Terms of Service
ACKNOWLEDGEMENT AND ACCEPTANCE OF GENERAL TERMS
Effective: September 15, 2021
This Terms of Service Agreement (“Agreement”) between you (“you” or “User”) and Band of Hands, Inc., its board, successors and assigns (“Band of Hands” or “we” or “us”) sets forth the terms under which you are allowed to use the BandofHands.com and Band of Hands Professional Services (Bohps.com) websites and any web or mobile services or application (collectively, the “Sites”). These terms include the job search, hiring and payroll services (the “Services”) offered through the Band of Hands platform. If you do not agree with any of these terms, do not access or otherwise use the Sites and/or Services or any information contained on the Sites.
Band of Hands is a technology platform that allows registered users to obtain a suite of payroll and human resource tools with a geographically distributed network of Workers for various short term and temporary engagements. Companies that sign up for Professional Services will have access to a third-party professional Payroll Service that serves as the Employer of Record for the Workers that are contracted to work for the Company. The Workers available on the sites are classified as W-2 Employees, which will be addressed more specifically in following sections.
Your continued use of the Sites or Services after the new effective date of a revised version of this Agreement constitutes your acceptance and agreement to be bound by the revised terms of service. You are responsible for regularly reviewing this Agreement for updates and modifications to its terms.
1.1 Definitions Capitalized terms are defined as set forth below or elsewhere in the Agreement.
“Users” is a collective term for all Users, whether it be a Company or Worker that signed up to access the Site under any capacity.
“Company” is any Individual or Business that uses the Site for posting available jobs, hiring applicants and paying the Workers using the platform services. The term Company is synonymous with a paying subscriber or a paying client.
“Worker” is considered an Individual who is seeking to find available work as a W-2 Worker.
Web and Mobile App or “Application” means any and all of the software used by Band of Hands in connection with the Service.
“Job Posting” means a request for a Service or required Work that is needed to be completed which includes a full description of the details needed to engage Workers. Once the Company and Worker have agreed upon the terms of the Job pursuant to Section 2, the Job becomes active for processing time-tracking and payroll.
“EOR” is the abbreviation for Employer of Record also known as Service Provider.
1.2 Sites and Services are intended for use by Individuals seeking various contingent jobs (also referred to herein as a “User-Worker”), and for Individuals and Companies seeking candidates for various jobs (also referred to herein as a “User-Company-Job Poster”). An active and approved Company may create a job through the Site, including a description of the services sought, hourly pay, and a timeline for completion of the services, which can be instantly available for Workers to view and respond at their free will or a private post if needed to direct to select individuals. These Terms and Conditions of Use (“Terms”) apply to both Workers and Companies who are called Users that use the Platform (collectively, “Users” who may also be referred to throughout these Terms in the second person as “you”) and accordingly govern your access to and use of the Band of Hands Platform or Sites.
Service Provider will provide “back office” services through its technology platform to include payroll and payroll tax services, human resources support, time & attendance reporting, automated recruiting assistance, onboarding/offboarding transactions, and act as the Employer of Record for those individuals that are placed on the platform.
2. GENERAL PROVISIONS
2.1 Sites License Subject to and conditioned on your compliance with this Agreement, and all other Sites’ Policies, Band of Hands grants you a limited license to access and use the Sites for the purpose of receiving the Sites’ Services available and authorized from the Site. Without limiting the generality of the foregoing, you acknowledge that Band of Hands expressly prohibits and you agree not to:
• Use the Platform, Site or Services for any purpose other than to identify work opportunities for yourself, or to identify prospective applicants for job opportunities.
• Provide any false or misleading information about your identity, the work available or employment information provided by you to Band of Hands in relation to your use of or access to the Sites and/or Services;
• Log into an account with a password not assigned to you;
• Impersonate any other person or User of the Site and/or Services;
• Access personally identifiable information not intended for you;
• Use any content of the Sites on any other website or in a networked computer environment for any purpose except your own viewing;
• Access or use the Platform, Site or Sites’ Services for any reasons that are in competition with Band of Hands;
• Sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site in any way for any public or commercial purpose without prior written consent of Band of Hands or the rights holder;
• Frame or link to the Sites except as permitted in writing by Band of Hands;
• Attempt to reverse engineer or attempt to interfere with the operation of any part of the Sites unless expressly permitted by applicable law;
• Take any action that imposes or may impose an unreasonable or disproportionately large burden on the Sites’ infrastructure.
• Include any hyperlinks or any misleading, irrelevant and/or hidden keywords in any content posted by you.
• Intentionally expose the Sites and/or Services to any computer virus or any other program or code intended to disrupt or disable to operations of the Sites and/or Service;
• Use any robot, spider or other program or device to retrieve or index any portion of the Band of Hands and related Sites
• Harvest or otherwise collect information about other users for any purpose other than use of the Site and/or Services as expressly permitted herein.
• Use the Site and/or the Services to violate any applicable law or regulation, including, without limitation, the infringement of any copyright, trademark, trade secret or other intellectual property right of others, or violate the privacy or publicity rights of any other person.
• Post any content or information that is abusive, defamatory, discriminatory, hateful, obscene, vulgar, threatening, or otherwise objectionable.
• Harass, stalk, or otherwise subject any other user of the Sites and/or Services to unwanted and/or inappropriate contact.
• Post any position or business opportunity which requires payment from the applicant or requires recruitment of other individuals, sub-distributors or sub-agents such as a multi-level marketing scheme, pyramid scheme, franchise or distributorship arrangement.
• Send unsolicited mail or e-mail, make unsolicited phone calls or send unsolicited faxes and/or advertise any products or services by directly posting within the Services or by making unsolicited contact with any user via email, telephone, postal mail, or any other method of communication.
• Make any changes, additions and/or deletions to any content posted by any user without the express written authorization of the other user.
2.2 License Termination This limited license terminates automatically, without notice to you, if you breach this Agreement or any other of the Sites’ policies, and Band of Hands may remove your postings from the Site and/or the Services with or without cause. Upon any termination of this limited license, you agree to immediately destroy any electronic or printed materials and cease using the Sites and Services. However, cancellation of this License and Agreement shall not relieve any party of their obligations relative to any Service Engagements that have been entered into but not completed at the time of the cancellation.
Any Company that wishes to terminate their subscription at the end of their cycle must give written notice of at least 30 days before their next billing period. Written notice can be submitted via email to: firstname.lastname@example.org. In addition, any Company that has terminations of either an Administrator or authorized users is responsible to deactivate their statuses on the Company’s Band of Hands account through their settings.
2.3 Band of Hands Trademark Our licensors retain all of their respective rights, title, and interest in and to all patent rights, inventions, copyrights, know-how, and trade secrets relating to the Platform and Sites. Band of Hands’ logos and names are trademarks of Band of Hands (See Trademarks & Copyrights section below for additional information). All other product names, company names, marks, logos, design marks and symbols on the Sites may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of Band of Hands’ or any third party’s intellectual property rights, whether by estoppel, implication, or otherwise.
