The Applicant for Participation (“You”, “Your”) in the Program for White Labeled Help Desk Services (“The Program”) and J. Colin Computing Systems, Inc., doing business as HelpDesk.tech (“We”, “Us”, “Our”,“The Company”, “HelpDesk.tech”) have agreed to work toward mutual benefit for the purposes of providing remote help desk services to Your users on your behalf, and to help The Company launch a new offering.
All applicants agree to the following Terms and Conditions (“T and C’s”) as of the date of application, for a term no less than 12 months. If You are accepted into The Program, these T and C’s are binding.
In consideration of the mutual covenants set forth in these T and C’s, You and The Company hereby agree as follows:
The Company shall, during the Term of Service (as defined below) provide to You the following support and help-desk services described below (the “Services” or “Work Product”), at such times as Your users may reasonably request via email or phone call to a specially provided email address, and/or phone number, and/or web template, and/or chat dialogue unique to You and Your users. The method(s) of contact shall be determined by The Company with every consideration given to Your needs and requirements for a healthy operation.
The Program includes the following Services:
The Program includes the following Work Product:
The Company shall not be responsible for the following:
These terms shall commence on Application Date and shall continue in full force and effect for a minimum 12 months, or until sooner terminated by The Company upon at least thirty (30) days prior written notice. Absent a termination notice, no event (except breach) may terminate this Agreement prior to End Date. Upon termination of this Agreement, The Company shall transfer and make available to You all property and materials in The Company’s possession or subject to The Company’s control that are the rightful property of You. The Company shall make every reasonable effort to secure all written or descriptive matter that pertains to the Services or Work Product and agree to provide reasonable cooperation to arrange for the transfer of all property, contracts, agreements, supplies, and other third-party interests, including those not then utilized, and all rights and claims thereto and therein.
In the event of loss or destruction of any such material or descriptive matter, The Company shall immediately notify You of the details of the loss or destruction in writing and provide the necessary information for a loss statement or other documentation to You.
Cure Period. In the event that The Company fails to meet its obligations within the Scope of Services of these T and C’s, The Company shall have thirty (30) days within which to cure such breach, after receiving written notice from You specifying in reasonable detail the basis for the claimed breach (“Cure Period”). No breach of the T and C’s shall be actionable if the breaching party is able to cure the breach within the Cure Period. Otherwise, You may cancel your participation in the Program without any further obligation to The Company.
The Company shall have ownership to all The Company’s Material.
“The Company’s Material” consists of all copyrightable:
(a) Materials that do not constitute Services or Work Product (as defined in Scope of Services). (b) Materials that are solely owned by The Company (“Pre-existing Works”) or licensed to The Company. (c) Materials that are incorporated into the Work Product or a part of the Services. (d) Additional materials shall include, but are not limited to: proprietary processes, procedures, documentation, training materials, or other materials unique or special to The Company and its operations.
The Company shall hold all rights, title, and interest in and to The Company’s Material. You shall not do anything that may infringe upon or in any way undermine The Company’s rights, title, and interest in The Company’s Material, as described in this document.
Payment shall be for services provided under the terms of these T and C’s, and shall be detailed in your Master Service Agreement upon acceptance into The Program. In addition to payments rendered under these T and C’s for The Program for all of The Company’s Services under these T and C’s, You shall compensate The Company in regular feedback (minimum monthly), Win or Lose Case Study, and Public Testimonial at the request of The Company, pursuant to the terms of Exhibit A attached hereto. In the event You fail to make any of the payments referenced in Exhibit A by the deadline set forth in Exhibit A, The Company has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement (breach), (2) immediately stop all Services, (3) bring legal action.
All work shall be performed via unattended or attended remote access using tools provided by The Company for the duration of The Program. There shall be absolutely no work performed in person at Your location or at Your users’ location(s).
You and The Company acknowledge and agree that the Specifications and all other documents and information related to the performance, production, creation or any expression of the Services or Work Product are the property of You. Materials shared between The Company and You (the “Confidential Information”) including, but not limited to, documentation, product specifications, drawings, pictures, photographs, charts, correspondence, supplier lists, financial reports, analyses and other furnished property shall be the exclusive property of the respective owner (the “Owning Party”) and will constitute valuable trade secrets. Both parties shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without prior written consent from the Owning Party, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
Excluded from the “Confidential Information” definition is anything that can be seen by the public or has been previously made available by the Owning Party in a public venue.
The Company shall not solicit Your customers or compete for your customers’ business without Your prior written consent, except if Your customer is located in Fresno County in the State of California.
The Company warrant the Services or Work Product(s) will conform to industry best practices. If the Services or Work Product do not conform to the Specifications or industry best practices, The Company shall be responsible for correcting the Services or Work Product without unreasonable delay, at The Company’s sole expense and without charge to You, to bring the Services or Work Product into conformity with industry best practices. This warranty shall be the exclusive warranty available to You.
You waive any other warranty, express or implied. You acknowledge that The Company is not responsible for the results obtained by You when using any Services or Work Product produced by The Company. You waive any claim for damages, direct or indirect, and agree that Your sole and exclusive remedy for damages (either in contract or tort) is the withholding of the Testimonial described in Exhibit A.
No action, regardless of form, arising out of the Services rendered or Work Product, under the Agreement, may be brought by either party more than one (1) year after the cause of action has occurred. In no event shall The Company be held liable for consequential damages.
The Company is retained as an independent contractor. The Company will be fully responsible for payment of their own income taxes on all compensation earned under this Agreement. You will not withhold or pay any income tax, social security tax, or any other payroll taxes on The Company’s behalf.
The Company understand that it will not be entitled to any fringe benefits that You provide for Your employees generally or to any statutory employment benefits, including without limitation worker’s compensation or unemployment insurance.
The Company adheres to its own policies and procedures concerning code and conduct while serving Your end users and shall always adhere to the height of professionalism. Should a dispute arise between You and The Company regarding The Company’s behavior or the behavior of a representative of The Company, You agree to discuss the behavior with Your dedicated account representative as soon as practicable, or at the latest, during regular feedback meetings prescribed by The Program.
You in no way, will solicit, inquire, or otherwise make an arrangement of employment, contract or covenant, either direct or indirect, with an employee of The Company during participation in The Program, and surviving for a period of three (3) years after an employee leaves The Company’s employment. In the event of a breach of this clause, The Company will be entitled to punitive damages, including but not limited to the full face-value of this agreement, plus the greater of two-hundred-fifty-thousand dollars ($250,000.00) or the value of 3 years’ annual salary and benefits package of the employee solicited, and The Company will cancel all service agreements with You, by virtue of a breach hereto.
The Company shall maintain throughout the entire term of this Agreement, adequate general liability insurance providing coverage against liability for bodily injury, death, and property damage that may arise out of or be based upon any act or omission of The Company or any of its employees, agents, or subcontractors under this Agreement. The Company shall not and will not name You as an additional insured on any applicable policy at any time during this Agreement, or as a condition of acceptance of this Agreement.
You agree to make available to The Company, for The Company’s use in performing the Services required by this Agreement, such items of hardware and software as You and The Company may agree are reasonably necessary for such purpose.
The Company will not be reimbursed for any expenses incurred in connection with the Services or Work Product, whether direct or indirect, without Your express written approval.
These T and C’s contain the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both parties hereto.
These T and C’s shall be governed by and construed in accordance with the laws of the State of California. Exclusive jurisdiction and venue shall be in the Fresno County, State Superior Court.
These T and C’s shall be binding upon and inure to the benefit of You and The Company and their respective successors and assigns.
The waiver by either party of any breach or failure to enforce any of the Terms and Conditions contained herein at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition herein.
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of any aspect of The Program.
The Company reserves all right to assign, sell, modify, or otherwise alter these T and C’s at any time, for any reason. You may assign Your rights and obligations under this Agreement upon written agreement with The Company.
In the event You fail to make any of the payments set forth on Exhibit A within the time prescribed in Exhibit A, The Company have the right to withhold Services, remove Work Product from Our owned resources, or seek legal remedy until payment is made in full.
You warrant that everything You give The Company in the execution or performance of Services, or the creation of all Work Product is legally owned or licensed to You. You agree to indemnify and hold The Company harmless from all claims brought by any third party relating to any aspect of the Services or Work Product, including, but without limitation, all demands, liabilities, losses, costs, and claims including attorney’s fees arising out of injury caused by Your products/services, material supplied by You, or copyright infringement.
You grant The Company the right to use descriptive text, testimonials, performance metrics, and other images, photos, and/or graphics that demonstrate the Services or Work Product for promotional purposes, and/or to cross-link such items with other promotional resources developed by The Company.
The Company has no responsibility for any third party taking all or any part of the Services or Work Product, results of Services or Work Product, or the improper use by any third party of any Services or Work Product produced by The Company.
The Company has the exclusive rights in making any derivative works of any Services, methodology, or Work Product.
In the event any party to The Program or these T and C’s employs an attorney to enforce any of these terms and conditions, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.
The Company is not responsible for any down time, lost files, equipment or electrical failures, acts of nature, force majeure, or any damage resultant from activities considered beyond the control of The Company, such as war, protest, civil unrest, riots, natural disasters or threat of natural disaster, illness or threat of illness, vandalism, and other events. The parties represent and warrant that, on the date first written above, they are authorized to agree to these T and C’s in their entirety, and duly bind their respective principals by their agreement at the time of application into The Program.
In exchange for admission into The Program and for Services and Work Product described in Scope of Services above, You shall render the following to The Company: