Terms of Service
Professional services Terms and Conditions
The services to be covered under this Agreement include work done by Virtual Assistants sourced through Derek James Sells, LLC. If the purchaser of such services (“Client”) chooses to order products or services from Derek James Sells, LLC or any of its Affiliates (“Service Provider”) utilizing the Internet or Service Provider’s website, the terms and conditions contained therein shall apply to any such products or services ordered. The ongoing training and management of the assigned Virtual Assistant shall be Client’s sole responsibility.
2. Pricing & Terms of Payment
(a) The price for services to be provided is set forth at initial payment and will be charged in a monthly recurring payment plan. Service Provider, may at any point, increase charges for services by giving the Client thirty (30) days’ written notice.
(b) All payments are to be made monthly via forms of payment acceptable to Service Provider such as credit card or PayPal, or other and different forms as Service Provider may from time to time choose. Failure to pay within specified terms may, at the option of Service Provider, result in the suspension of services, and may result in the termination of the contract by Service Provider.
Service Provider reserves the right to assess and collect late-payment charges of 1.5% per month on past due balances.
(c) Client agrees to pay all charges in full by the due date. Client agrees that it may not withhold any payment for any reason, including any dispute between the parties. Service Provider may require full or partial advance payment prior to providing any service. Service Provider may apply payments from Client, or monies owed to Client, toward amounts owed under this Agreement or any other amounts owes to Service Provider. If Client elects to pay by credit card, we will bill the card automatically at the start of each billing period. Client agrees to keep current all credit card information throughout the term. By providing credit card or bank account information for payment purposes, Client authorizes Service Provider to charge single or recurring payments electronically via the account provided information until automatic payment is canceled by Client. Client may choose to end its continuing service plan at any time.
3. Fees & Taxes
Client, at its expense, shall pay, discharge, and be responsible for, all licensee fees, business, sales, use, or other similar taxes or assessments charged or levied in connection with this Agreement; excluding, however, all taxes and assessments applicable to Service Provider income or applicable to Service Provider property.
4. Proprietary Rights
Except for any deliverables agreed upon by the parties, Service Provider does not convey or transfer nor does Client obtain any right or interest in any of the systems, tools, data or materials or process utilized or provided by Service Provider in connection with the performance of this Agreement.
5. Client Representations
Client represents and warrants to Service Provider that Client has the right to authorize Service Provider to make changes and alterations to Client’s eCommerce accounts that are or become subject to this Agreement.
6. Client Responsibilities
Client, at its expense, shall: (a) Allow employees or agents of Service Provider reasonable access to the online accounts through which the Service is to be provided, and Client shall not require Service Provider’s personnel to sign any document that has not been approved in advance by Service Provider.
(b) Provide reasonable assistance to Service Provider, as Service Provider may from time to time request in furtherance of the services provided in connection with the parties’ agreement.
Upon the failure of Client to comply with the responsibilities set forth herein (“Non-compliance”), Service Provider may, at its option, refuse to perform any service where Non-compliance has occurred until such Non-compliance has been cured to the reasonable satisfaction of Service Provider, all without any liability or obligation under this Agreement or any applicable law; provided further, that Service Provider may charge Client at then-current rates for any service performed by Service Provider as a result of Non-compliance.
7. Limited Warranty
Service Provider shall provide its services and meet its obligations under this Agreement in a timely and professional manner, using knowledge and skills consistent with generally acceptable standards in its industry, and will provide a standard of care based on commercially reasonable efforts. The services and all products provided as part of the services are provided “as is” and Service Provider disclaims, and Client waives, any warranties, express or implied, as to the merchantability, fitness for a particular use or purpose, title, non-infringement or any other warranty, condition, guaranty or representation related to the services. Service Provider does not warrant that the software, data or any products or services provided hereunder will be uninterrupted or error-free. Under no circumstances, including negligence, shall the Company be liable for any direct, incidental, special or consequential damages or otherwise, including any damages that result from the use of or inability to use services provided hereunder. Service Provider shall not be responsible for any damages whatsoever that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
8. Disclaimer of All Other Warranties
WITH THE EXCEPTION OF THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED UNDER LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT PROMISE THAT THE PRODUCTS OR SERVICES PROVIDED WILL BE ERROR-FREE OR THAT CLIENT’S ACCOUNTS WILL OPERATE WITHOUT INTERRUPTION.
9. Limitation of Liability
Except to the extent finally determined to have resulted from the gross negligence or intentional misconduct of Service Provider, Service Provider’s liability to pay damages for any losses incurred by client as a result of breach of contract, negligence or other tort committed by Service Provider, regardless of the theory of liability asserted, is limited to no more than the total amount of the most recent three (3) months of base fees paid under this Agreement. In any case, Service Provider will not be liable for lost profits or any consequential, indirect, punitive, exemplary or special damages. In addition, Service Provider shall have no liability to client arising from or relating to any third party hardware, software, information or materials. Service Provider is also not liable for direct or indirect damages created by viruses, hackers or other malicious or accidental destruction of systems or data, though Service Provider will attempt to prevent or minimize exposure to such risks.
10. Internet/Transmission Disclaimer
Service Provider does not and cannot control the flow of data over the Internet or the integrity of the Internet (the global system of interconnected computer networks). Therefore, Service Provider disclaims all liability for loss of data, corruption of data, or inability to provide services, as a result of disruptions, slowdowns, breakdowns, or other technical issues affecting the Internet.
Unless otherwise stated herein and subject to mutual agreement to the contrary, the term of this Agreement shall be from the execution of the initial payment made by Client and continue on a periodic and regular basis contemporaneous with payment, until terminated by Client.
11. Right of Termination
(a) Mutual Rights of Termination: Either party may terminate this Agreement at any time if the other party breaches any material provision hereof and fails within fourteen (14) days after receipt of notice of default to correct such default promptly or to commence corrective action reasonably acceptable to the aggrieved party and proceed with diligence to completion. After the initial term, unless dates are otherwise designated for specific services set forth in an exhibit or otherwise, either party hereto shall have the right to terminate this Agreement without cause, without penalty, and without liability for any damages as a result of such termination at any time. If either party properly terminates the Agreement, Service Provider will provide a pro rata refund for any advanced payment for the remaining days of coverage under the Agreement. Any funds so owed by Service Provider will be refunded in full within sixty (60) days after receiving written notice of contract termination. Notwithstanding any termination of this Agreement, Client shall be obligated to pay Service Provider for (i) all products and services provided by Service Provider in accordance with this Agreement at any time on or prior to the effective date of termination; and (ii) all incidental costs and expenses incurred by Service Provider in accordance with this Agreement at any time on or prior to the effective date of termination.
12. Personal Information
Service Provider represents and warrants to Client that in connection with the receipt, storage, use and/or transfer of Personal Information, it shall (a) at all times maintain the confidentiality of personal information provided Service Provider or otherwise disclosed to Service Provider in connection with the provisions of services under this Agreement, and (b) maintain appropriate security measures that are in compliance with data protection regulations promulgated under applicable state and federal laws of the United States. For the purposes of this section “Personal Information” means the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) social security number; (ii) driver’s license number/state-issued identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
(a) Each party shall retain all rights to its Confidential Material. Confidential Material means all proprietary and other information relating to the business and operations of a party that has not been specifically designated for release to the public by an authorized representative of that party, including, but not limited to the following: (i) information, observations, procedures and data concerning the business or affairs of the parties; (ii) products or services; (iii) costs and pricing structures; (iv) analyses; (v) drawings, photographs and reports; (vi) computer software, including operating systems, applications and program listings; (vii) flow charts, manuals and documentation; (viii) databases; (ix) accounting and business methods; (x) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice; (xi) customers, vendors, suppliers and customer, vendor and supplier lists; (xii) other copyrightable works; (xiii) all production methods, processes, technology and trade secrets and (xiv) all similar and related information in whatever form. Each receiving party agrees to take such measures to prevent the unauthorized disclosure to third parties of Confidential Material, as it would take to prevent disclosure of its own proprietary or confidential information but in no event less than reasonable measures. To the extent practicable, information protected by this Agreement shall be marked “Confidential”. Information exchanged prior to the date of this Agreement shall be considered Confidential Material.
(b) Disclosure will be limited to such employees and agents of receiving party as necessary for proper evaluation and provision of services under this Agreement. In the event receiving party must secure the services of a third party for proper evaluation, receiving party shall obtain an agreement from such third party at least as restrictive as this Agreement. Receiving party shall disclose such agreements to other party upon request. Except as necessary for proper evaluation and provision of services under this Agreement, Confidential Material obtained pursuant to this Agreement may not be duplicated, and all Confidential Material exchanged pursuant to this Agreement must be destroyed or returned to the originating party upon request.
(c) Confidential Material may not be used by the receiving party except as expressly permitted herein; no grant of license to use Confidential Material is given by this Agreement.
(d) Confidential Material shall not include the following: Information obtained by receiving party that (i) is or becomes generally known or available to the public through no breach by receiving party, (ii) is lawfully known to it at the time of receipt, (iii) is subsequently furnished to it lawfully by a third party without restriction, or (iv) is furnished by the originating party to a third party without restriction.
(e) Confidential Material is provided “AS IS” and no warranties or representations are given, and receiving party shall rely on such information at its own risk. The exchange of Confidential Material shall not obligate either party to enter into a business or other relationship. If a receiving party receives a subpoena or discovery request for Confidential Material, it shall immediately notify originating party in writing and give originating party the opportunity to contest the disclosure of Confidential Information.
(f) Service Provider may from time to time disclose information to standards or security evaluators in order to remain in compliance with credit card security standards. Such disclosure shall be permitted under this section.
(g) The parties acknowledge that unauthorized disclosure or use of Confidential Material may cause irreparable damage to the disclosing party for which monetary damages may not be adequate relief. Therefore, in addition to any other remedies it may have, the disclosing party shall be entitled to seek injunctive relief against actual or threatened unauthorized disclosure or use of Confidential Material.
(h) Confidential Material shall be protected hereunder for a period of five (5) years following the termination of this Agreement.
14. Non-Solicitation of Personnel
Client shall not solicit for employment, directly or indirectly, the officers, employees, subcontractors or agents (“Personnel”) of Service Provider who have performed duties in support of this Agreement during the term hereof and until eighteen (18) months after the earlier of: (a) the termination of such Personnel’s engagement; and (b) the termination of this Agreement, unless explicitly agreed to in writing by the parties. No offer or other form of solicitation of employment will be made at any time when the employment of such Personnel is prohibited by this Agreement. Should Client solicit any Personnel for employment in violation of this Section, and should that employee subsequently become an employee of the Client, the Client agrees to reimburse Service Provider an amount equal to the salary and commissions, if any, earned by the employee during the last twelve (12) months while employed by Service Provider. Both parties agree that this amount represents reasonable compensation to Service Provider for its cost of recruiting and training, and does not constitute a penalty. Such amount will be due and payable by the Client within ten (10) days of receipt of written demand from Service Provider.
15. Binding Agreement and Assignments
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement is not transferable or assignable without the prior written consent of the other party provided however, that such consent shall not be required in the event of an assignment made to an affiliate of either party or to a successor or purchaser in a merger, acquisition or sale or transfer of all or substantially all of the business, assets or equity of either party, provided that the successor/assignee is not deemed to be a competitor of non-assigning party.
No waiver of any provision or breach shall be implied by failure to enforce any rights or remedies herein provided, and no express waiver shall affect any provision or breach other than that to which the waiver is applicable and only for that occurrence.
Service Provider may subcontract for on-site services provided to Client. Such subcontracting will not release Service Provider from any of its obligations in this Agreement.
18. Force Majeure
Neither party shall be liable for any failure, inability or delay to perform hereunder (except the payment of money), if such failure, inability or delay is due to circumstances beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strike, lockout, labor disturbance, social conflict, fire, explosion, earthquake or sabotage.
All notices herein provided for or that may be given in connection with this Agreement shall be by certified mail with postage prepaid and return receipt requested or personal delivery or fax. If any such notice by Client to Service Provider, it shall be addressed to any such address as a party may from time to time direct: If to Service Provider: Derek James Sells, LLC, 158 Lafayette St., Schenectady, NY 12309, ATTN: Legal Department.
20. Dispute Resolution
The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy. A party may give written notice of any dispute not resolved in the normal course of business. Within fifteen (15) days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and the response shall include (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within thirty (30) days after delivery of the disputing party’s notice, the executives of both parties shall meet at a mutually acceptable time and place to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. If the parties cannot reach a satisfactory settlement under the aforementioned process, they each agree to present the dispute to non-binding mediation before a mutually agreeable neutral mediator at a mutually agreeable neutral site. If mediation is not successful, the parties may proceed to binding arbitration or litigation.
21. Governing Law
This Agreement shall be interpreted and governed by the laws of the State of New York without giving effect to choice of law provisions. Any dispute arising under this Agreement shall be heard exclusively in the courts sitting in the State of New York, and the parties hereby consent to the jurisdiction of such courts.
22. Attorneys’ Fees
Each party in any litigation shall pay its own attorneys’ fees and related costs.
23. Independent Contractor
Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a partnership between a party and the other party. Each party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits.
24. Entire Agreement
This Agreement sets forth the entire Agreement and understanding between the parties with respect to the subject matter hereof, and replaces any prior oral or written communications. Exhibits attached hereto, if any, are made a part of this Agreement. This Agreement shall not be supplemented, modified or amended except by a written instrument signed by duly authorized representatives of Client and Service Provider, respectively, and no other person has or shall have the authority to supplement, modify or amend this Agreement.
If any term or provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining terms and provisions will continue in full force and effect if the essential terms and conditions of this Agreement for each party remain valid, binding and enforceable.
26. Headings and Interpretations
The headings of the sections of this Agreement are intended solely for convenience or reference, and shall be given no effect in the construction or interpretation of this Agreement. The use of the masculine pronoun herein shall, where the context so indicates, be deemed to include the feminine and the neuter and vice versa, and the use of the singular shall be deemed to include the plural and vice versa.
27. Order of Precedence
Upon any conflict or inconsistency of terms among the various documents that, at any given time, constitute this Agreement, the order of precedence that shall apply is as follows, with each listed document or type of document superseding and prevailing over any subsequently listed document or type of document, and with later executed documents prevailing over earlier documents of the same type, each solely to the extent of any irreconcilable conflict or inconsistency of the terms and conditions thereof: (i) this Agreement; (ii) any exhibits or statement of work; (iii) change authorizations and/or orders executed by the parties; and (iv) purchase orders and/or statements of work executed by the parties. Any preprinted terms and conditions in any Client purchase order shall be deleted and be void and of no effect.
This Agreement may be executed in counterparts. Each such counterpart, if executed by both parties, shall be an original and all such counterparts together shall constitute but one and the same document. This Agreement shall not be deemed executed unless and until at least one counterpart bears the signature of each party’s designated signatory.
29. Indemnity and Hold Harmless:
Client agrees to indemnify, defend, protect and hold free and harmless Service Provider and its officers, members, directors, and employees from and against any and all liabilities, damages, costs, expenses, obligations, claims, fines, penalties or losses, including but not limited to all attorney’s fees and other costs of defense, arising in any way from the fault or negligence of Client, its agents, employees, and sales personnel or from the publication of any editorial or Client materials supplied by Client, including, without limitation, any such liability arising out of copyright, privacy, or antitrust. Client shall not, however, be liable hereunder for any damages or other losses set forth above which are caused by the fault or negligence of Service Provider. Service Provider shall not, however, be liable hereunder for any damages or other losses set forth above that are caused by the fault or negligence of Client.
30. Client represents and warrants to Service Provider that it is fully authorized to deliver, and authorizes Service Provider to deliver on its behalf, content through advertisements (including, without limitation, all content such as text, graphics, URLs, and sites to which URLs are linked), and that all content complies with all applicable laws and regulations. If an agency is entering into this Agreement on behalf of Client, Agency agrees to the foregoing representations and also represents and warrants that it is the authorized agent of Client, and Client is not, as of the date of this Agreement, in material breach of any agreement with or in default with respect to any amount owed to Agency. It is the responsibility of Client to inform Service Provider of removed or relocated web content that may adversely affect the advertisements’ ability to deliver appropriate content. Service Provider shall not be held liable for any clicks delivered to removed or relocated web content.
31. Service Provider may provide certain tools, methods and resources to Client that are intended to help Client grow its business. However, Client is fully and exclusively responsible for its own business performance. Client has full and exclusive responsibility for understanding and ensuring compliance with any regulatory, legal or contractual obligations related to Client’s business, including without limitation, data held or controlled by Client, information provided by Client and/or other third parties and any safeguarding and security measures that may be required. Client is solely responsible for the final outcomes and results produced.