR TERMINATION PAY, BY OR ON BEHALF OF THE TECHNICIAN OR ANY AFFILIATEDINDIVIDUAL, CLAIMING AN EMPLOYMENT OR OTHER RELATIONSHIP WITH THE TECHNICIAN AND/ORHEAVE.
It is agreed that with respect to any legal limitations resulting from Applicable Laws now or hereafter in effect andaffecting the validity and enforceability of the indemnification obligation under Section 12.1 and/or Section 12.2,such legal limitations are made a part of the indemnification obligation to the minimum extent necessary to bringSection 12.1 and/or Section 12.2 into conformity with the requirements of such limitations, and as so modified, theindemnification obligation shall continue in full force and effect.
The TECHNICIAN’s obligations under Sections 12.1 and 12.2 shall not be limited, waived, or excused by thepayment 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.
12.3 Right to Assume Defense. It is agreed that with respect to any legal limitations resulting from ApplicableLaws now or hereafter in effect and affecting the validity and enforceability of the indemnification obligation underSection 12.1 and/or Section 12.2, such legal limitations are made a part of the indemnification obligation to theminimum extent necessary to bring Section 12.1 and/or Section 12.2 into conformity with the requirements of suchlimitations, and as so modified, the indemnification obligation shall continue in full force and effect.
The TECHNICIAN’s obligations under Sections 12.1 and 12.2 shall not be limited, waived, or excused by thepayment 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.
12.4.1 Inform the Indemnitees in writing about all material information pertaining to a third party claim;
12.4.2 Inform the Indemnitees in writing of the date of any mediation, arbitration, trial, or settlement conferencerelating to a third party claim as soon as possible after it receives such information;
12.4.3 Choose defense counsel that is reasonably satisfactory to the Indemnitees;
12.4.4 Provide Indemnitees with copies of all discovery requests within five (5) days of TECHNICIAN’s receipt of
12.4.5 Provide the Indemnitees with copies of all pleadings, discovery responses, settlement proposals and/or anyother material documents relating to the third-party claim before finalizing or filing to allow the Indemnitees theopportunity to provide comments; and
12.4.6 Inform the Indemnitees of the outcome of any mediation, arbitration, motion, trial, settlement, or any othermatter from which appeal rights could arise.
12.5 No Settlement Without Consent. TECHNICIAN will not enter into any settlement or compromise of a claimwithout first obtaining the Indemnitees’ prior written consent.
12.6 Indemnification in Addition to Insurance. The presence or absence and/or applicability or non-applicabilityof the INDEPENDENT TECHNICIAN’s insurance coverage does not in any way limit the TECHNICIAN’s obligationto indemnify, defend, and hold the Indemnitees harmless pursuant to the terms of this Section 12.
12.7 Conflicts of Interest. If counsel retained by the TECHNICIAN has a conflict of interest or such conflict ofinterest arises in connection with a third-party claim, Indemnitees shall be entitled to retain separate counsel, atTECHNICIAN’s expense, to defend Indemnitees. TECHNICIAN shall not seek to disqualify counsel due to analleged conflict of interest where a single counsel represents multiple Indemnitees in connection with a third-partyclaim, and TECHNICIAN hereby waives any alleged conflict of interest allegations relating to same.
13. Intellectual Property. All intellectual property rights in the HEAVE Platform shall be owned by HEAVEabsolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered orunregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in theworld 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. TheTECHNICIAN acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or otherinformation (“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 unrestricteduse and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment orcompensation to the TECHNICIAN.
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 an INDEPENDENT TECHNICIAN, HEAVE grants to you, during the Term of thisAgreement, 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 anyright, permission, license or sublicense with respect to any of the rights granted hereunder without HEAVE’s priorwritten permission, which it may withhold in its sole discretion. The HEAVE logo (or any HEAVE Marks) may not beused in any manner that is likely to cause confusion, including but not limited to: use of a HEAVE Mark in a domainname 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 INDEPENDENT TECHNICIAN may identify itself as a TECHNICIAN on theHEAVE Platform, but may not misidentify yourself as HEAVE, an employee of HEAVE, or a representative ofHEAVE.
The technician acknowledges that HEAVE is the owner and licensor of the Works and the HEAVE Marks, includingall goodwill associated therewith, and that your use of the Works, HEAVE logo (or any HEAVE Marks) will confer nointerest in or ownership of the Works or HEAVE Marks in you but rather inures to the benefit of HEAVE. TheTECHNICIAN agrees to use the HEAVE logo strictly in accordance with HEAVE’s Brand Guidelines, as may beprovided in Ancillary Documents and revised from time to time, and to immediately cease any use that HEAVEdetermines to nonconforming or otherwise unacceptable.
The TECHNICIAN agrees that it will not: (1) create any materials that use the HEAVE Marks or any derivatives ofthe HEAVE Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved byHEAVE 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 asowner of the HEAVE Marks or the legality and/or enforceability of the HEAVE Marks, including, challenging oropposing HEAVE’s ownership in the HEAVE Marks; (4) apply for trademark registration or renewal of trademarkregistration of any of the HEAVE Marks, any derivative of the HEAVE Marks, any combination of the HEAVE Marksand any other name, or any trademark, service mark, trade name, symbol or word which is similar to the HEAVEMarks; (5) use the HEAVE Marks on or in connection with any product, service or activity that is in violation of anylaw, 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 solediscretion, 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 ordigital) bearing the HEAVE Marks (in violation of this Agreement or otherwise), the technician agrees that upon theircreation HEAVE exclusively owns all right, title and interest in and to such materials, including any modifications tothe HEAVE Marks or derivative works based on the HEAVE Marks or HEAVE copyrights. The TECHNICIAN furtheragrees to assign any interest or right it may have in such materials to HEAVE, and to provide information andexecute any documents as reasonably requested by HEAVE to enable HEAVE to formalize such assignment.
14.1 Insurance Coverage Requirements. INDEPENDENT TECHNICIANS will procure and maintain at alltimes throughout the Term of this Agreement, (1) commercial general liability, (2) automobile liability, and accordingto state laws, (3) workers’ compensation insurance policies. The insurance will not include any exceptions and/orexclusions that limit or minimize the coverages for the Job. Product-completed operations endorsements arerequired. TECHNICIANS shall cause its applicable Affiliated Individuals to provide, pay for, and maintain at all timeswhile performing services with TECHNICIAN, commercial general liability, automobile liability, and workerscompensation insurance with commercially reasonable limits and coverages for their respective scope of the Job.To avoid all doubt, the insurance coverages set forth herein and further detailed in the TECHNICIAN Guidelines areconsidered aspects of the Minimum Eligibility Criteria enabling access to the HEAVE Platform and failure tomaintain such coverages is a breach of this Agreement and an “Event of Default” as set forth in Section 17 below.
14.2 Risk of Loss. As of the Effective Date and continuing throughout the Term, each Party to this Agreement willbe responsible for risk of physical or actual loss of and damage to any property, equipment, merchandise, or anyother items or information in its possession or under its control. As between HEAVE and Customer, the risk of lossshall not pass to Customer until the Job has been completed and accepted by the Customer. Risk of loss shallrevert to HEAVE 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.
14.3 Waiver of Subrogation. With respect to the insurance required to be furnished by this agreement,INDEPENDENT TECHNICIANS and its insurer(s) hereby waive all rights of subrogation against Heave andCustomers, from any and all claims and liability or responsibility with respect to such loss or injury arising from workthrough the HEAVE platform.
14.4 Additional Insured. All INDEPENDENT TECHNICIAN insurance coverage shall cause HEAVE and theCustomer(s) to be named as additional insureds as specified under the respective coverage required by thisAgreement.
15. Disclaimers and Limitations of Liability.
15.1 LIABILITY FOR ACTUAL DAMAGES ONLY. EXCEPT IN CONNECTION WITH TECHNICIAN’s BREACH OFCONFIDENTIALITY, FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY INDEMNIFICATIONOBLIGATION OWED HEREIN BY TECHNICIAN, EACH PARTY HEREBY WAIVES ANY RIGHT TO CLAIMAGAINST THE OTHER PARTY FOR INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL ORCONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST OPPORTUNITIES,LOST PROFITS FROM TRANSACTIONS PURSUANT TO THIS AGREEMENT OR LOST SAVINGS, ARISINGOUT OF OR RELATING TO ACTS OR OMISSIONS UNDER THIS AGREEMENT, REGARDLESS OF THE FORMOF ACTION, AND EVEN IF REASONABLY FORESEEABLE OR IF SUCH PARTY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES.
15.2 HEAVE’S MAXIMUM LIABILITY. HEAVE’s MAXIMUM LIABILITY TO TECHNICIAN UNDER THISAGREEMENT (REGARDLESS OF CAUSE OR FORM OF ACTION, WHETHER IN CONTRACT, TORT, OROTHERWISE) WILL BE LIMITED TO THE TOTAL UNDISPUTED AMOUNT OWED TECHNICIAN BY HEAVE INPAYMENT FOR TECHNICIAN’S FULFILLMENT OF ITS OBLIGATIONS UNDER THIS AGREEMENT. HEAVE’SLIABILITY UNDER THIS AGREEMENT SHALL TERMINATE ONE (1) YEAR FROM THE OCCURRENCE OF THEEVENT GIVING RISE TO A CLAIM, AND TECHNICIAN AGREES TO BRING ANY TYPE OF CLAIM AGAINSTHEAVE WITHIN THAT ONE (1) YEAR TIME PERIOD. THE TECHNICIAN HEREBY WAIVES ANY RIGHT UNDERANY STATUTE OF LIMITATIONS TO BRING ANY CLAIM AFTER SUCH ONE (1) YEAR TIME PERIOD.
15.3 CLAIMS AGAINST HEAVE ONLY. TECHNICIAN AGREES THAT ITS SOLE RECOURSE FOR CLAIMSARISING FROM OR RELATING TO THIS AGREEMENT AND/OR ANY JOBS UNDERTAKEN WILL BE AGAINSTONLY HEAVE OR HEAVE’S SUCCESSORS AND ASSIGNS. IN NO EVENT WILL THE SHAREHOLDERS,DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTICIPATING INSURERS, OR CUSTOMERS OF HOMEEBE PERSONALLY LIABLE OR NAMED AS PARTIES IN ANY ACTION BY TECHNICIAN. TECHNICIAN FURTHERAGREES THAT IT WILL STIPULATE TO A DISMISSAL WITH PREJUDICE OF ANY CLAIM BROUGHTCONTRARY TO THIS SECTION.
15.4 HEAVE PLATFORM PARTICIPATION.
15.4.1 THE INDEPENDENT TECHNICIAN’s PARTICIPATION IN THE HEAVE PLATFORM IS AT ITS SOLE RISK.THE TECHNICIAN IS RESPONSIBLE FOR DETERMINING WHETHER TO PARTICIPATE IN THE HEAVEPLATFORM.
15.4.2 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, HEAVE, ITS AFFILIATEDCOMPANIES, THE HEAVE PLATFORM, ANY PERSON PROVIDING SERVICES TO HEAVE, AND THEIRRESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, MANAGERS, EMPLOYEES AND OTHERREPRESENTATIVES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS ORIMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE AND NON-INFRINGEMENT.
15.4.3 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, HEAVE MAKES NOREPRESENTATION OR WARRANTY THAT (I) THE HEAVE PLATFORM WILL MEET THE INDEPENDENTTECHNICIAN’S REQUIREMENTS, (II) THE HEAVE PLATFORM WILL BE UNINTERRUPTED, (III) THE RESULTSTHAT MAY BE OBTAINED FROM PARTICIPATION IN THE HEAVE PLATFORM WILL BE BENEFICIAL TO THETECHNICIAN, OR THAT (IV) ANY ERRORS IN ANY OF THE SERVICES, INFORMATION, OR OTHER MATERIALOBTAINED BY THE TECHNICIAN THROUGH THE HEAVE PLATFORM WILL BE CORRECTED.
15.4.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY THE TECHNICIAN THROUGH ITSPARTICIPATION IN THE HEAVE PLATFORM IS DONE AT THE INDEPENDENT TECHNICIAN’S DISCRETIONAND RISK. THE INDEPENDENT TECHNICIAN WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITSCOMPUTER 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 INDEPENDENT
TECHNICIAN FROM ANY HEAVE PLATFORM USER OR THROUGH THE HEAVE PLATFORM SHALL CREATEANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
15.4.5 HEAVE SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KINDARISING OUT OF, IN CONNECTION WITH, OR RELATING TO, THE INDEPENDENT TECHNICIAN’SPARTICIPATION IN THE HEAVE PLATFORM OR THE INDEPENDENT TECHNICIAN’S DEALINGS WITHPARTICIPATING INSURERS OR CUSTOMERS IN CONNECTION WITH THE HEAVE PLATFORM, INCLUDINGANY LIABILITY (I) AS A PUBLISHER OF INFORMATION, (II) FOR ANY INCORRECT OR INACCURATEINFORMATION, (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF THE INDEPENDENTTECHNICIAN’S TRANSMISSIONS OR DATA, (IV) FOR STATEMENTS OR CONDUCT OF ANY PARTICIPATINGINSURED 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 (INCLUDINGDAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OFDATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THELIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDINGNEGLIGENCE) OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCHDAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THEBASIS OF THE BARGAIN BETWEEN HEAVE AND THE INDEPENDENT TECHNICIAN. THE INFORMATION ANDSERVICES OFFERED IN CONNECTION WITH THE HEAVE PLATFORM WOULD NOT BE PROVIDED WITHOUTSUCH LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATIONOR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVEDISCLAIMERS, LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO THE HEAVE NETWORK SERVICEPROVIDER. IN SUCH JURISDICTIONS, THE DISCLAIMER AND THE LIMITATIONS AND EXCLUSIONS OFLIABILITY ARE APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW.