NOTICE: AvailVA does not require a signed Terms and Conditions of Service. Your use of any services or resource provided by AvailVA denotes your complete agreement with and acceptance of these Terms and Conditions of Service.
TERMS AND CONDITIONS OF SERVICE
(Last Revised On: March 1, 2019)
This AvailVA Terms and Conditions of Service constitutes a binding agreement (the “Agreement”) between you (the “Client”) and AvailVA, a Texas limited liability company (the “Contractor”), effective as of the date of first purchase of services by Client. Client and Contractor are referred to herein individually as a “Party” and collectively as the “Parties.”
By affirmatively accepting the terms and conditions of this Agreement at the time of first purchase of services from Contractor, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Client accepts and agrees to the following:
1. This Agreement. Client acknowledges that it has read, understands, agrees with, and accepts all of the terms and conditions contained in this Agreement. This Agreement is subject to change by Contractor from time to time, in its sole discretion, with advance notice of any such changes given to Client. The most current version of this Agreement, which shall supersede all earlier versions, can be accessed through Contractor’s website. Client acknowledges that it should review the Agreement regularly, to determine if there have been changes. Client’s continued use of Contractor’s services constitutes acceptance of the most recent version of the Agreement.
(a) Provisions. Contractor shall perform the Virtual Assistant services purchased by Client with reasonable care and skill and otherwise in the manner customarily performed by service providers in the Virtual Service industry (individually and collectively, the “Services”). Contractor may freely delegate any of the Services to Contractor’s virtual assistant staff (“VAs” or “virtual assistants”) in Contractor’s sole discretion.
(b) Security Measures. Contractor shall use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Client’s data. These measures are designed to protect the integrity of Client’s data and guard against the unauthorized or unlawful access to, use, and processing of Client’s data.
3. Term. The term of this Agreement shall begin on the date of first purchase of Services by Client and shall continue until the expiration date of hours, unless terminated by either Party with written notice to the other Party (the “Term”).
4. Terms of Payment.
(a) Timing. Client shall pay Contractor in advance of delivery of work related to the Services, in accordance with the plan of Services. All pricing is exclusive of taxes, such as sales tax or Value Added Tax (VAT), if applicable. Upon renewal of any plan of Services, Client’s credit card may be charged in advance, plus any hours used in excess of the selected plan of Services. Regardless of currency, all invoices and payable charges for the Services originate from the United States and Contractor is a resident of the United States for tax purposes. If Client’s credit card is declined, the Services will be suspended until payment is made
(b) Travel. Contractor’s VAs are assigned to work on a virtual basis only. Requests for ‘in person’ work is not possible.
(c) Refunds. Client will not be charged for unused hours in the plan of Services. Client shall contact its account manager to discuss any such instances.
5. Client Responsibilities.
(a) Supervision of VAs. Client acknowledges and agrees that its virtual assistant acts under its sole direction. If Client requires its virtual assistant to make decisions on its behalf about the way in which any work, actions, tasks, strategies, or other business related functions are performed, Client does so on the basis that the virtual assistant is acting on its behalf and is under its supervision at all times.
(b) Passwords. Should Client decide to give its virtual assistant access to any of its business and/or personal accounts, Client does so entirely at its own risk, and Client acknowledges that it is solely and fully responsible for ensuring the security of its data. Client will be solely responsible for any loss, liability or violations that might occur as a result of such access.
(c) Copyright. Copyright is the legal protection extended to authors or owners of original published and unpublished artistic and intellectual works. Should Client request that its virtual assistant source content or images for use on its website or in marketing or other materials relating to its business, Client acknowledges that it does do so at its own risk, and Client is solely responsible for supervising its virtual assistant’s work, and ensuring that all appropriate permissions to use such content or images have been obtained. Should Client request its virtual assistant to carry out any of these activities without the necessary permissions, Client will be solely responsible for any violations of copyright law, and may be subject to legal sanctions, including fines.
(d) Nature of Services. Client agrees not use its virtual assistant or any of the Services to engage in any illegal or immoral activity.
(e) Consumer Rights and Cancellation. If Client is purchasing the Services wholly or mainly for personal use (and not in relation to Client’s business), this Agreement is not intended to vary the rights of Client under any applicable consumer protection law.
6. Intellectual Property Rights.
(a) As between Client and Contractor, all intellectual property rights and all other rights in the Services performed by Contractor or its VAs shall be owned by Contractor. Subject to Section 6(c), Contractor licenses all such rights to Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable Client to make use of the Services for its own internal business uses (including for the purposes of providing its goods and/or services to third parties). In no circumstances shall Client be entitled to resell the work product derived in the rendering of the Services to any third party without the prior written consent of Contractor.
(b) For the avoidance of doubt, any Confidential Information of Client and any Client material shall remain in the ownership of Client.
(c) Client acknowledges that, where Contractor does not own any or all of any pre-existing materials comprised in any work related to the Services, Client’s use of rights in pre-existing materials is conditional on Client obtaining a written license (or sub-license) from the relevant licensor or licensors on such terms as will entitle Client to use the work.
7. Confidentiality. Each Party hereby acknowledges that during the Term, each Party may, from time to time, be supplied or work with certain information supplied by the other Party, all of which is confidential and of value to such Party (the “Confidential Information”). Each Party hereby agrees to the following in connection with the Confidential Information:
(a) Neither Party will disseminate or disclose to any third party, or use for such Party’s own benefit or for the benefit of any third party, any Confidential Information relating to the products, business or affairs of the other Party, however acquired during or by reason of this Agreement, such Confidential Information being deemed to include, without limitation, information in any format pertaining to copyrights, trademarks, trade names, service marks, trade dress, domain names, uniform resource locators (URLs), websites, advertising and marketing plans, media planning/placement, strategic briefs, sales plans, ideas, concepts, new products, improvements, inventions, proposed launches, discontinuance of existing products, product and consumer testing data, sales and market research; technology research & development, corporate strategic plans, budgets, profit & loss data, raw material costs, identity of suppliers, customer lists, customer information, formulae, processes, methods, and associations with other organizations.
(b) Each Party will treat Confidential Information received from the other Party with the same degree of care and security as such Party would use with respect to such Party’s own Confidential Information, but not less than a reasonable degree of care.
(c) Neither Party will use the Confidential Information for any purpose other than as it relates to the Services. If either Party is in any doubt as to whether a proposed use of the Confidential Information is appropriate, such Party will immediately (and before using the Confidential Information) seek written clarification from the other Party.
(d) Neither Party will copy, reproduce or store the Confidential Information without the other Party’s prior written consent whether electronically, on any external drive (including a USB thumb drive) or in the “cloud.” Each Party will secure physical and electronic access to the Confidential Information.
(e) Neither Party will assert any right, title or property interest in or to the Confidential Information of the other Party.
(f) Upon the expiration or other termination of the Term, and at such other times as either Party may request, each Party will return to the other Party all information, strategic briefs, reports, memos, presentations, letters, copies, manuals, drawings, blueprints, discs, e-mails CD-ROMs and all other materials relating to the other Party’s business, including all Confidential Information, in such Party’s work space, personal possession or control. In addition, upon the expiration or other termination of the Term, and at such other times as either Party may request, each Party will deliver to the other Party an executed certificate confirming that such Party has promptly returned to the other Party or shredded or destroyed all information, strategic briefs, reports, memos, presentations, letters, copies, manuals, drawings, blueprints, discs, e-mails, CD-ROMs and all other materials relating to the other Party’s business, including all Confidential Information, in such Party’s work space, personal possession or control.
(g) Confidential Information will not include, and the other Party shall have no obligation whatsoever under this Agreement with respect to, information that is or becomes (through no breach of this Agreement by the other Party) generally available to the public, or was in the other Party’s possession or known by the other Party prior to receipt from such Party as demonstrated by the other Party through written documentation (if available) or otherwise.
(h) Either Party may make disclosures required by valid order of any court or other authorized governmental entity, provided such Party promptly notifies the other Party and provides reasonable cooperation, at the other Party’s expense, with the other Party’s efforts, if any, to limit disclosure and to obtain confidential treatment or a protective order.
(i) Each Party agrees that such Party’s obligations under this Section 7 shall continue beyond the expiration or other termination of the Term and shall be binding upon such Party’s legal representatives, heirs, successors, assigns, subsidiaries and affiliates and shall inure to the benefit of the other Party, the other Party’s subsidiaries and affiliates and their legal representatives, heirs, successors and assigns.
8. Non-Solicitation; Liquidated Damages. During the Term of this Agreement, and for a period of one (1) year following termination of this Agreement for any reason, Client shall not, whether directly or indirectly, solicit, recruit, induce, attempt to recruit or induce, or encourage any of the VAs or any of Contractor’s other staff to leave Contractor in order to provide services directly to any other person, including Client and Client’s successors, assigns and affiliates. Client agrees that if Client breaches this Section 8, Contractor will incur substantial economic damages and losses in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by Contractor of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such breach, Client agrees that liquidated damages may be assessed and recovered by Contractor as against Client in the event of such breach and without Contractor being required to present any evidence of the amount or character of actual damages sustained by reason thereof; and Client shall be liable to Contractor for payment of liquidated damages in the amount of US$25,000.00 with respect to each of Contractor’s VAs or other staff that Client, directly or indirectly, solicits, recruits, induces, attempts to recruit or induce, or encourages to leave Contractor in order to provide services directly to any other person, including Client and Client’s successors, assigns and affiliates. Such liquidated damages represent estimated actual damages to Contractor arising from having to replace the VAs or other staff so recruited, and are not intended as a penalty. Client shall pay the liquidated damages to Contractor within five (5) days of notice from Contractor of the resignation of a VA or other staff and whether or not Contractor has exercised its right to terminate the Term. This Section 8 shall survive the termination of the Term.
9. Independent Contractor. This Agreement shall not render either Party an employee, partner, agent of, or joint venture with the other Party for any purpose. Contractor is and will remain an independent contractor to Client. Client shall not be responsible for withholding taxes with respect to Contractor’s compensation hereunder. Contractor shall have no claim against Client hereunder or otherwise (whether for itself or any of its VAs) for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
10. Warranties and Representations. Each Party hereby warrants and represents that such Party is free to enter into this Agreement, and that this Agreement does not violate the terms of any agreement between such Party and any third party.
(a) Generally. Either Party may terminate this Agreement, including all ancillary documents related hereto, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
(b) Effects of Termination. If this Agreement terminates: (a) except as set forth in this Section 11, the rights and licenses granted by Contractor to Client will cease immediately; (b) Contractor may, at Client’s request, provide Client access to its account at then-current fees so that Client may export its data; and (c) after a commercially reasonable period of time, Contractor may delete any data relating to Client’s account. Including this Section 11, the following sections will survive termination of this Agreement: 4 (Terms of Payment), 6 (Intellectual Property Rights), 7 (Confidentiality), 8 (Non-Solicitation; Liquidated Damages), 12 (Indemnity), 13 (Disclaimers), 14 (Limitation of Liability), 14 (Choice of Law; Arbitration), and 15 (Miscellaneous).
12. Indemnity. Client hereby agrees to release, indemnify, defend, and hold harmless both Contractor, including Contractor’s directors, officers, employees, contractors, and any other agents and its virtual assistant, from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements, arising from or relating to any inaccuracy in or breach of any of the representations or warranties of Client contained in this Agreement or any document to be delivered hereunder, or any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Client pursuant to this Agreement or any document to be delivered hereunder, unless caused by the gross negligence or willful misconduct of Contractor or its virtual assistant. Client further waives any claim that Contractor or any of the VAs are acting in a professional, advisory, or consultative capacity.
13. Disclaimers. THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS DO NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NON-INFRINGEMENT, OR THE TEXAS DECEPTIVE TRADE PRACTICES ACT. CLIENT ACKNOWLEDGES THAT IT IS A LEGAL ENTITY WITH SUFFICIENT RESOURCES TO RETAIN COUNSEL, THAT COUNSEL HAS REVIEWED THESE TERMS OF SERVICE AND WAIVES ANY CLAIM UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS & COMMERCE CODE. CLIENT IS RESPONSIBLE FOR USING THE SERVICES IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.
14. Limitation of Liability.
(a) Except as may be required by law where Client is a consumer, in the event of a breach of this Agreement by Contractor, the remedies of Client will be limited to actual damages but will not exceed the greater of the amount paid by Client for the Services during the 12-month period immediately prior to the date in which those actual damages were incurred or US$5,000.
(b) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL EITHER CLIENT OR CONTRACTOR (OR THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(a) Choice of Law; Arbitration. The Parties agree that the laws of the State of Texas shall govern the validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the Parties hereunder. Any dispute, controversy or claim arising out of the terms of this Agreement or its interpretation shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s commercial arbitration rules then in effect. The number of arbitrators shall be one (1). The place of arbitration shall be Austin, Texas. The language used in the proceedings shall be English. The arbitration award shall be binding, and judgment upon the award may be entered in any court having competent jurisdiction thereof. Contractor or its affiliates may then seek injunctive or other appropriate relief in any state or Federal Court in the State of Texas, and Client waives any objection to exclusive jurisdiction and venue in such courts. CLIENT ACKNOWLEDGES THAT IT IS WAIVING ITS RIGHT TO HAVE ITS DISPUTES HEARD IN A COURT OF LAW AND TO HAVE A TRIAL BY JURY IF THAT WOULD OTHERWISE HAVE BEEN AVAILABLE.
(b) Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by either Party shall be in writing and shall be validly given or made to the other Party if personally served (by hand or by overnight courier), or if deposited in the mail, certified or registered, postage prepaid, return receipt requested and notices may also be given by e-mail or facsimile transmission, provided, however, that receipt of any such e-mail or facsimile transmission is established by a read receipt or answerback confirmation. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five (5) days after deposit thereof in the mail addressed to the Party to whom such notice, demand or other communication is to be given. If such notice is given by e-mail or facsimile transmission, notice shall be deemed given on the date such e-mail or facsimile was sent provided that receipt of such e-mail or facsimile transmission is sufficiently proven. Either Party may change its address for purposes of this paragraph by written notice given in the manner provided above.
(c) Publicity. Contractor may publicly identify Client as a customer and use Client’s logo on Contractor’s website, in sales materials, and in print media in accordance with Client’s usage guidelines, all for the limited purpose of recognizing Client as a customer of Contractor. In addition, Client agrees to review and approve any press release from Contractor in a timely manner. Client will also support reasonable and periodic requests from Contractor to respond to inquiries from prospective Contractor customers and other marketing opportunities. Contractor agrees to coordinate and reasonably limit any such requests.
(d) Severability. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
(e) Waiver; Rights Cumulative. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of Contractor to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter. The rights and remedies of Contractor herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
(f) Assignment. Client may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Contractor. Contractor may not assign this Agreement without providing notice to Client, except Contractor may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
(g) Force Majeure. Except for payment obligations, neither Contractor nor Client will be liable for inadequate performance to the extent caused by a condition that was beyond the Party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
(h) No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this Section 15(h), Client’s customers are not third-party beneficiaries to Client’s rights under this Agreement.
(i) Entire Agreement. Any titles or headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof. This Agreement constitutes the entire understanding and agreement of the Parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.
(j) Authority. The Parties hereby represent that they have full power and authority to enter into and perform this Agreement and the Parties know of no contracts, agreements, promises or undertakings that would prevent the full execution and performance of this Agreement.