This Niural EOR Terms of Service (“Niural EOR Terms of Service” or “EOR TOS”) is a part of the operative Niural Customer Terms of Service (“Niural TOS”) (and are hereby incorporated into the Niural TOS by reference), available at https://niural.com/legal, and set forth the terms and conditions under which Niural (“Niural EOR,” “EOR,” “we,” “us,” or “our”) will provide to Customer certain certain employer of record (“EOR”) services, including hiring employee(s) on behalf of the Customer and providing payroll services, as further described herein (the “EOR Services”). Niural EOR and Customer are sometimes referred to collectively as the “Parties” and individually as a “Party.” Capitalized terms used but not otherwise defined in this Niural EOR TOS will have the meanings set forth in the Niural TOS. In the event of a conflict between this EOR TOS and the Niural TOS, this Niural EOR Terms of Service shall control. In all other respects, the Niural TOS remains in effect as written.
PLEASE REVIEW THE NIURAL EOR TERMS OF SERVICE CAREFULLY. BY ACCEPTING THIS NIURAL EOR TERMS OF SERVICE OR USING THE EOR SERVICES DESCRIBED HEREIN, YOU AGREE TO BE BOUND BY THE NIURAL TOS, INCLUDING THESE NIURAL EOR TERMS OF SERVICE, AND TO THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN THE NIURAL PRIVACY POLICY, WHICH IS PART OF THIS AGREEMENT.
This EOR TOS shall be effective as of the Effective Date set forth on the MSA (“Effective Date”), and the EOR Services will commence on the date set forth in the MSA or as otherwise agreed by the Parties.
The EOR TOS will pertain to and cover only those individuals identified by Customer and approved by Niural EOR with respect to whom Niural EOR provides the EOR Services under this Agreement, and for whom Niural has timely received all onboarding paperwork and timely submission of payruns and pay data as required by and in accordance with policies of the Niural EOR (hereinafter “Consultant(s)”).
Niural’s EOR’s obligations are as follows with respect to the Consultant(s):
Niural EOR will comply with applicable laws material to the performance of the EOR Services described in these EOR Terms of Service.
Niural EOR will deliver an executable employment contract (“Employment Agreement”) for the Consultant(s), which shall include obligations of confidentiality, assignment of intellectual property, and other such terms and conditions as may be required in order to satisfy applicable laws, and onboard the Consultant(s) with regards to Customer-specific payroll and statutory benefits, as required, and coordinate end of contract terminations, when necessary. If Customer requests material changes to a standard in-country Employment Agreement, and Niural EOR in its sole discretion agrees to permit the change, Customer will be responsible for any expenses arising from the implementation of those material changes including, but not limited to, local counsel review and translation of the material changes.
Niural EOR will act as the employer of record for the Consultants and will be responsible for paying the Consultant(s), as dictated by the Customer to Niural EOR. Niural EOR will process payroll payments in accordance with the Niural EOR Policies (described herein), subject to applicable law, and conditioned upon Customer timely and accurately supplying all data and funds necessary for Niural EOR to perform its payroll processing services. In the event a customer fails to pay Niural EOR for its services or to timely supply all data and funds necessary for Niural EOR to perform its payroll processing services, Niural EOR shall have the right to pay Consultant(s) in the amounts that it shall determine in its sole discretion. Unless expressly authorized and agreed to in writing by Niural EOR, Customer shall not grant or pay any non-standard compensation to any Consultant that requires or will require Niural EOR, as the employer, to report or withhold applicable taxes as a result of such grant or payment. For the avoidance of doubt, “non-standard compensation practices'' include, without limitation, Customer-issued stock options, equity incentive plans, and non-contracted for payments, including bonuses, prizes, and compensation for non-solicitation or non-compete periods. If Customer requests and Niural EOR agrees to assist with equity withholding and/or reporting as part of its payroll processing services, Customer shall be responsible for complying with any and
all laws and regulations applicable to such equity withholding or reporting. Niural EOR will
notify Customer of material changes in applicable labor or other law or changes to any applicable union or collective bargaining agreement(s) that affect the Consultant(s)’ Employment Agreements. Niural EOR will also distribute payslips to Consultant(s) in accordance with local norms and facilitate review and payment of Consultant(s)’
Niural EOR will withhold, report, and remit payroll taxes and make social security contributions as required by applicable laws for the Consultant(s) in the country in which the Consultant(s) are employed by Niural EOR. Customer will promptly (and no later than two (2) weeks after receiving a request from Niural EOR) provide all required and requested forms, signatures, powers of attorney, reports, documents and historical data. Niural EOR will also (i) produce year-end tax reports for Consultant(s), where applicable; (ii) generate and distribute reports to Consultant(s) as legally required; and (iii) assist with other annual compliance matters as required for Consultant(s) in connection with their services under this Agreement and in the country in which the Consultant(s) were hired by Niural EOR. In some jurisdictions, Niural EOR may be required to estimate certain tax withholdings at the time of a payroll run; where applicable, Niural will refund to Customer any collected amounts that Niural EOR is not ultimately required to pay to the relevant tax authorities.
3.5 Wage Withholding Orders
If applicable and legally feasible under applicable laws, Niural EOR will administer Consultant(s)’ garnishment, liens, attachment of earning orders, and withholding orders.
3.6 Employee Benefits
As agreed to between Niural EOR and Customer, Niural EOR will enroll Consultant(s) in benefits plans and/or provide benefits stipends that meet the minimum statutory requirements in the selected jurisdiction, or, at the Customer’s sole option, are in addition to the minimum requirements.
3.7 Leave/Time Off Reporting and Administration
Customer agrees Consultant(s) will use Niural EOR’s internal leave/time off reporting systems in accordance with instructions provided by Niural EOR. Niural EOR will then administer leave/time off for the Consultant(s) in accordance with applicable laws and the terms of the Employment Agreement executed with the Consultant(s). Customer may schedule leave/time off in agreement with the Consultant(s) and shall report any approved leave to Niural EOR. If Customer and/or the Consultant(s) fail to use Niural EOR’s internal leave/time off reporting systems in accordance with applicable laws, the terms of the Employment Agreement, or instructions provided by Niural EOR, then Customer will be responsible for the payment of any disparities in leave balance in favor of the Consultant(s) and any liability associated with the incorrect reporting or payment of the leave balance, including, but not limited to, penalties, fines or interest.
3.8 HR and Compliance Tools
Niural EOR will provide Customer with a suite of HR and Compliance Tools. All HR and Compliance Tools provided by Niural EOR are provided as Human Resource consulting services, Niural EOR is not providing legal or tax advice. Customer is responsible for verifying the sufficiency of all HR and Compliance Tools against Customer requirements, and consulting with legal counsel as needed.
3.9 Visa Applications
If applicable and legally feasible under applicable laws, and subject to additional fees, Niural EOR may agree, in its sole discretion, to navigate and provide guidance throughout the visa application process in conjunction with immigration counsel, including assessment of eligibility, gathering the necessary documents, submission to the local authorities, payment of government administrative fees, sponsoring the Consultant(s) work permit (if required and contingent upon the Consultant(s)’ eligibility for the same and Niural EOR’s ability to sponsor), and necessary follow up. Applicable translation and legal fees are not included in the standard Visa Application Fees and will be invoiced separately, as needed.
3.10 Use of Affiliates and Other Sources of Revenue
Customer understands, acknowledges and agrees that (i) some of the products and/or services provided pursuant to this EOR TOS may be provided by third parties that are affiliated with or otherwise related in some way to Niural EOR (“Affiliates”), and therefore some of the fees or charges paid by Customer may include amounts payable to Affiliates; and (ii) to the extent consistent with applicable law, Niural EOR and/or Affiliates may receive commissions, referral fees or other sources of revenue with respect to the products and/or services provided pursuant to this EOR TOS.
Customer’s obligations are as follows:
4.1 Legal Compliance
Customer expressly agrees to comply with all applicable laws in satisfying its obligations under this Agreement and any applicable MSA.
4.2 In General Customer will comply with Niural EOR policies and procedures, including any such policies set forth in software, documentation, or as may be developed in the future (“Niural EOR Policies”), regarding the requirements to access Niural EOR Services and onboard Consultant(s). Such Niural EOR Policies may include but are not limited to policies regarding: (a) executing all necessary forms and agreements, including ACH or other bank or payment authorizations, wire authorizations, and reverse wire authorizations for Niural EOR or its affiliates to represent Customer as its agent before any relevant bank or credit union, taxing authorities or as otherwise reasonably required by Niural EOR to provide the Niural EOR Services, and (b) ensuring the submission of onboarding documents to Niural EOR before a Consultant commences work.
4.3 Background Checks and Other Responsibilities
Customer is responsible in all cases for identifying and recruiting Consultant candidates and, unless otherwise agreed by the Parties, for vetting, approving, and verifying the criminal, educational and/or work background and professional qualifications of its Consultant candidates, including but not limited to confirming that the candidate maintains the licenses required for the work to be performed (including professional licenses), as appropriate under local laws. Customer will not recruit any licensed Consultant(s) working in fields that could require Niural EOR to obtain a business license, including without limitation practicing lawyers or licensed tax agents. Customer assumes full and complete responsibility for the consequences of performing or failing to perform, initially and on an ongoing basis such checks. Niural EOR does not assume any responsibility for and makes no assurances, warranties, or
guarantees as to the ability or competence of any Consultant. Customer shall share
with Niural EOR the result of the background checks conducted on the Covered
Worker(s) upon request, in accordance with applicable law. Niural EOR may, as
determined by Niural EOR in its sole discretion and/or at the Customer’s request, run
background checks, in accordance with local laws.
4.4 Business Operations
Customer acknowledges that irrespective of Customer’s recruitment and introduction of Consultant(s), Niural EOR shall serve as Consultant(s)’ employer and all employment-related matters will be managed by Niural EOR. Notwithstanding the foregoing, Customer shall be responsible for the day-to-day control and supervision of the Consultant(s). Customer will not exercise its day-to-day control over the Consultant(s) in a manner that exposes Niural EOR to a breach of law. Customer acknowledges that Consultants(s) are not authorized to act on Niural EOR’s behalf.
4.5 Consultant Terminations & Resignations
If Customer determines to discontinue using the services of a given Consultant, Customer shall give Niural EOR prior notice of its intention to discontinue the services of such Consultant, such prior notice period to be not less than the minimum notice period required by law or the applicable Employment Agreement, whichever is longer, plus two (2) weeks. In the case where a given Consultant gives notice of resignation to Customer instead of Niural EOR, Customer shall inform Niural EOR promptly. Customer shall not discontinue the employment of or terminate a Consultant without prior notification and consultation with Niural EOR
and agreement with Niural EOR. In each case, Niural EOR will use its best efforts to
effectuate the termination of employment as soon as reasonably practicable, subject to
applicable grounds for termination and termination procedures under local law. Customer
should discuss with and consult Niural EOR on the appropriate or relevant course of
action when any performance, disciplinary, or other issues arise with Consultant(s),
including any perceived unreasonable behavior, unsatisfactory performance of duties, or
any other issue. For clarity, Customer shall be responsible for any costs and expenses
including legal fees related to Consultant(s) or termination of Consultants,
voluntary or otherwise, and any compensation payable in connection with the termination of
Consultant(s), whether negotiated or mandated by law or court order.
4.6 Redundancy or Transfer Notices
Customer will provide Niural EOR with no less than thirty (30) days’ notice of any layoff, transfer, or office closing that may immediately, or in the future, require the provision of notice under the Worker Adjustment and Retraining Notification (WARN) Act, Transfer of Undertakings (Protection of Employment) Regulations (TUPE) or similar laws governing redundancy, downsizing, transfers, and other changes to employment (“Change of Employment Laws”). Customer will discuss with and consult with Niural EOR on the appropriate or relevant course of action and, after doing so, shall provide all notices required by applicable law, including the Change of Employment Laws.
4.7 Wage Changes
Customer shall provide Niural EOR sufficient notice of a wage change for any Consultant to enable Niural to properly comply with any applicable wage payment requirements. Niural EOR shall not make retroactive payment adjustments. In some jurisdictions, adjustments to salary may require notification to government and union officials and/or significant documentation. Customer shall not make any modification to the Consultant(s) terms and conditions of employment without prior approval from Niural EOR.
4.8 Change in Circumstances
Customer shall notify Niural EOR of the principal location of the workplace of each Consultant and each location where such Consultant performs services for Customer, and of any changes in such locations. Customer shall not make any modifications without prior approval from Niural EOR.
4.9 Cooperation with Niural EOR
Customer will respond in a timely and accurate fashion to requests from Niural EOR for records and data necessary for Niural EOR to perform its services. Upon receipt Customer will immediately (and no later than one (1) business day after receipt) send Niural EOR copies of demands, notices, claims, summons and other legal papers related to the Consultant(s) to notices@niural.com.
4.10 Collective Bargaining
Customer understands and agrees that the applicable laws and union or collective bargaining agreement(s) governing Consultant(s)’ services for Customer are subject to change throughout the duration of this Agreement and that such changes are beyond the control of either Party. Customer agrees that such changes may require adjustments to the terms and cost of Consultant(s)’ services under this Agreement and Customer agrees that it is required to pay any such required adjustments as a condition of the Consultant(s)’ continued engagement.
4.11 Payroll Data
Customer will timely and accurately provide all data necessary for Niural EOR to process payroll for the Consultant(s), including but not limited to hours worked, timesheets, performance and assessment reports, and all the relevant elements for determining the applicable remuneration. Customer shall be responsible for the verification of payroll information, including but not limited to verifying that child labor laws have been complied with, and for providing applicable meal periods, rest breaks, and other breaks, as required under applicable law, and for ensuring that wages, minimum wage, overtime, prevailing wage rate, piece rate, commissions, and bonuses have been correctly calculated. The Customer shall ensure that all Consultant time entries are correct and complete and that the details of the Consultant(s) included therein are stated correctly and truthfully, such as: the name of the Consultant(s), the number of hours worked, overtime hours, any surcharges and any expenses actually incurred. Any tax and/or financial consequences resulting from the Customer’s failure to review (or negligence in reviewing) any expenses or travel allowances will be sent to the Customer for reimbursement.
4.12 Other Taxes and Fees
Other than required payroll withholding taxes and social security contributions covered by this EOR TOS, Customer is responsible for paying and reporting all applicable taxes and governmental fees. Additionally, any tax imposed by any taxing authority based upon Customer’s relationship with Niural EOR, such as a sales or use tax, or gross receipts tax, shall be the sole responsibility of Customer, unless otherwise specified in a Customer invoice. Niural is not responsible for Consultant(s) personal tax compliance.
4.13 Work Site Safety
Customer is solely responsible for the supervision and safety of Consultant(s) while on Customer’s premises, including compliance with applicable laws (“Workplace Safety Laws”). Customer is solely responsible for identifying and eliminating all known workplace threats to Consultant(s)’ health or safety. Customer acknowledges and agrees that Customer has not retained Niural EOR to manage or control Customer’s business or operations, and Niural EOR has no duty or authority to inspect, install, modify, repair, or maintain any equipment, tools, vehicles, or machinery that Consultant(s) may use. However, Niural EOR reserves the right to inspect Customer’s workplace for the sole purpose of verifying compliance with the terms of this EOR TOS. Any inspections that Niural EOR or its workers’ compensation insurance carrier may conduct are not for the purpose of identifying the unique threats to the health and safety of Consultant(s) that may exist in Customer’s workplace(s). Thus, such inspections would not fulfill a requirement for a full safety audit or inspection under applicable laws or regulations. Customer shall, at its sole cost and expense, take all necessary steps to comply with Workplace Safety Laws.
4.14 Accident and Injury Reporting Procedure
Customer shall immediately report accidents and injuries involving Consultant(s), including “first-aid” events by delivering a complete written report of an accident or injury to Niural EOR within one (1) business day after the occurrence of such accident or injury.
4.15 Investigations Procedure
Customer shall immediately report any claims or suspected claims filed by Consultant(s) or former Consultant(s) to Niural EOR within one (1) business day of being informed of a claim or suspected claim. In the event Niural EOR needs to conduct an investigation into the claim(s), the Customer shall cooperate fully with Niural EOR during the investigation process. Customer shall provide all relevant information to enable Niural EOR to conduct a full and proper investigation. When the investigation is completed, the Customer shall ensure that they action Niural EOR’s recommendations in a timely manner.
4.16 No Retaliation
Customer will not encourage, allow or tolerate attempts from any individual, group or organization to retaliate, punish, or in any way harm any Consultant(s) or former Consultants who report a concern in good faith to the Customer or Niural EOR or otherwise participates in an investigation (e.g., a witness). Such actions will be considered a material violation of the terms of this EOR TOS, and may also be subject to civil, employment or criminal proceedings.
4.17 Record Keeping
Customer will ensure that Consultant(s) maintain accurate records of hours worked to the extent required by law and will make such records available to Niural EOR upon request. Customer is solely responsible for creating and maintaining accurate records of hours worked and attendance, regardless of whether Customer utilizes time and attendance tracking systems provided by Niural. Customer is solely responsible for ensuring the proper use of any time and attendance system, regardless of whether the system is provided by Niural(if any) or another source. Customer will ensure that all hours worked by Consultant(s) are accurately captured and reported by the time and attendance system. Customer will not use any method, including rounding or off-the-clock work, to pay Consultant(s) less than the amount due to them pursuant to applicable law. Customer will maintain other records as directed by Niural EOR and in compliance with Niural EOR’s policies and procedures.
Customer agrees to pay fees and security deposits as set forth in any applicable MSA and per the terms of this Agreement.
During the Term of this EOR TOS, Customer will provide at its own expense and maintain in effect, with financially sound and reputable insurers, the following types of insurance on such terms and in such amount as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated: (i)general liability or third party insurance, covering all operations by or on behalf of Customer arising out of or in connection with the EOR TOS; (ii) professionality liability or errors and omissions liability insurance, if appropriate and/or required by law or regulation in the nation, state, territory, or province with jurisdiction over Customer. On request and if available from underwriters for the third-party liability policy, Niural EOR will be (i) included as an insured or additional insured, or (ii) the policy will include an indemnity to principal provision in favor of Niural EOR, or (iii) Niural EOR’s interest shall be noted to the policy. Upon request, Customer will furnish Niural EOR with evidence of insurance.
Niural EOR will obtain and maintain workers’ compensation insurance for Consultant(s) where required under applicable law.
Customer will pay Niural EOR fees according to the rates set forth in Customer’s applicable MSAs and the Country Pricing Schedule. Except as expressly provided otherwise in an MSA or this EOR TOS, Customer payment obligations are non-cancelable and non-refundable, and the number of Consultant(s) may be increased or decreased and invoiced based on actual Consultant(s).
7.1 Conversion Rates
Niural EOR will calculate the portions of your EOR fee based on local currencies using applicable exchange rates. These rates consist of currency conversion rates available to Niural through its services providers at or near the time of exchange and, where permissible by law, a currency conversion fee.
7.2 Payroll Payment Procedures
Niural EOR will pay the Consultant(s) in accordance with instructions provided by the Customer to Niural EOR. Customer will provide to Niural EOR, in the method authorized by Niural EOR, the payroll data upon which each Consultants’ compensation is calculated, in the format prescribed by Niural EOR. Customer is responsible for ensuring timely and accurate submission of payroll data, including the correction of any errors or needed modifications. Customer hereby authorizes Niural EOR to deduct or debit from Customer’s bank account any
monies due and owing, outstanding, or including outstanding fees, retroactive changes in
payroll tax or social security contribution amounts, unpaid insurance premiums, delinquent
payroll and other related taxes and social security contribution amounts, including assessed
fines, penalties and interest, chargebacks due to Customer’s bank account having
insufficient funds (NSF charges), and any other amounts that may accrue or may become
outstanding relating to EOR Services provided by Niural EOR. In addition, any fees or
other charges not paid on or before the due date will be subject to finance charges equal to
the greater of one and one-half percent (1.5%), or the maximum permitted under applicable
law, of the outstanding balance per month. This paragraph will survive termination of this
EOR TOS. Billing procedures will otherwise be as set forth in the Niural Terms of Service.
7.3 Bankruptcy
Customer will immediately notify Niural EOR of the initiation of any bankruptcy or receivership or insolvency proceedings of whatever form (whether voluntary or involuntary). Customer agrees that any wages or taxes or contributions paid or advanced by Niural prior to such bankruptcy that remain unpaid by Customer shall be treated as outstanding wage obligations for the purposes of determining priority in the associated legal proceedings with the intended effect that Niural shall have the same rights as Consultant(s) with respect to such wages and associated taxes and shall be entitled to relief as necessary to apply for such status.
7.4 Additional Fees
In the event of a change to local laws or regulations that may generate additional expenses, external costs, or charges incurred by Niural EOR in the performance of its obligations under this Agreement, such expenses, costs and charges shall be reimbursed by Customer (the “Additional Fees”), provided that any such increase must be limited to the amount of the additional cost imposed upon Niural EOR. Relevant supporting documentation will be made available to Customer upon written request.
Niural is not an intermediary, advisor, agent or third party to Customers with regard to any Contracts, and we take no responsibility for the quality or adequacy of any Deliverables or services performed, Customer disputes and or content posted to the Platform by Customers.
Niural assumes no liability for any acts or omissions of any Consultant, Consultant’s failure to provide the services to the Customer, or Customer’s failure to pay amounts owed to a Consultant ; and the Consultant acknowledges that Niural's obligation to pay the Consultant as the Consultant’s Payment Agent is subject to and conditional upon Niural's actual receipt of payment from the Customer.
Customer agrees to defend, indemnify and hold harmless Niural EOR Indemnified Parties against any claims made by the Consultant(s) relating to or arising from any engagement undertaken directly or indirectly by Consultant(s) with or for Customer prior to the beginning of Consultant(s)’s engagement with Niural EOR (including any prior engagement with a non-Niural EOR).
Should any such prior engagement exist, Customer shall reimburse Niural EOR in accordance with the payment terms of this Agreement any and all applicable fees thereunder. Such costs and fees may include, without limitation, additional remuneration, accrued statutory leave, seniority benefits, termination indemnity, rights and obligations gained as a result of deemed employment, and loss of earnings or status, whether perceived or actual, of Consultant(s)’s as well as any employer’s costs, contributions, taxes or similar relating to or arising from the foregoing. For the avoidance of doubt, engagement shall mean engagement in any form including but not limited to as an employee, or an independent sub-contractor whether directly or via one or more third Parties.
9.1 Customer’s Obligations to Consultant(s)
(i) All compensation of the Covered
Worker(s) accrued prior to the Effective Date and for which Customer or any third party is
responsible and obligated has been paid in full; (ii) except for the CIPRAA (as defined
below) or a Direct IP Agreement (as defined below), there are no separate contracts,
agreements or other arrangements existing with respect to the Consultant(s) that
could conflict with the EOR TOS, and to the extent Customer enters into a separate
agreement with the Consultant(s) the Customer is solely responsible for those
arrangements and any associated liability; and (iii) all pension, profit-sharing, or other
employee benefit plans existing at the Effective Date are current and in compliance with
applicable law, and execution of this EOR TOS will not be deemed a breach under the
terms of those plans.
9.2 Accuracy of Data
As of the Effective Date, and throughout the Term of this EOR TOS, all information provided by the Customer in contemplation of this EOR TOS or pursuant hereto, including but not limited to financial data, employee lists, job descriptions and classifications, compensation, benefits, and time reports is and will be true and correct. Niural EOR will rely on the data provided by Customer and will not be responsible for any claims, actions, or penalties that result from inaccurate or incomplete data.
CUSTOMER’S FAILURE TO TIMELY AND ACCURATELY SUBMIT ALL REQUIRED INFORMATION VIA NIURAL EOR SERVICES OR TO CORRECT ANY DISCREPANCIES OR ERRORS MAY RESULT IN DELAYED OR ERRONEOUS REMITTANCE OF WAGES, TAXES, AND GARNISHMENTS FOR WHICH CUSTOMER IS SOLELY RESPONSIBLE, MAY RESULT
IN ADDITIONAL SERVICE OR PROCESSING FEES, OR MAY RESULT IN THE TERMINATION OR SUSPENSION OF CONSULTANT FROM NIURAL EOR SERVICES.
Customer maintains, and will continue to maintain during the Term, to the extent required by law, systems and controls that ensure Consultant(s): (i) record and receive credit for all hours worked; (ii) receive breaks and rest periods; and (iii) receive credit for applicable premium and overtime hours. No material adverse change has occurred in the financial condition of the Customer or any guarantor of Customer’s obligations under this EOR TOS since the date upon which any financial data of Customer or guarantor were provided to Customer.
9.3 Collective Bargaining Agreement
Customer has not entered into a collective bargaining agreement (“CBA”) pertaining to any Consultant during the Term unless such CBA is attached as an exhibit to this EOR TOS.
9.4 No Litigation
Except as previously disclosed to Niural EOR in writing, there is no action, suit, proceeding or investigation pending, or, to the knowledge of Customer, threatened against Customer, related to the Consultant(s) or the Customer’s relationship with the Consultant(s) or which may result in a material adverse change in the financial condition of Customer or of any guarantor of Customer’s obligations under this EOR TOS. Customer will advise Niural EOR promptly upon the inception of any such action, suit, proceeding, investigation or threat thereof.
9.5 Compliance with Applicable Law
Customer has not violated any applicable statute or regulation in any respect, which would adversely affect the Consultant(s). Customer is and will remain in compliance with all applicable statutes, regulations, and executive orders respecting Consultant(s).
9.6 Work Site Safety
Customer is in compliance with all applicable Workplace Safety Laws, and Customer has maintained, and will continue to maintain throughout the Term of the Niural EOR Terms of Service, Customer’s workplace(s), machinery, equipment, and environmental factors in compliance with applicable Workplace Safety Laws.
9.7 Protection of Intellectual Property
Customer is wholly responsible for protecting any of its Intellectual Property (“IP”) to which Consultant(s) have access. Customer will hold Niural EOR harmless for any theft or misappropriation of Customer’s IP by Consultant(s). To the extent that Customer wishes to pursue or initiate a lawsuit against any Consultant(s) to the maximum extent allowed by local law to enforce Customer’s rights to IP or pursuant to a non-compete or restrictive covenant, Niural EOR will cooperate, with all costs being the exclusive responsibility of Customer. Niural EOR will charge Customer a service fee for assisting with any such litigation needs as set forth in this Section, which fee shall be agreed upon in advance. Although Niural EOR may advise Customer as to best practice regarding IP protection in various jurisdictions, Customer agrees that Niural EOR is not qualified to render and is not responsible for rendering legal advice to Customer with respect to the exact scope of protection afforded to Customer’s
intellectual property. Customer will automatically be presented with a Confidentiality and
Intellectual Property Rights Assignment Agreement, the form of which shall be provided by
Niural to Customer (“CIPRAA”). The CIPRAA is not required; Customer may choose not
to enter into the CIPRAA. Instead of entering into the CIPRAA, Customer and Covered
Worker(s) may, but are not required to, enter into a separate agreement regarding
intellectual property and confidentiality provided by Customer (“Direct IP Agreement”). If
Customer modifies the CIPRAA, such modified agreement shall be treated as a Direct IP
Agreement hereunder. For clarity, Customer is not required to enter into a CIPRAA or a
Direct IP Agreement with any Consultant. Customer is advised to have all IP
protection documentation reviewed by local counsel, at the sole direction and cost of
Customer.
9.8 Hiring Authority
Customer has only granted administrators or employees hiring authority who have authority to act on behalf of the Customer entity or organization with respect to hiring decisions and the authority to bind that entity or organization to this Agreement.
10.1 Term
The Term is as set forth in the MSA and Niural TOS.
10.2 Noticed Termination
Either Party may terminate this EOR TOS following thirty (30) days’ advance notice, subject to Section 10.4.
10.3 Immediate Termination
10.3.1 By Niural
Subject to Section 10.4, Niural EOR may immediately terminate your access to the Niural Services and this Agreement without liability to Customer for 1) any actual or suspected violation by Customer of any provision of this Agreement and failure to cure within seven (7) days following written notice thereof; 2) Customer’s failure to pay any invoice when due or any other monetary obligation, including Consultant related costs and payroll; 3) Customer’s failure to comply with any Niural EOR directive when such directive is for the purpose of compliance with applicable law, following reasonable notice; 4) Customer’s failure to comply with a directive by an insurance carrier providing coverage with respect to Consultant(s), following reasonable notice; 5) Customer making a direct payment of taxable wages in violation of this EOR TOS; 6) the threat of, or actual, filing by or against Customer for bankruptcy, reorganization or appointment of a receiver, supervisor, assignee, or liquidator over its assets or property; 7) a money judgment against Customer which remains unsatisfied for more than thirty (30) days and has not been appealed; 8) Customer becomes a credit risk, as determined by Niural EOR in its sole discretion; and/or 9) Niural EOR reasonably suspects that Customer is engaged in prohibited or high risk activities, as set forth in our Restricted Businesses policy.
10.3.2 By Customer
Subject to Section 10.4, Customer may immediately terminate this Agreement if Niural is in material breach of any material term contained in this Agreement and fails to cure such breach within seven (7) days following written notice thereof.
10.4 Effective Termination Date
Notwithstanding Sections 10.2 and 10.3, the obligations set forth in this Agreement and any applicable MSA(s) shall continue until Niural EOR is able to legally terminate, as applicable, all Consultant(s) subject to any effective MSA(s) under this Agreement or all Consultant(s) subject to such applicable MSA(s). Customer remains responsible for payment of all outstanding Niural EOR invoices as well as for any uninvoiced billing amounts through the effective date of termination of the Agreement; provided that Niural EOR shall invoice Customer for such uninvoiced billing amounts within the later of forty-five (45) days after the effective termination date of this Agreement or thirty (30) days after Niural EOR’s discovery of such outstanding uninvoiced billing amounts. Additionally, upon termination or dismissal of any Consultant engaged through Niural EOR and until the expiration of applicable statutes of limitation, Customer agrees to pay all costs associated with such termination or dismissal, including without limitation severance costs, reasonable legal costs, or other expenses, in the amount incurred as part of the termination or related disputes.
10.5 Equal Opportunity Employer
Niural EOR and Customer represent that they are equal opportunity employers and do not and will not discriminate on the basis of race, color, religion, sex, age, national origin, disability, marital status, and other basis forbidden by applicable local law.
10.6 Service Suspensions
Without limiting our other rights or remedies in the Niural Customer Terms of Services, we may immediately suspend your access to any portion of the EOR Services without prior notice if Niural finds:
10.7 Disputes and Contract Cancellations
10.7.1 Reversals and Disputes.
Clients are advised to initiate payments only upon the satisfaction of acceptance criteria or other requirements specified in the consultant engagement contract. Except to satisfy compliance obligations, Niural cannot reverse payments or withhold funds from Consultants, and cannot cause Payment Service Providers to reverse payments or withhold funds from Consultants once funds have been received by Niural or the relevant Payment Service Provider. If a Client is not satisfied with the service provided by a Consultant or makes a payment in error, the Client must initiate a refund, reversal or other payment dispute process directly with the Consultant or with the relevant Payment Service Provider. Niural will not adjudicate payment or Contract disputes between Users regardless of payment method or Contract status under any circumstances, and Users are solely responsible for dispute settlement. Refunds and reversals of payments made through a Payment Service Provider are subject to the terms and conditions of your Payment Service Provider agreement.
10.7.2 User-Initiated Contract Cancellation
If a Client owes outstanding payments to a Consultant after completion of work, or if a Client is dissatisfied with the service provided by a Consultant, the Client or Consultant may initiate cancellation of the Contract through the Niural dashboard. Cancellation of a Contract through the Niural dashboard has no bearing whatsoever on the merits of a Contract dispute, or the interpretation of the terms of, or legality or validity of a Contract. The Services record the initiator of, and the time and date of the cancellation. If you delete a Contract, the deleted Contract and all Content therewith will immediately become inaccessible to other Users, after which we will permanently delete the Contract from our servers. Users may not initiate or request payment for services related to, or alter the status of a Contract after it has been canceled.
10.7.3 Contract Cancellation by Niural
Niural may cancel a Contract in the event of suspicious Account activity or Account compromise; fraud, harassment, and threats; unfair, deceptive, or abusive acts or practices; illegal acts; at the direction of a regulatory authority; or for any other violation of these Terms of Service. Niural may also cancel a Contract if a User is no longer a Niural Account holder in good standing. Please contact us if you believe a Contract or another User is in violation of these Terms.
11. Country-Specific Provisions
This Agreement will be construed in accordance with and governed by the substantive laws of the respective jurisdiction. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
12. Data Privacy
Niural will process EOR Personal Data, as defined in the Data Processing Addendum available at https://www.niural.com/dpa (“DPA”), in accordance with the terms set forth in the DPA and the Privacy Notice available at https://www.niural.com/privacy-policy.
13. General
13.1 Applicable Law
In addition to the Governing Law provision set forth in the Niural TOS, the EOR licensing laws of the country where the Consultant(s) work or worked shall apply, where applicable. Subject to the agreement to arbitrate in the Niural TOS, Customers not based in the United States agree to appear voluntarily in the jurisdiction specified in the Niural TOS in the event they are subpoenaed in connection with a legal action there.
13.2 Enforcement Costs
In the event of any proceeding to enforce the provisions of the EOR TOS, the prevailing party will be entitled to an award of its costs and reasonable attorneys’ fees incurred at all levels of proceedings.
13.3 Limitation of Liability
IN NO EVENT WILL NIURAL, NOR ITS DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (B) ANY CONDUCT OR CONTENT OF ANY CUSTOMER OF THIRD PARTY ON THE SERVICES; (C) ANY CONTENT OBTAINED FROM THE SERVICE; AND (D) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
OUR MAXIMUM LIABILITY TO YOU UNDER THESE TERMS IS LIMITED TO THE GREATER OF THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU TO US IN THE THREE MONTHS PRECEDING THE EVENT THAT IS THE BASIS OF YOUR CLAIM OR $500.00. THESE LIMITATIONS APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH YOUR CLAIM IS BASED.
Niural EOR will not be responsible for any damages, losses, or liabilities howsoever caused to
Customer either (i) as a result of any claims by any Consultant(s) that they are co-employed or jointly employed or directly employed by Customer; and/or (ii) pursuant to a
determination of permanent establishment or other taxable presence (within the meaning of
an applicable tax treaty) in any jurisdiction, including any taxes arising from the foregoing.
13.4 Transfer of Intellectual Property
To the fullest extent permissible under applicable law, Niural EOR hereby assigns to Customer any and all rights, titles, and interests in and to any Works (as defined below) created by any Consultant during the course of his or her engagement under this Agreement or that is based on or makes any use of Customer’s Confidential Information (as defined below), in particular all patent rights, trademark rights, rights of use under copyrights for ways of use known and yet unknown, including rights to the software in whatever form, design rights, related property rights according to copyright law (including all development stages) and other intellectual property rights, unrestricted in time, territory, and subject matter and will take all steps required in each jurisdiction, including completing all documentation, if any, to ensure same at Customer’s request and at Customer’s sole cost. To the extent any part of the Works is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or intellectual property rights of Consultant (“Consultant Inventions”), Niural EOR hereby grants to Customer a perpetual, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice, exercise, and exploit all such technology and all patent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other intellectual property or proprietary rights relating to such Consultant Inventions
(including any modifications, improvements, and derivatives of any of them). To the extent
allowed by law, any of the foregoing rights granted to Customer hereunder includes all
rights of paternity, integrity, disclosure and withdrawal and any other rights that may be
known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like.
Furthermore, Niural EOR agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation, Customer may and is hereby authorized to (and to allow others to) use Consultant(s)’s name in connection with promotion of its business, products or services to the extent permissible under applicable law. To the extent any of the foregoing is ineffective under applicable law, Niural EOR hereby provides any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible.
Niural EOR will confirm any such ratifications and consents from time to time as requested by Customer. Niural EOR acknowledges and agrees that the remuneration as set forth in the Country Pricing Schedule represents sufficient consideration for such assignment as set forth in this Section. In the event of a conflict between any term of this EOR TOS and any term of the CIPRAA, the CIPRAA shall control. In the event of a conflict between any term of this EOR TOS and any term of the Direct IP Agreement, the Direct IP Agreement shall control with respect to all terms related to intellectual property and confidentiality. Notwithstanding anything else, in the event Niural EOR is assigned or vested with any ownership right, title or interest in or to any Works, whether by operation of law or otherwise, and whether or not Customer has entered into a CIPRAA or Direct IP Agreement purporting to govern the ownership of such Works, Niural EOR hereby assigns such Works to Customer. For the purposes of this Agreement, “Works” shall mean all discoveries, designs, developments, improvements, creations, concepts, research, technology, learning, software, firmware, content, audio-visual materials, tools, processes, techniques, data, plans, devices, apparatuses, specifications, prototypes, circuits, layouts, algorithms, programs, code, documentations, inventions (whether or not protectable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protectable under copyright laws), trade secrets, know-how, ideas (whether or not protectable under trade secret laws), mask works, trademarks, service marks, trade names and trade dress, all versions, modifications, enhancements and derivative works thereof, whether or not they may be patented, copyrighted, trademarked or otherwise protected, and all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other intellectual property rights of any sort throughout the world) relating to any and all of the foregoing. “Confidential Information” shall mean all Works and all other business, technical and financial information (including, without limitation, the identity of and information relating to customers or employees) developed, learned or obtained by or for or on behalf of any Consultant(s) in connection with the Consultant Services or that are received by or for Customer in confidence.
13.5 Anti-Corruption
13.5.1 Each Party agrees, in its performance of its obligations under this Agreement, to
comply, and to cause its affiliates to comply, with applicable Anti-Corruption Laws, which may include but are not limited to the US Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act (the “UK Act”), the Mexico General Law on the National Anti-Corruption System (“GLAR”), the Canadian Corruption of Foreign Officials Act (“CFPOA”), as applicable, and all other applicable anti-corruption and anti-bribery laws (collectively, “Anti-Corruption Laws”). In general, the Anti-Corruption Laws prohibit directly or indirectly making, promising, authorizing, or offering any advantage or anything of value to public officials or private persons or corporations to secure an
improper advantage, to improperly obtain or retain business, or to direct business to any other person or entity.
13.5.2 Each Party states that it maintains in effect policies and procedures designed to ensure its compliance with applicable Anti-Corruption Laws. Neither Party shall knowingly take any action that would cause the other Party to be in violation of Anti-Corruption Laws. Additionally, each Party shall immediately notify the other Party if such Party has any information or suspicion that there may be a violation of any Anti-Corruption Law in connection with the performance of any activities under this Agreement.
13.6 Errors
13.6.1 By Customer
If Customer becomes aware of a failure, possible failure, investigation, audit, or penalty relating to any EOR Services, Customer agrees to promptly notify Niural EOR in writing and agrees to cooperate in resolving any such issue. To the extent that an error, including a payroll or tax filing error (each, an “Error”) is partially or solely caused by Customer for any reason, Niural EOR will have no liability to Customer. Niural EOR may attempt to correct Errors. Customer may also
request that Niural EOR do so; however, Niural EOR may not be obligated to make requested corrections, and as between Customer and Niural EOR, Niural EOR will not be liable for any claims or other consequences that may directly or indirectly result from Niural EOR’s attempt to correct, or failure to correct such Error. Customer authorizes Niural EOR to charge supplemental fees to correct such Errors and/or to make deductions from Customer’s accounts as set forth in this EOR TOS.