2.4 Band of Hands Accounts In order to access certain Services of the Sites, Band of Hands requires you to become a registered user by setting up an account with a username and password (“Account”). By setting up and verifying an Account, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. When creating your individual access, do not provide any false personal information or create an account for another without such other’s permission. Whether you act as an individual, an administrator and/or authorized party for registering a Company, You agree to comply with the procedures set forth by Band of Hands regarding account registration (including your required current contact information and email address), password protection, banking information confidentiality, and other requirements. You agree to assume sole responsibility for the security of passwords issued to you. You also agree to use your best efforts to prevent any third party from obtaining your password. You agree to notify us if your password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Please note that we will never ask for your Band of Hands account password via email. If you forget your password, you must use our secured password reset protocol in place. Band of Hands may cancel or suspend passwords at any time, including in the event of misuse of any and the reissuance or reactivation of passwords.
2.5 Identity Verification and Background Checks All Users understand that individuals seeking work on the Platform must provide identity documentation and eligibility to work using the Workbright Onboarding interface within the Band of Hands platform before they can begin work. All files are secured and encrypted by this third party provider using bank-grade 256-bit SSL certificates. For more details on the security of the Workbright interface, visit https://workbright.com/security/. In addition, some Companies may require a current Background Check and Motor Vehicle Report to include but not limited to verification of identity and a comprehensive criminal background check, at the County, State and local level using third party services as appropriate and requested. Companies that do require BackGround Checks (BGC) and/or MVR can utilize the services provided by third party sources such as www.sterlingcheck.com within the platform. The Company credit card on file within the platform will be charged immediately for the cost of the reports requested and completed by Sterling. Users agree to the Terms of Service of this Third Party supplier of BGC and MVR as often as required in compliance with federal and state laws and the Fair Credit Reporting Act. In some cases, these Background Checks may take up to two weeks for processing. Although Band of Hands may or may not directly perform Background Checks on Users, as an EOR (Employer of Record) they have the option to utilize BGC from a Third Party source before approving the hiring of W-2 Workers by registered Companies. The BGC is part of the on-boarding process to become a W-2 Worker of the EOR for those clearly defined W-2 jobs. Band of Hands cannot confirm that each User is who they claim to be and therefore, Band of Hands cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Third Party Services. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other individuals whom you do not know. Any questions, disputes or discrepancies with any BackGround Check or Motor Vehicle Report must be directed to the Third Party supplier that furnished the report.
For Companies that require Drug Screens of Workers, they agree to contact email@example.com for further instructions and assistance.
3. AGREEMENTS, SERVICE FEES & PAYMENTS
3.1 Job Agreements-Companies and W-2 Workers. Once you have registered an Account on the Site and become an active User, Companies may create a W-2 job post on the Site, including a description and details of the services required, the hourly pay rate, and a timeline for completion of the services (the “Job”).
As a Company, you acknowledge and agree that you will be able to Post jobs and view applicants but will not be allowed to hire specific Workers until the required paperwork with the Employer of Record is completed and approved. You agree to pay Workers a pay rate that meets the average federal and/or state minimum wage requirements regardless of any check fees, Worker Comp rates, or SUTA withholdings that will be debited from the Company account. Company agrees to be bound by all terms of service, Employer of Record agreements with Band of Hands, and all Third-party vendors associated with the platform such as Paychex for Payroll, Workbright for Worker Onboarding, and Sterling Background checks. All Third-party vendor agreements are disclosed and signed before the Service Provider can perform any and all services in connection with this agreement.
As a Worker, you are able to view posted Jobs and apply to a W-2 job of interest or that is in line with your qualifications and experience. In order to be authorized to start work as a W-2 Worker, you agree to complete the on-boarding paperwork that is sent by the Employer of Record utilizing the assigned WorkBright onboarding portal. Upon completion of the I-9 verification and acceptance by the Employer of Record, you will receive a notification that you are approved to start work for the hiring Company. For all W-2 jobs, you agree that payments will be processed for work performed in the previous week(s) as identified in the company payment portal assigned via Paychex Flex and in the associated job details. All time worked must be submitted by Workers for Company approval by 8 am Pacific each Monday morning to be included in the processing of scheduled paydays for each Company using this platform.
The Worker understands there are no processing or per check fees associated with the W-2 jobs they obtain and perform from the Band of Hands platform.
Worker agrees to provide the benefit of their skills and experience for the express purpose of providing Services to all applied positions/jobs using the Employer of Record’s technology platform. Workers shall conduct themselves with the highest professional standards of practice in the industry, will comply with all applicable laws, and the Assigned Company’s safety rules, if any, in the course of performing such Services. Further, Worker agrees to provide timesheets and status reports to the Employer of Record on a weekly basis. Worker also agrees to abide by the policies, procedures, and instructions of both the Employer of Record and the Assigned Company. These include Handbooks and any instructions that may be provided in whatever form is made available (i.e. written, electronic, etc.).
Worker has no authority to act on behalf of or to enter into any contract, incur any liability, or make any representation on behalf of the Employer of Record, without the express consent of a duly authorized representative of the Employer of Record in advance.
3.1.2 Service Fees — Companies agree to pay a flat fee per pay period per employee that is charged to the credit card on file. This charge occurs on the same day of payroll submission to Paychex. The credit card payment gateway utilized for this charge is handled through Stripe, which is a global company that primarily offers payment processing software and application programming interfaces for e-commerce websites and mobile applications. See https://stripe.com/ for additional information, including Stripe’s policies and procedures). Refer to the Employer of Record agreement that is signed before an account is activated for specific per check details. Any fees associated with Stripe are consolidated with the per check fees for the Platform Services.
In order to use certain services on the Site, a Company (User) must register and provide at least one valid Payment Account (“Payment Account” for Company utilizing Band of Hands service means a valid credit card issued by a bank, a debit card, or such other method of payment acceptable to Band of Hands;) likewise, a Company (User) will be required to provide verification of a Payment Account for the processing of payroll with Paychex. This includes a valid checking account deposit slip or business check that references the transit routing and account number. The completed agreement with Paychex is required before a Company can begin processing payroll for their Workers.
By providing Payment Account information through the Site you represent, warrant, and covenant that: (a) you are legally authorized to provide such information to us; (b) you are legally authorized to perform payments using the Payment Account(s); and (c) such action does not violate the terms and conditions applicable to your use of such Payment Account(s) or applicable law. When you authorize a payment using Payment Account via the Sites, you represent, warrant, and covenant that there are sufficient funds or credit available to complete the payment using the designated Payment Account.
A Worker (User) must provide a “Receiving Payment Account” (for Workers means a valid checking account with a transit routing and account numbers) or other account information for which funds for processed payroll can be deposited. If no bank account is furnished within 24 hours of start of job, the Worker may be required to contact the Company to activate a Paycard using Netspend or Skylight. Worker agrees and understands there could be payment delays with the first payment if correct information is not supplied to Workbright. Workers that require paper check disbursements each pay period agrees to send notice to: firstname.lastname@example.org
3.1.3 Third Party Beneficiary Company and Worker each acknowledge and agree that the value, reputation, and goodwill of the Sites depend on their performance of their covenants and agreements set forth in an agreed upon Job. Company and Worker appoint Band of Hands as a third party beneficiary of the Job for purposes of enforcing the obligations and benefits of the terms of this Agreement. Company and Worker further acknowledge and agree that Band of Hands has the right to take such actions with respect to a Job or their Accounts, including but not limited to suspension, termination, or any other legal actions as Band of Hands in its sole discretion deems necessary to protect the value, reputation, and goodwill of the Sites.
3.2 Governing Law and Agreements This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of California without regard to the doctrine of conflicts of laws. The Parties agree and consent to exclusive jurisdiction and venue in the State and Federal courts located in the City and County of San Diego, California for any proceedings arising out of this Agreement.
3.2.1 Engagement of Job The engagement and management of a Job is between the Company posting the Job and a Worker. Each Company and Worker agree to execute a contract in accordance with the details of the agreement for the Job, this Agreement, and any other specified content or contracts as outlined by the Employer of Record. A Company is responsible for managing, inspecting, accepting and approving payments using Paychex Flex for satisfactory services and/or deliverables of a Job in a timely manner. A Worker is responsible for carrying out the performance, quality, and execution of the services specified for a Job in a timely manner. Band of Hands will not control the manner in which a Worker operates in carrying out a Job, and will not provide any Worker with any materials, information, tools, or equipment to complete any Job. Both Company and Worker agree to act with good faith and fair dealing in carrying out a Job.
3.2.2 Relationship to Payrolling Service Band of Hands or third parties may make available third-party products or services, including, for example, mobile applications, integrations, and implementation and other services related to Payroll/HR activities (“Third-Party Services”) that User/Company may elect to purchase or use. Any acquisition by User/Company of such Third-Party Services and any exchange of data between User/Company and any Third-Party Service or Third-Party Service provider is between User/Company and the applicable third-party provider.
If User/Company elects to use any Third-Party Services with the Services, User/Company grants Band of Hands permission to allow the Third-Party Service and its provider to access Company Data as required for the interoperation of that Third-Party Service with the Services. Band of Hands is not responsible for any disclosure, modification, or deletion of User/Company Data resulting from access by such Third-Party Service or its provider. User/Company is responsible for directly negotiating any limits on the use of User/Company Data by the Third-Party Services directly with the Third-Party Services.
The Services may contain features designed to interoperate with Third-Party Services. To use such features, User/Company may be required to obtain access to such Third-Party Services from their providers, and may be required to grant Band of Hands access to User/Company account(s) on such Third-Party Services. Band of Hands cannot guarantee the continued availability of such Services features, and may cease providing them without entitling User/Company to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Services features in a manner acceptable to Band of Hands.
All costs and fees agreed to by User/Company and Third-Party Services may be invoiced and charged to the Company card on file with Band of Hands or between User/Company and the applicable third-party provider.
3.2.3 Approving Hours Generally for W-2 Work When Companies hire W-2 Workers through the Band of Hands Site, the platform gives them the ability to approve and pay hours worked utilizing software deployed by the Employer of Record, Paychex Flex. In some cases, depending on the time tracking system used, hours worked are submitted for approval by the Worker and MUST be submitted by 8 AM Pacific time every Monday for all work completed in the previous calendar week. (Calendar week begins at 12 am each Monday). All W-2 Workers will submit hours to the registered Company rep for each Job via the Site (if available) or manually via email. The Worker is responsible to submit their hours worked to the Company for each and every Job between such Company and Worker. Before submitting hours via Band of Hands apps (when available), Worker must verify and confirm the accuracy of the number of hours. Once a Worker submits hours worked to a Company, the Company shall review and authorize the Payment to the Worker directly into Paychex Flex. By creating and submitting hours, Worker represents and warrants that Worker has completed the referenced job hours satisfactorily and as agreed. Payroll is distributed to Workers according to the frequency listed and agreed in each job accepted (see job details.) To learn more, see Addenda A for a sample of a similar agreement that is created between Employer of Record and Employee. BAND OF HANDS ENCOURAGES ALL USERS TO CAREFULLY REVIEW SUBMITTED HOURS BEFORE AUTHORIZING ANY TRANSACTION RELATED TO A JOB.
3.2.4 Hours Worked Disputes If a Company reasonably disputes submitted hours, the Company agrees to cooperate fully to verify any disputed amounts. Any disputed hours by a Company will be handled by Dispute Resolution by the Employer of Record. For more information, contact Payroll at (858) 284-3703 or email to: email@example.com Also see the Arbitration in Section 8 for more details.
3.2.5 Other Terms All W-2 Workers agree to submit their hours worked through the Band of Hands platform (as available) or via email on a weekly basis no later than Monday by 8 AM Pacific to the Company lead of each specific job worked. These weekly submissions include hours for the previous calendar week (Monday to Sunday). Some time tracking systems that are required by the Employer of Record and the hiring company may result in the Employee making two timecard entries, which we are working on a solution. Any timecard for hours submitted and not approved by the Company will receive a phone call and/or email from the Employer of Record. All Users whether as a Company approving hours worked or a Worker submitting hours worked on the Band of Hands platform both agree to submit hours worked to prevent Payroll processing delays.
All approved hours are submitted into the Paychex Flex system at least three days before the scheduled payday frequency. (ie: weekly, bi-weekly and semi-monthly.) The bank draft for debiting of the funds will occur on each Company account prior to the Payroll being deposited to Workers accounts. This typically is one day prior to payroll deposits to Workers. Companies understand there is no financing available for Payroll although Paychex does offer Paychex Promise that each Company agrees to its terms when signing onto the Band of Hands platform. This paperwork and agreement is included when Company’s initiate onboarding with this Third Party. Paychex Promise can be activated four times a calendar year. (See specific terms in original agreements signed with Paychex.) See Addenda B for a sample contract that is utilized between the Employer of Record and the subscribing Company.
The Workers Comp rates that are disclosed to subscribing members in the contract between the Employer of Record and the subscribing Company is between both parties and is not published online in this terms of service.
Any party that is interested in learning more about Insurance classifications and policies that are held by Band of Hands Inc. and Band of Hands Professional Services should email: firstname.lastname@example.org
5.0 RATINGS, REVIEWS, FEEDBACK AND CLASSIFICATIONS
5.1 Ratings and Reviews For the benefit of other Users of the Sites, Band of Hands encourages objective balanced feedback about Users with whom you have transacted. You acknowledge and agree that feedback results for you will consist of comments, ratings, and other feedback left by other Users, as well as composite feedback based on individual ratings that Band of Hands may make available to other Users. Band of Hands provides to the public a feedback system as a means through which Users can share their opinions. Band of Hands does not monitor or censor these opinions except as set forth below. Band of Hands does not investigate any remarks posted by Users for accuracy or reliability, but may do so if a User requests that Band of Hands do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your comments if such remarks are legally actionable or defamatory. Band of Hands is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Band of Hands reserves the right, but is under no obligation to remove posted feedback or information that in Band of Hands’ sole judgment violates this Agreement or negatively affects the Band of Hands community or operations.
6. USER SUBMISSIONS
6.1 Authorizations When you post any job information, data, or other content on the Sites, you represent and warrant that you have the right, power, and authority to post that content and grant the licenses specified below. You further represent and warrant that by posting such content you will not violate third-party rights of any kind, including, without limitation, any intellectual property rights, rights of publicity, and privacy rights. To the extent your content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such content and that Band of Hands may exercise the rights to your content granted under this Agreement without any liability or obligation for any payment.
YOU RETAIN ALL OF YOUR OWNERSHIP RIGHTS IN ANY CONTENT YOU POST ON THE SITES. You grant to Band of Hands and our successors and affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such content and your name, voice, and/or likeness as contained in your content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Sites and Band of Hands’ (and our successors’ and affiliates’) , including, without limitation, for promoting and redistributing part or all of the Sites (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user a non-exclusive license to access your content through the Sites, and to use, reproduce, distribute, display, and perform such content, only to the extent permitted through the normal functionality of the Sites and subject to all applicable confidentiality and other provisions of the Agreement.
The licenses granted by you will terminate within a commercially reasonable time after you remove or delete your content from the Sites, except that you grant Band of Hands and our successors and affiliates the irrevocable and perpetual license to retain and use, but not publicly display, distribute, or perform, server or archival copies of all content that you have removed or deleted to the extent permitted by applicable law.
Any authorized User that is assigned as an Administrator or Representative of a Company may be terminated at any time. The history of jobs that the terminated representative registered will be automatically transferred to the originating Owner/User of the account.
6.2 Third Party Content The Sites may provide certain information, content, applications and links from third parties, including other users of the Sites (“Third Party Content”). Such Third Party Content is owned and/or operated by third parties and/or their licensors. Your use of any such Third Party content or websites are governed by the terms and policies of those third parties. You are responsible for deciding if you choose to access any third party website or Third Party Content by clicking on a link or installing an application. Your use of any third party links or third party services is at your own risk and you should be aware that the Band of Hands’ terms and policies no longer govern. BAND OF HANDS DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO CONTENT PROVIDED BY THIRD PARTIES, INCLUDING ALL IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.3 Trademarks and Copyrights in the Services are the property of Band of Hands or their respective owners. You may not remove or alter any Trademarks. You may not use any trademark displayed on the Sites or in the Services without the express prior written permission of Band of Hands or the respective owner, and nothing contained on the Sites grants by implication, waiver, estoppel or otherwise, any right to use such Trademarks. All of the information and content provided on the Sites and in the Services, including but not limited to, text elements, Sites’ design, images and icons, as well as the selection, assembly and arrangement thereof, are the sole property of Band of Hands, Copyright © 2015, unless otherwise specified. All rights not expressly granted herein are reserved. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. Our Intellectual Property Policy (“IP Policy”) is herein incorporated by reference, and a copy of this policy can be found at the following link: https://www.bandofhands.com/privacypolicy. We strongly encourage you to review our IP Policy as it explains additional important information regarding intellectual property rights.
8. LIMITATIONS, INDEMNITY, WARRANTIES DISCLAIMERS
You agree to defend, hold harmless, and indemnify Band of Hands, our affiliates, our and their respective officers, directors, employees, attorneys, agents, joint ventures, and our and their respective successors and assigns (each such party an “Indemnified Party”) from and against any and all losses, costs, expenses, damages, and other liabilities (including reasonable attorneys’ fees and costs) incurred by an Indemnified Party arising from or related to any cause of action, claim, suit, proceeding, demand, or action brought by a third-party against an Indemnified Party in connection with your use of the Sites and/or Services, including but not limited to: (a) use of the Sites; (b) breach of any provision of this Agreement; (c) decision to submit a post(s) and accept offers from other Users of the Sites and/or Services; (d) any allegation of any infringement, misappropriation, or other violation of any intellectual property rights by you or your agents, including by any Work Product provided by you or your agents; (e) any breach of contract or other claims made by Users with which you conducted business through the Sites; (f) any claim that a Worker was misclassified as an Independent Contractor; (g) any liabilities arising from a determination by a court, arbitrator, government agency, or other body that a Worker was misclassified as an employee (including, but not limited to, taxes, penalties, interest, and attorney’s fees); (h) any claim that Band of Hands was an employer or joint employer of a Worker; (i) any claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation; or (j) any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. The foregoing indemnity will include, without limitation, such cause of action, claim, suit, proceeding, demand, or action arising out of the negligence of any Indemnified Party; provided that the foregoing indemnification will not extend to the gross negligence or willful misconduct of an Indemnified Party.
8.1 WARRANTY DISCLAIMER YOU ACKNOWLEDGE AND AGREE THAT THE SITES AND THE SERVICES ARE BEING PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, AND MAY INCLUDE CERTAIN ERRORS, OMISSIONS, OUTDATED INFORMATION WHICH MAY AFFECT THE QUALITY OF CONTENT AND INFORMATION. YOU ACKNOWLEDGE THAT THE CONTENT AND INFORMATION HAVE NOT BEEN INDEPENDENTLY VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY BAND OF HANDS, AND AGREE THAT BAND OF HANDS DOES NOT WARRANT THE ACCURACY OR TIMELINESS OF THE CONTENT AND INFORMATION AND FURTHER AGREE THAT BAND OF HANDS HAS NO LIABILITY FOR ANY ERRORS OR OMISSIONS IN THE MATERIALS, WHETHER PROVIDED BY BAND OF HANDS OR ITS LICENSORS.
BAND OF HANDS, FOR ITSELF AND EACH OF ITS LICENSORS, MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION OR CONTENT CONTAINED ON THE SITES AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY CONTENT. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES AND/OR THE SERVICES AND ANY CONTENT, INFORMATION OR OTHER MATERIAL CONTAINED ON THE SITES IS PROVIDED TO YOU ON AN “AS IS” AND “WHERE-IS” BASIS, AND IS FOR PERSONAL USE OR INTERNAL BUSINESS USE ONLY. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED.
BAND OF HANDS MAKES NO REPRESENTATION THAT THE CONTENT AND INFORMATION ON THE SITES CONFORM TO YOUR LOCAL LAWS, AND IF YOU ARE ACCESSING THE SITES FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ALONE ARE RESPONSIBLE FOR COMPLIANCE WITH YOUR LOCAL LAWS. THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
8.2 Other Disclaimers and Limitations We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from ever, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information, or information about the entity that you represent, at your own risk. Band of Hands is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to: (a) your use of or your inability to use the Sites or Services; (b) delays or disruptions in the Sites or Services; (c) viruses or other malicious software obtained by accessing, or linking to, the Sites or Services; (d) glitches, bugs, errors, or inaccuracies of any kind in the Sites or Services; (e) damage to your hardware device from the use of the Sites or Services; (f) the content, actions, or inactions of third parties’ use of the Sites or Services; (g) a suspension or other action taken with respect to your account; (h) your reliance on the quality, accuracy, or reliability of postings, user profiles, recommendations, reviews and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Sites; or (i) your need to modify practices, content, or behavior or your loss of or inability to do business as a result of changes to the Agreement.
8.3 LIMITATION OF LIABILITY IN NO EVENT SHALL WE OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL OUR LIABILITY TO YOU FOR ANY ACTION OR CLAIM RELATED TO THE SITES OR SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF: (A) $100 OR (B) THE AGGREGATE AMOUNT OF MONIES ACTUALLY COLLECTED BY US FROM YOU FOR THE SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY, WHICHEVER IS LESS. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8.4 STATE SPECIFIC RELEASE YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
8.5 State Specific Legal Notice Band of Hands, located at 9320 Chesapeake Drive Ste 101, San Diego, California 92123, is the provider of the electronic commercial service on the Site. Users are notified, via the Site, in advance regarding any applicable service charges. The Consumer Information Division of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, CA 95834 or by calling 1-800-952-5210. Upon your request, you may have this Agreement sent to you by email. Please contact Band of Hands to resolve a complaint regarding any aspect of service relating to the Site by writing to the attention of Customer Support at the above address or contact us through Customer Support at: (858) 284-3700 or email@example.com.
8.6 Zero Tolerance Policy Band of Hands does not tolerate the use of alcohol or drugs by anyone performing any job on the site, including Pick Up and Delivery services, or any other service, if impaired. If you believe that the Worker may be under the influence of drugs or alcohol, please end the Job immediately and notify Band of Hands by contacting Help within the Site. You can also get in contact by email: firstname.lastname@example.org.
9. DISPUTES; ARBITRATION; WAIVER OF TRIAL BY JURY; CLASS WAIVER
Band of Hands prefers to address your concerns without the need for formal legal action. Before you initiate any claim against Band of Hands, you agree to try and resolve your dispute informally by contacting us at: email@example.com or (858) 284-3700. We will attempt to resolve your dispute as quickly as possible and/or within 30 days of receipt of your submission.
9.1 PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS
In the unlikely event that Band of Hands is unable to resolve your dispute within 30 days of receiving your submission, you and Band of Hands agree that all disputes or claims that have arisen or may arise between you and Band of Hands relating to or arising out of the Agreement and/or your use of the Sites and/or Services shall be resolved exclusively through final and binding arbitration under the American Arbitration Association’s (“AAA”) rules for arbitration of commercial and consumer-related disputes, and you and Band of Hands expressly waive trial by jury. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If AAA is not available to arbitrate, the parties shall select an alternative dispute resolution provider. The AAA rules will govern payment of all arbitration fees. The arbitration may be conducted in person, through the submission of documents, by phone, or online. Except as otherwise provided here, arbitration will be conducted in San Diego County, California.
You also agree that all claims and disputes must be arbitrated or litigated on an individual basis and not on a class or other collective action basis, and claims of more than one user cannot be arbitrated or litigated jointly or consolidated with those of any other user. Accordingly, there will be no right or authority for any dispute to be brought, heard or arbitrated as a class or other collective action. This class and collective action waiver shall not be severable from this Agreement in any case in which the dispute is filed as such a class or collective action and a civil court of competent jurisdiction finds that this waiver is unenforceable. In such instances, the class or collective action must be litigated in a civil court of competent jurisdiction. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement. This arbitration provision will survive the termination of your relationship with Band of Hands.
9.2 Mandatory Binding Individual Arbitration and Class Action Waiver (“Arbitration Agreement”) The Company and Worker, when hired as an Independent Contractor, mutually agree to resolve any justifiable disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and, except as otherwise provided in this Arbitration Agreement, shall apply to any and all claims arising out of or relating to this Contract, and Workers’ relationship with the Sites, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Workers’ relationship or the termination of that relationship with the Sites. The agreement by the Worker and the Sites to mutually arbitrate disputes provides consideration for this Arbitration Agreement. This Arbitration Agreement applies to claims and disputes that the Sites may have against the Worker and/or that the Company may have against the Sites, and (1) its affiliates and partners (2) its officers, directors, employees, or agents in their capacity as such or otherwise, and/or (3) all successors and assigns of any of them; any and all of which may enforce this Arbitration Agreement.
The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or alleged waiver of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. However, as stated in the “Class Action Waiver” below, the preceding sentence shall not apply to the clause entitled “Class Action Waiver.”
This Arbitration Agreement does not apply to any claim that may not be arbitrated as provided by an Act of Congress. This Arbitration Agreement also does not apply to Private Attorney General Action claims under California law, which may only be brought in a court of law—not in arbitration.
9.2.(a) If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by Workers and/or Company must be delivered to firstname.lastname@example.org.
9.2.(b) Class Action Waiver. The users of Sites mutually agree that by entering into this Arbitration Agreement, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”). Notwithstanding any other clause contained in this Arbitration Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
9.2(c) Users agree and acknowledge that entering into this Arbitration Agreement shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), except as follows:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.
(2) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county in which User performed their contractual duties obtained from the Sites.
(3) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that the Sites shall pay all of the Arbitrator’s fees and costs.
(4) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(5) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(6) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(7) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
(8) Either the Sites or Users may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual; provided, however, that all determinations of final relief shall be decided in arbitration, and pursuing the temporary or preliminary injunctive relief shall not constitute a waiver of rights under this agreement to arbitrate.
9.2(d) Regardless of any other terms of this arbitration agreement, claims may be brought before and remedies awarded by an administrative agency (such as the National Labor Relations Board, Occupational Safety and Health Administration, Equal Employment Opportunity Commission, or U.S. Department of Labor) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act.
9.2(e) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. Except in addition to as stated with regard to the Class Action Waiver, above, in the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. The Arbitration Agreement is a contractual agreement to mutually arbitrate claims; therefore any statements in any Company handbooks or policies that otherwise disclaim contracts do not apply to this Arbitration Agreement.
9.3 Modifications to Application Band of Hands reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. However, as stated earlier, the Arbitration Agreement will survive any termination or expiration of this Agreement and/or any modification or termination of the Application or the Service. You agree that Band of Hands shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Services.
9.4 W-2 Workers All Workers that are hired and performed work as a W-2 Worker on the Band of Hands sites agree to the Terms and Conditions of the Employer of Record including their arbitration clauses and agreements that were signed before work commenced. For complete details of those agreements, contact email@example.com.
10. GENERAL PROVISIONS
10.1 Choice of Law. You agree unconditionally and mandatorily to the exclusive venue and jurisdiction for any dispute arising under the Agreement in the state or federal courts of San Diego County, California. This Agreement shall be deemed to have been executed and delivered within the State of California, and the rights and obligations hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California.
10.2 Compliance with Law. You are responsible for compliance with applicable U.S. state, U.S. federal, foreign or international laws, regulation and treaties, keeping in mind that access to the contents of the Sites may not be legal for or by certain persons or in certain countries.
10.3 Modification and Waiver. Band of Hands will not be considered to have modified or waived any of our rights or remedies under this Agreement unless the modification or waiver is in writing. No delay or omission by Band of Hands in exercising its rights or remedies will impair its rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
10.4 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision shall be given its nearest legal meaning, or be construed as deleted, as such authority determines, and the remaining provisions shall remain in full force and effect.
