Terms and Conditions
1. PAAS (PEOPLE AS A SERVICE) SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Helpware NOW will use commercially reasonable efforts to provide Client the Services. As part of the set up process, Client will identify an administrative user name and password for Client’s account. Helpware NOW reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Helpware NOW will provide Client with ongoing support, management and quality control services in accordance with Helpware NOW’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Client will not, directly or indirectly: hire Helpware NOW’s employees, or otherwise attempt to divert Helpware NOW’s employees to other employers.
2.2 Helpware NOW shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise be able to provide the Services to Customer, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Helpware NOW shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Helpware NOW includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Helpware NOW to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Client shall own all right, title and interest in and to the data provided by Client, as well as any data that is based on or derived from the Client Data and provided to Client as part of the Services. Helpware NOW shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) all intellectual property rights related to any of the foregoing.
4. PAYMENT OF FEES
4.1 Client will pay Helpware NOW the then applicable fees described in the Order Form for the Services and Set Up Fees in accordance with the terms therein (the “Fees”). Helpware NOW reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Term upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that Helpware NOW has billed Client incorrectly, Client must contact Helpware NOW no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Helpware NOW”s customer support department. If Client provides credit card details or ACH bank charge details the Client agrees that Helpware NOW will auto bill the account each billing period.
4.2 Full payment for resources provided in any given month must be received by Helpware NOW prior to the first day of the new monthly service period. First month service fees and set up fee is due immediately after the Helpware NOW PaaS Services agreement is executed. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Should Service be terminated all Service Fees for the Term are immediately due. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Helpware NOW’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term of one year as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days before the end of the initial service term, with the exception of the first 60 days when Client can cancel 5 days prior to the end of first or second month billing cycle.
5.2 A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In no event will termination relieve Client of the obligation to pay any fees payable to Helpware NOW.
5.3 Upon any termination, Helpware NOW will make all Client Data available to Client for electronic retrieval for a period of thirty (30) days, but thereafter Helpware NOW may, but is not obligated to, delete stored Client Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Helpware NOW shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform all Services in a professional and workmanlike manner. Services may be temporarily unavailable for unscheduled emergencies, sick days or other unforeseen issues that are beyond Helpware NOW’s reasonable control, but Helpware NOW shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption due to holidays, vacation days or Client sponsored events. However, Helpware NOW does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND SET UP SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, HELPWARE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO HELPWARE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT HELPWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Helpware NOW’s prior written consent. Helpware NOW may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Helpware NOW in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Client provides Helpware NOW the right to use Client logo in Helpware NOW marketing materials and on Helpware NOW website.