13.6.2 By Niural EOR
To the extent that an Error is solely caused by Niural EOR, the penalties and interest associated with a correction of such Error shall be payable by Niural EOR, provided that Customer provides reasonable assistance to Niural EOR in correcting the Error and minimizing any fees or penalties due.
13.7 False or Omitted Information
Any false statement or omission with regard to any information supplied by Customer to Niural EOR in anticipation of Customer’s contracting with Niural EOR or at any other time will be deemed a material breach of the Niural EOR Terms of Service, and Niural EOR, at its option, may terminate the Niural EOR Terms of Service and seek appropriate relief.
13.8 Headings
Captions and organization are for convenience and will not be used in construing meaning.
13.9 Reference to “Day” or “Days”
Unless there is a specific reference to the contrary, any reference to “day” or “days” in the Niural EOR Terms of Service shall mean calendar Days.
13.10 Reference to “Notify”
Unless there is a specific reference to the contrary, any reference to “notify” Niural EOR in the Niural EOR Terms of Service shall include notifications and submissions made available via the Niural EOR software.
13.11 Independent Contractor Relationship
Niural EOR is an independent contractor of Customer and will not be its principal, director, agent, master, servant, or employee. Niural EOR and Customer are separate and independent legal entities. Nothing contained in this EOR TOS shall be deemed to constitute a relationship of agent, representative, partner, joint venture, or employee for the other Party for any purpose. It is the intention of the Parties that Niural EOR performs EOR Services as an independent contractor for Customer.
13.12 Scope of Services
Customer acknowledges and agrees that Niural EOR is not engaged in the practice of law or the provision of legal, insurance, financial, tax, or investment advice or services, and that Customer alone is completely and independently responsible for its own legal rights and obligations, regardless of any human resource advice or form which may be supplied to Customer. Customer at all times retains the right to seek appropriate advice from professionals of its own choosing, including but not limited to attorneys and accountants. Niural will provide only the services expressly described in this EOR TOS. No other services will be provided or implied. Niural EOR is not obligated to provide, nor is it responsible for, strategic, operational or other business-related decisions with regard to Customer’s business. Nor shall Niural EOR have any obligation to provide equipment for Consultant(s).
13.13 Deposit
The amount of the Deposit for each Consultant will be in the amount stated in hiring flow and explained in the Country Pricing Schedule. Should Customer choose to offer a Consultant increased notice periods or severance payment terms over and above the statutory minimum required in-country or should the required notice period/severance pay increase over the length of the Consultant’s employment contract, the Deposit held by Niural EOR for that Consultant will be increased by a corresponding amount. The Deposit is used to secure Customer’s liabilities to Niural EOR for services performed on behalf of the Customer and will be used for no other purpose than securing or, if necessary, paying Customer’s liabilities to Niural EOR. Niural EOR has the right to setoff liabilities owed by Customer by application of the Deposit funds. Any unused portion of the Deposit will be refunded to Customer sixty (60) days after all matters related to the termination or resignation of the Consultant have been fully and finally resolved. Niural EOR reserves the right to review Customer’s account periodically, but no less than annually, and to increase the Deposit based on changes to the terms of the Consultant(s)’ pay, length of service, the length of the notice period and/or severance pay requirement, other issues reflecting an increase to the accrued liabilities due to the Consultant(s) at the end of service, and the risk profile of Customer, as determined by Niural EOR in its sole discretion. Customer must pay any required Deposit to Niural EOR before a newly hired Consultant commences work. If Customer fails to meet Deposit requirements, Niural EOR may terminate Consultant(s) from Niural EOR.
13.14 Severability
Should any term, warranty, covenant, condition, or provision of this EOR TOS or the incorporated Niural TOS be held to be invalid or unenforceable by a court or other body of competent jurisdiction or pursuant to arbitration, the balance of this EOR TO and the incorporated Niural TOS will remain in force and will stand as if the unenforceable part did not exist. The invalid or unenforceable provision will be replaced by a provision as similar as possible and which is valid and enforceable.
13.17 Successors and Assigns
This EOR TOS will be binding upon and inure to the benefit of the successors and assigns of the Parties hereto.
13.18 Terms Surviving Termination of this EOR TOS
Termination of this EOR TOS will not affect the continuation of any outstanding obligation or liability incurred by either Party during the Term of this EOR TOS. The obligation of either Party to notify, indemnify, defend and hold harmless the other under the terms of this EOR TOS will continue after the termination hereof with respect to events occurring prior to such termination. Section 13.4 (Transfer of Intellectual Property) shall survive termination of this Agreement.
13.19 Third-Party Beneficiaries
The Parties acknowledge and agree that no parties other than the Parties hereto are intended to benefit hereunder. No rights of any third party are created by this EOR TOS and no person other than Parties hereto may rely on any aspect of this EOR TOS notwithstanding any representation, written or oral, to the contrary.
13.20 Duty to Cooperate
Each Party will have the duty to cooperate with the other in the event of any claim filed by an employee or former employee, or any government agency investigation of a complaint filed by an employee or former employee covered by this EOR TOS. Such duty will survive the termination of this EOR TOS. Customer agrees to cooperate with Niural EOR as needed for any licensing and/or registration requirements. Customer further agrees to cooperate with Niural as needed for compliance with any additional state statute, regulation, or other requirements not aforementioned or referenced above or below. Such duties will survive the termination of this EOR TOS.