10.5 Assignment or Transfer You will not transfer, assign or delegate your rights or obligations (including your Account) under this Agreement to anyone without the express written permission of Band of Hands, and any attempt to do so will be null and void. Band of Hands may assign this Agreement in its sole discretion.
10.6 Force Majeure Except for the payment of fees to Band of Hands, neither of the parties to this Agreement shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay.
10.7 Notices Band of Hands may give notice by means of a general notice on the Services, 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 Band of Hands, with such notice deemed given when received by Band of Hands, at any time by first class mail or pre-paid post to Band of Hands, Inc., 9320 Chesapeake Drive Ste 101, San Diego, CA 92123.
10.8 Headings and Labels Captions and/or headings contained herein are for convenience only and are not meant to limit the terms contained herein.
10.9 Integration This Agreement and all documents referenced in this Agreement (including the policies listed and available by hyperlink) comprise the entire agreement between you and Band of Hands with respect to the use of the Sites and Services and supersedes all prior agreements between the parties regarding the subject matter contained herein as well as any conflicting or inconsistent terms in any website that links to or are linked from the Sites.
Sample Worker Agreement (Reference only)
This Agreement, effective as of the date below, is between Band of Hands Professional Services (Employer of Record) and the Individual (Employee), also known jointly herein as the Parties, to establish additional terms and conditions of employment between the Parties. This Agreement does not form a contract for any specific term, nor does there exist any intent between the Employer of Record and the Employee to create anything other than an “Employment At Will” relationship through the performance of services between the respective Parties.
The Employer of Record desires to hire the Employee to provide certain services to Assigned Compan(ies) who wish to use the Employer of Record’s technology platform upon which to perform services as defined herein.
The Parties hereto agree as follows:
1) RELATIONSHIP OF THE PARTIES
The Employer of Record agrees that it shall assume responsibility for all federal, state, and local withholding taxes, social security taxes, workers compensation insurance fees, sales taxes and any and all other fees, taxes, or levies associated with hiring a temporary W-2 Employee in the listed state of which Employee was hired and accepted the job. Employee agrees to perform the duties and responsibilities as designated by the Assigned Company to the best of their ability while engaged with the assignment.
Employee agrees to provide the benefit of their skills and experience for the express purpose of providing Services to all applied positions/jobs using the Employer of Record’s technology platform. Employee shall conduct themselves with the highest professional standards of practice in the industry, will comply with all applicable laws, and the Assigned Company’s safety rules, if any, in the course of performing such Services. Further, Employee agrees to provide timesheets and status reports to the Employer of Record on a weekly basis. Employee also agrees to abide by the policies, procedures, and instructions of both the Employer of Record and the Assigned Company. These include Handbooks and any instructions that may be provided in whatever form is made available (i.e. written, electronic, etc.).
Employee has no authority to act on behalf of or to enter into any contract, incur any liability, or make any representation on behalf of the Employer of Record, without the express consent of a duly authorized representative of the Employer of Record in advance.
Employee shall be compensated at an hourly rate as listed in the specific job details of the applicable job that Employee applies and is hired by the Assigned Company on the Employer of Record platform. Employer of Record agrees to pay Employee on either a weekly, bi-weekly, or semi-monthly basis as pre-arranged with the Hiring Companies for all hours worked in that same pay cycle for the Assigned Company, as reflected in the submitted and approved timesheets and status reports.
Upon ratification, this Agreement shall remain in full force and effect between the Parties for an Indefinite term for as long as the Parties are engaged in Services as defined elsewhere.
Employee agrees not to compete with Employer of Record.
A) at any Assigned Company to which Employee did not have a previous relationship with, but Employer of Record did have same;
B) at any Assigned Company to which Employee was instrumental in helping Employer of Record establish a relationship with, so long as Employee was compensated for this act;
C) at any Employer of Record at which Employee gained access solely through the benefit of the relationship contemplated by this Agreement.
Employee further agrees that during said non-compete period, they will not, either directly, or indirectly, either for themselves or for any other person, firm, company, corporation or entity, solicit, divert, or take away any of the existing Customers or Clients of Employer of Record.
6) COMPETITION TERM
Employee agrees not to compete with Employer of Record during the life of this Agreement and for a period of one (1) year after this Agreement has terminated.
The Parties agree and covenant as follows:
Employee agrees to hold as confidential all matters discovered during the course of this Agreement which represent either a trade secret, proprietary information, and/or business confidential information disclosed by Employer of Record or Assigned Company in the normal course of business or as a result of this Agreement.
This trust shall remain in force in perpetuity and no disclosures may be made of these matters to the detriment of Employer of Record or Assigned Company, except by first receiving written release to disclose or unless directed to disclose during the normal course of performing assigned tasks under this Agreement.
It is also stipulated that disclosures required by statutory law, or other legal processes immune to resistance by Employee, are not covered by the terms of this Agreement. Employee has a right to disclose any and all information to an investigative body, which has exercised power of subpoena or other coercive process, in furtherance of an active investigation. Information which exists in the public domain, or which is independently discoverable by the public, is exempt from this confidentiality clause.
Employee will indemnify and hold the Employer of Record harmless, and will defend the Employer of Record against any and all loss, liability, damage, claims, demands, or suits and related costs and expenses to persons or property that arise, directly or indirectly, from acts or omissions of the Employee during the course of their assignment, or breach of any term or condition of this Agreement.
Employer of Record shall have the right to terminate the Agreement at any time for failure of the Employee to perform according to the requirements of the Assigned Company.
EMPLOYEE agrees to use his/her “best efforts” in the performance of any data processing systems and programming services provided with this Agreement. Should Employee desire to terminate this Agreement it is requested that a two (2) week written notification be provided to the Employer of Record.
Failure of either Party to comply with any term, condition, or clause of this Agreement shall entitle the offended Party to issue written notice requiring that the default or defect be corrected. If the default is not corrected 10 days after notice has been issued, the offended Party shall be entitled to immediately terminate the Agreement by issuing written notice, in addition to any and all other rights under this Agreement or otherwise in law.
11) AMENDMENTS TO THE AGREEMENT
No amendment to this Agreement shall take force until signed by both Parties and date. Additionally, amendments shall follow the general notice provisions of this Agreement to allow the Parties time to study the modified nature of the Agreement.
12) SCOPE OF AGREEMENT
This Agreement supersedes any and all earlier agreements between the Parties with respect to the services contemplated herein.
13) VENUE and JURISDICTION
The Parties stipulate that any legal actions arising from this relationship shall be brought in a court of the City of San Diego, State of California, and all other rights of venue and jurisdiction are hereby expressly waived.
14) SEVERABILITY and INVALIDATION
The Parties agree and stipulate that should any term or provision of this Agreement be found illegal or otherwise unenforceable, this shall not act to invalidate the whole of this Agreement, but shall, instead, cause the term or provision to be modified to the minimal extent necessary to render it enforceable or make it conform with the laws of the land, and the rights and obligations of the Parties shall then be construed and enforced accordingly, in a manner which preserves to the fullest permissible extent the stated intent and particulars of this covenant.
Clause and provision headings are for reference only and are not part of this Agreement.
The Parties agree and stipulate that all notice contemplated by this Agreement shall be in writing and that same shall be delivered to the Party for whom intended by U.S. mail, postage prepaid, and bear the address found under the signature of the Parties herein. The Parties further stipulate and agree that an electronic / email copy shall have the same force of delivery and may be used in place of an original sent by U.S. mail. Email address to be used is HR@bohps.com.
Unless explicitly stated elsewhere in this Agreement, all notices shall allow a period of five (5) days for notice by mail to be effective. The effective date of notice by email shall be the same day that said email is sent to the Party for whom it was intended.
IN WITNESS WHEREOF, the Parties hereto have ratified and executed this Agreement as of the date written below and acknowledge that they have read, understood, and agree to be bound by the entire Agreement and its duly ratified amendments in all terms and particulars. Employee accepts the obligations which this Agreement imposes upon the Employee without reservation. No promises or representations have been made to Employee to induce Employee to sign this Agreement. Employee signs this Agreement voluntarily. Signature of Individual / Employee___________________________________________ Printed Name _____________________________ Date: ___________________________
Authorized Signature of Band of Hands PS / Employer of Record
Sample Business Client Contract with Service Provider/ EOR (Reference Only)
Welcome to Band of Hands where we provide technology services for your business so you can focus on growing your business. This Client Services Business Agreement (“Agreement”) is entered into effective as of _________________ (the “Effective Date”) by and between Band of Hands Professional Services LLC (“Service Provider”) and _____________________ (“Client”), also known jointly herein as the Parties. This Agreement, with the terms and conditions as set forth, as well as those expressed on our website at www.bohps.com, represents the complete understanding between Service Provider and ______________________________ (“Client”).
Services Provided. Service Provider will provide “back office” services through its technology platform to include payrolling and payroll tax services, human resources support, time & attendance reporting, automated recruiting assistance, onboarding/offboarding transactions, and act as the Employer of Record for those individuals that are placed on the platform.
Term of Services. Services associated with this Agreement commence as of the first day of the first payroll period paid by Service Provider performing services as the Employer of Record on behalf of Client for a term of one year.
Services. During the Term of this Agreement, Service Provider will ensure that:
Assigned Workers’ wages are paid utilizing the Paychex Flex system which includes the withholding and remittance of payroll taxes. Workers that are eligible to earn sick time as identified by Client will be itemized and associated costs included in charges to Client each pay period. Appropriate entries will be made for each relevant pay period where this occurs and subsequently provided with W-2s and/or 1099 Statements at year end.
Assigned Workers are provided unemployment insurance and workers’ compensation benefits. Any workers’ compensation claims involving Assigned Worker(s) will be handled by the Employer of Record. Client affirms that Client will email Worker Comp claims information directly to firstname.lastname@example.org immediately upon the notification that such a claim has been filed. For any unemployment claims, email details and Worker’s information to email@example.com.
Service Provider will utilize Paychex Flex platform to maintain and make available to Client all reports and records regarding payments of Worker salaries and wages, including Workers access to paystubs and W-2’s. All W-2’s and/or 1099 Statements are prepared and delivered to Workers by the end of January each year.
Workers’ compensation insurance will be billed to and paid by Client and maintained for all Workers placed on the Service Provider’s platform.
Through the Service Provider’s partnership with Paychex Essentials, Client has an HR support team that will assist you in developing human resource policies, help design and implement a Worker handbook, advise on human-resource matters as-requested, and make available required human resource notices for Workers that are co-employed with Service Provider. Client will also have access to the online human resources training programs.
4. Workers. Client will identify and provide in writing the names and contact information of Client’s current Workers who will be subject to this agreement within 24 hours of signing this Agreement. The provided Workers that Client identifies and any future Workers will become Workers under this EOR Agreement only when they (A) complete Service Provider’s new-hire paperwork and are approved to work and (B) accept a written employment agreement or an acknowledgement of the first day of employment with Service Provider. Service Provider will provide all company services as a Co-Employer to Workers, unless otherwise expressly noted.
Note: For any specific confidentiality agreements that are required to be signed between Client and the Worker, the Client assumes all responsibility to obtain this agreement before the Worker can begin their assignment with Client.
5. Service Provider’s Fees for Service. In exchange for the services rendered, Client agrees to pay Service Provider or it’s parent company, Band of Hands Inc., a simplified flat fee price per check, per Worker, per pay period. There is a one time setup fee associated for this service for any Client enrolling based on the Pricing Model listed on the Service Provider’s website at www.bohps.com. Payroll statements will be based on the pertinent time sheets or other agreed system for documenting time worked by Assigned Workers. Client’s signature or other agreed method of approval of the submitted time worked for Assigned Workers certifies that the documented hours are correct and authorizes Service Provider and Paychex Flex to sweep the Client bank account for the wages, taxes and insurances associated with those hours before the pay is deposited to the Workers’ accounts. A separate authorization for this transaction is completed within the Paychex Flex system. The per check fee charge per employee will be applied at the end of every pay period and charged to the credit card on file in the BOH system. If a portion of any invoice is disputed, Client will pay any undisputed portion.
Selected services not included in the pre-defined regular service fee includes drug testing, pre-employment and Workers testing, supplemental insurance services, identity ID.me verification, Background Checks and Motor Vehicle Report. Any of these additional services may be available on the Band of Hands website as a Self-Service, pay as you request service, which may take the Client/User to outside third party service providers. BOHPS/Service Provider and its parent company does not have control or responsibility of the accuracy of information these third parties provide. Client uses those third party services solely at their own risk and responsibility.
In exchange for services provided, Client agrees to pay Service Provider’s stated “per check service fee” per Worker each pay period (“Gross Payroll”), plus the (i) various laws, taxes, and governmental fees for that jurisdiction, (ii) Service Provider’s wellness plan percentage, workers compensation premiums, and (iii) administrative charges as applicable. Client will receive an invoice for selected services that Client requests from Service Provider or its affiliates that are not included in the standard service fee rate. Selected services not included in the standard service fee include recruiting, software products, bonus checks, PayActiv advances initiated by Workers, background checks, drug testing, pre-employment and Worker testing, supplemental insurance services, supplemental consulting services, and retirement plan participation (“Additional services”). Service Provider will advise Client in advance if a requested service is an additional service charge.
6. Worker Time tracking and Payment Terms. Most Assigned Workers are typically classified as Non-Exempt as defined by the Fair Labor Standards Act (FLSA) and are potentially eligible for premium pay for overtime as stipulated by those regulations. Service Provider will charge Client for any overtime hours worked specifically for that Client, when viewed by itself, would legally require premium pay. Client needs to authorize or direct the Assigned Worker to work such premium work time. Client’s rate for overtime hours will be the same multiplier as the regular rate Service Provider is required to apply to the Assigned Worker’s pay rate. (For example, when federal law requires 150% of pay for work exceeding 40 hours in a week, Client will be charged at 150% of the regular bill rate.)
In addition to the hourly rates specified in this Agreement, Client will pay Service Provider the amount of any new or increased labor costs associated with Client’s Assigned Workers that Service Provider is legally required to pay—such as wages, benefits, payroll taxes, social program contributions, or charges linked to benefit levels—until the Parties agree on adjusted invoicing rates.
7. Miscellaneous Provisions.
a. This Agreement is the entire agreement and supersedes all prior agreements or understandings. Handwritten / typed changes, except for completing blank spaces on this Agreement, will be void and have no effect.
b. Each Party represents and warrants that it has the authority to enter into this Agreement. This Agreement may be executed in counterparts, all of which will constitute the same document. Signatures by facsimile or scanned electronic transmissions will be deemed original.
c. The terms and conditions are available online at www.bohps.com (and/or its parent company site www.bandofhands.com) and are incorporated into this Agreement for all purposes. In a conflict between this Client Services Business Agreement and the terms of conditions, the terms and conditions control. Client agrees that revised terms and conditions posted as described above or submitted to Client during the term will be binding. The terms and conditions contain provisions concerning indemnity, hold harmless clause, damage limitations, and other material terms concerning the obligations of both Parties.
d. Both Parties may receive information that is proprietary to or confidential to the other Party or its affiliated companies and their clients. Both Parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than performing under this Agreement or as required by law. No knowledge, possession, or use of Client’s confidential information will be imputed to Service Provider as a result of Assigned Workers’ access to such information.
8. Client’s Duties and Responsibilities include the following:
a. Properly supervise Assigned Workers performing work on behalf of the Client and be responsible by using respectful treatment and care of Workers as inferred in the Employee Handbook.
b. Properly supervise, control, and safeguard its premises, processes, or systems, and not permit Assigned Workers to operate any vehicle or mobile equipment unless previously authorized, or entrust them with unattended premises, cash, checks, keys, credit cards, merchandise, confidential or trade secret information, negotiable instruments, or other valuables without Service Provider’s express prior written approval or as strictly required by the job description provided to Service Provider.
c. Provide Assigned Workers with a safe work site and provide appropriate information, training, and safety equipment with respect to any hazardous substances or conditions to which Workers may be exposed at the work site.
1. Exclude Assigned Workers from Client’s benefit plans, and will not make any offer or promise related to Assigned Workers’ compensation or benefits without prior The Parties agree to cooperate fully and to provide assistance to the other Party in the discussion with Service Provider.
2. Investigation and resolution of any complaints, claims, actions, or proceedings that may be brought by, or that may involve any Assigned Workers.
9. Indemnification. To the extent permitted by law, Service Provider will defend, indemnify, and hold Client and its parent, subsidiaries, directors, officers, agents, representatives, and Workers harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by Service Provider’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth previously; or the negligence, gross negligence, or willful misconduct of Service Provider or Service Provider’s officers, employees, or authorized agents in the discharge of those duties and responsibilities.
To the extent permitted by law, Client will defend, indemnify, and hold Service Provider and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by Client’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth in previous paragraphs; or the negligence, gross negligence, or willful misconduct of Client or Client’s officers, employees, workers, or authorized agents in the discharge of those duties and responsibilities.
Neither Party shall be liable for or be required to indemnify the other party for any incidental, consequential, exemplary, special, punitive, or lost profit damages that arise in connection with this Agreement, regardless of the form of action (whether in contract, tort, negligence, strict liability, or otherwise) and regardless of how characterized, even if such Party has been advised of the possibility of such damages.
As a condition precedent to indemnification, the Party seeking indemnification will inform the other Party within 7 business days after it receives notice of any claim, loss, liability, or demand for which it seeks indemnification from the other pa Party; and the Party seeking indemnification will cooperate in the investigation and defense of any such matter.
10. The provisions in paragraphs 8 through 9 of this Agreement constitute the complete agreement between the Parties with respect to indemnification, and each Party waives its right to assert any common-law indemnification or contribution claim against the other Party.
11. This Agreement will remain in full force and effect until such time as it may be terminated by either Party to this Agreement. This Agreement may be cancelled at any time, with or without cause, by giving the other Party thirty (30) days advance written notice of the intent of such action. An exception to this course of action would be if Client becomes bankrupt or insolvent, discontinues or ceases operations, or fails to make any payments as required by the Agreement, either Party may terminate the agreement upon 72 hours written notice.
12. Amendment. No provision of this Agreement may be amended, modified, supplemented, terminated, or waived unless executed in a writing by the Parties, and then only for the specific purpose stated in such amending document.
13. Severability. If all or any portion of a provision of this Agreement as applied to either Party or to any circumstance shall be ruled by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by applicable law) that provision or the remaining portions of that provision as applied to any Parties or circumstances or any other provision of this Agreement or the validity or enforceability of this Agreement as a whole, all of which shall be enforced to the greatest extent permitted by applicable law.
14. Provisions of this Agreement, which by their terms extend beyond the termination or nonrenewal of this Agreement, will remain effective after termination or nonrenewal.
15. This Agreement and the exhibits attached to it contain the entire understanding between the parties and supersede all prior agreements and understandings relating to the subject matter of the Agreement.
16. The provisions of this Agreement will insure to the benefit of and be binding on the parties and their respective representatives, successors, and assigns.
17. Waiver. No provision of this Agreement may be waived, except by an instrument duly executed by the waiving Party. No delay or failure by any Party in exercising any of its rights, remedies, powers or privileges under this Agreement and no custom, practice or course of dealing between or among the Parties hereto or any other person shall be deemed a waiver by such Party of any such rights, remedies, powers or privileges, even if such delay or failure is continuous or repeated. No single or partial exercise of any right, remedy, power or privilege shall preclude any other or further exercise thereof by any such Party or the exercise of any other right, remedy, power or privilege by such Party, including, without limitation, the right of such Party subsequently to demand strict compliance with the terms and conditions of this Agreement. The failure of a Party to enforce the provisions of this Agreement will not be a waiver of any provision or the right of such party thereafter to enforce each and every provision of this Agreement.
18. Transfer. Client will not transfer or assign this Agreement without Service Provider’s written consent.
19. Notices. Any notice or other communication will be deemed to be properly given only when sent via the United States Postal Service or a nationally recognized courier, addressed at the designated addresses shown below and sent by registered mail, special delivery, or by overnight courier service.
20. Neither party will be responsible for failure or delay in performance of this Agreement if the
failure or delay is due to labor disputes, strikes, fire, riot, war, terrorism, acts of God, or any other causes beyond the control of the nonperforming party.
21. GOVERNING LAW. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of California without regard to the doctrine of conflicts of laws. The Parties agree and consent to exclusive jurisdiction and venue in the State and Federal courts located in the City and County of San Diego, California for any proceedings arising out of this Agreement.
22. Counterparts. This Agreement may be executed in any number of counterparts, all of which together will constitute one instrument. A signature of a Party delivered by telecopy or other electronic communication shall constitute an original signature of such Party for all purposes.
AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE EXECUTED THIS AGREEMENT BELOW TO EXPRESS THE PARTIES’ AGREEMENT TO ITS TERMS.
On behalf of: