THIS AGREEMENT, is entered into by and between Earl Chinnici, operator of EarlsHelpDesk.com and also any employees of Earl Chinnici , hereafter collectively referred to within THIS AGREEMENT as EarlsHelpDesk, and you, hereafter referred to as YOU, an individual, business, partnership, organization, or group wanting to have certain computer services or assistance to be provided by EarlsHelpDesk. The effective date shall be the date this service agreement (hereafter and previously referred to as THIS AGREEMENT) is accepted by YOU and signified by you electronically, verbally, or in writing. By accepting the terms of THIS AGREEMENT, YOU are certifying a desire to allow EarlsHelpDesk to remotely connect to and control said computer or computers for the sole purpose of providing computer related service(s) as agreed upon electronically, verbally, or in writing prior to the remote connection services and at times during the course of remote connection services, hereby referred to as THE SERVICES.
2) RIGHTS AND RESTRICTIONS
During the term of this agreement EarlsHelpDesk may access and perform THE SERVICES on computer(s) belonging to YOU and normally operated by YOU, consistent with the terms of THIS AGREEMENT.
a. YOU shall not reverse engineer, decompile or otherwise attempt to decipher any code or program in connection with THE SERVICES or any other aspect of the EarlsHelpDesk site.
b. YOU shall not modify any part of the EarlsHelpDesk site.
c. YOU shall not use any knowledge gained during the use of THE SERVICES to in any way try to tarnish or harm the reputation of EarlsHelpDesk.
d. YOU shall have the right to terminate this agreement at any time. This right shall in no way affect the right of EarlsHelpDesk to be paid for THE SERVICES rendered.
e. No other rights are granted except as set forth in THIS AGREEMENT.
3) TERM AND TERMINATION
a. Term. THIS AGREEMENT shall commence on the effective date and shall expire when terminated pursuant to Section 3 (b) , below. b. Termination. Either party may terminate THIS AGREEMENT;
(i) if the other party breaches any of its material obligations under THIS AGREEMENT.
(ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
(iii) in the event of a disaster, outage, or other unforeseen event which causes either party to be unable to keep any of the material obligations of THIS AGREEMENT.THIS AGREEMENT will be automatically terminated upon completion of THE SERVICES and upon cleared payment by YOU for THE SERVICES rendered.Upon a termination of THIS AGREEMENT, YOU will immediately discontinue all use of THE SERVICES, cease to represent in any form that YOU are a user of THE SERVICES, and destroy any and all information obtained through THE SERVICES. Neither party shall be liable for any damages resulting from a termination of THIS AGREEMENT as provided for herein; provided, however, that the termination of THIS AGREEMENT shall not affect any claim arising prior to such termination. The termination of THIS AGREEMENT also shall not affect the fees due to EarlsHelpDesk for THE SERVICES.
FEES WILL VARY depending on the type and scope of THE SERVICES needed. YOU FULLY UNDERSTAND that if it is established by EarlsHelpDesk that repairs or services not covered by the scope of THE SERVICES originally negotiated are needed that EarlsHelpDesk will fully discuss at that time any additional fees involved in performing the needed repairs. YOU may at that time ask EarlsHelpDesk to continue with THE SERVICES, or may terminate THE SERVICES in compliance with section (3b), above.YOU agree to pay all prearranged fees associated with THE SERVICES. YOU UNDERSTAND THAT FEES WILL VARY depending on the scope of THE SERVICE, and will be arranged either verbally by use of telephone or any other form of verbal communication, or electronically using such technologies as e-mail, instant messages, Internet web pages, in writing, or by any other means of communication between YOU and EarlsHelpDesk.
5) REPRESENTATION AND WARRANTIES
EarlsHelpDesk WARRANTS THAT THE SERVICES PROVIDED HEREUNDER BY EarlsHelpDesk WILL BE RENDERED SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION ACCOMPANYING THE SERVICES. EarlsHelpDesk CANNOT AND DOES NOT GUARANTEE THAT EVERY PROBLEM, QUESTION, OR ISSUE PRESENTED TO EarlsHelpDesk WILL BE RESOLVED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EarlsHelpDesk MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
6) CONFIDENTIAL INFORMATION
Unless expressly authorized by the other party, neither party shall disclose to any third party any information or materials provided by the other party under THIS AGREEMENT and reasonably understood to be confidential, or use such information in any manner other than to perform its obligations under THIS AGREEMENT. The foregoing restrictions do not apply to any information that is in the public domain or already in your possession, was known to YOU prior to the date of disclosure or becomes known to YOU thereafter from a third party having an apparent bona fide right to disclose the information, or confidential information that YOU are obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing YOU provide EarlsHelpDesk of timely notice of such court order or subpoena. Furthermore, EarlsHelpDesk and YOU will keep in strict confidence all passwords and other access information to THE SERVICES.
7) LIMITATION ON LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN THE CASE OF EITHER PARTY’S BREACH OF SECTION 2 OR SECTION 6 OF THIS AGREEMENT, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY, THEIR RESPECTIVE LICENSERS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, THE PERFORMANCE OR NONPERFORMANCE BY EITHER PARTY OF ITS OBLIGATIONS HEREUNDER, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8) ADDITIONAL TERMS
a. EarlsHelpDesk is an independent contractor. EarlsHelpDesk shall be solely responsible for managing its employees and for any and all compensation, taxes, benefits and liabilities to its employees or service providers. Neither EarlsHelpDesk, nor any of its employees, or representatives shall make any representations, warranties or guarantees with respect to EarlsHelpDesk, THIS AGREEMENT, or THE SERVICES other than as expressly authorized by EarlsHelpDesk.
b. Neither THIS AGREEMENT nor any of the rights or obligations of EarlsHelpDesk may be assigned or transferred, by operation of law or otherwise, without the prior written consent of EarlsHelpDesk and more specifically Earl Chinnici.
c. Neither party shall be liable to the other party for nonperformance of its obligations hereunder to the extent that such failure to perform is rendered by Force Majeure, that is to say, if some unforeseen event beyond the control of that party prevents it from performing its obligations under the contract, but only for so long as such conditions persist. Examples of Force Majeure would include but not be limited to natural disasters, wars, loss of power, loss of Internet connection, or loss of equipment or technology used to perform THE SERVICES.
d. THIS AGREEMENT shall be governed by the laws of the State of Florida without reference to conflict of laws. All actions or proceedings arising in connection with THIS AGREEMENT shall be tried and litigated in state or federal courts located in Columbia County, Florida, unless such actions, suits or proceedings are required to be brought in another court to obtain subject matter jurisdiction over the matter in controversy, and each party irrevocably submits to the jurisdiction of such courts.
e. THIS AGREEMENT sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of THIS AGREEMENT shall be valid or binding on any party unless agreed to in writing. This DOES NOT include the possibility of a verbal quote for additional services after reasonable access has been provided to your computer(s) to determine the necessary scope of THE SERVICES. ANY ADDITIONAL SERVICES AGREED UPON AT THAT TIME WILL INHERIT THE TERMS OF THIS AGREEMENT.
f. In the event EarlsHelpDesk issues any documentation which contains terms or conditions contrary to THIS AGREEMENT in relation to THE SERVICES, the terms of THIS AGREEMENT shall prevail and any such contradictory terms or conditions shall have no force or effect.
g. Any and all notices required or contemplated under THIS AGREEMENT shall be deemed duly given if delivered personally, sent by facsimile with receipt acknowledged, mailed by prepaid registered mail, or certified mail, return receipt requested, or delivered by a recognized commercial carrier addressed to the address last designated to EarlsHelpDesk by YOU.
9) CERTIFICATION OF FREE WILL
YOU certify that THIS AGREEMENT is entered into by FREE WILL, that is to say that YOU are UNDER NO FORM OF DURESS and have not in any way been coerced into entering THIS AGREEMENT between YOU and EarlsHelpDesk.
10) CERTIFICATION OF AGE, LANGUAGE, AND MENTAL CAPACITY
a. YOU CERTIFY TO BE AT LEAST 18 YEARS OF AGE.b. YOU CERTIFY TO BE OF A MENTAL CAPACITY THAT WILL ALLOW YOU TO ENTER INTO A LEGALLY BINDING AGREEMENT BETWEEN YOU AND EarlsHelpDesk AND YOU FULLY UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.c. YOU UNDERSTAND THAT, AT THIS TIME, EarlsHelpDesk DOES NOT HAVE THE ABILITY TO SPEAK ANY LANGUAGE OTHER THAN ENGLISH. YOU CERTIFY A REASONABLE LEVEL OF UNDERSTANDING OF THE ENGLISH LANGUAGE AND A REASONABLE ABILITY TO EXPLAIN THE SCOPE OF SERVICE NEEDED.
Changes to this Agreement
EarlsHelpDesk may update this agreement at any time. We will notify our site visitors and clients of any major changes by placing a prominent notice of the update on this site.
If you have any questions or concerns regarding this agreement, please contact the help desk.