2. Your Account. You must be 18 years of age and create an account with us to use or order Services. To set up and activate your account, you may be required to provide certain information such as your name, address, phone number, email address and valid payment method (“Registration Information”). You hereby grant to Office Assistant permission and a perpetual, worldwide, royalty-free, non-exclusive, right and license to copy, reproduce, store, record, disclose, transmit, display, access, and use the Registration Information in connection with the activation, provision, support, administration, management or improvement of the Services as set forth in these Terms of Service or otherwise permitted by Law. You represent and warrant that all Registration Information, including any payment method provided by you or on your behalf, will be true, accurate, current and complete, and that you will promptly confirm, update or supplement your Registration Information on file upon our request or if such information changes. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account; you agree to accept responsibility for all activities that occur under your account or password. We reserve the right to cancel or refuse any Service cancel or refuse to fulfill any Work Folder, terminate your account, or terminate your right to use the Website in our sole discretion.
3. Services. The Services are comprised of Phone Services, and the specific administrative tasks and functions you request we perform on your behalf (collectively the “Services”) by contacting us (e.g. via email, phone, text or in person). If you do not request customized Services by creating and uploading a Work Folder, we will create one for you based on the information you provide to us.
4. Work Folders. You are responsible for ensuring that the information included in any Work Folder is accurate and complete. All Work Folders must include the following (the “Work Requirements”): (a) a detailed description of the Services to be performed; (b) contact details, documents, materials or other information specified in the Work Folder or otherwise necessary to perform or complete the requested Services; (c) the date and time you are requesting we complete the Services (“Time Frame”) set forth in the Work Folder; and (d) any other relevant information necessary to perform and complete the Services requested, including but not limited to any special instructions, limitations or restrictions. We will use reasonable efforts to complete the Services within the Time Frame listed in each Work Order; however, we do not guarantee we will complete the Services within the Time Frame requested. Failure to provide the Work Requirements or changes to your Work Folder may result in the delay of the start and/or completion of the Services. Time we incur because of missing or incomplete Work Requirements, including obtaining additional instructions or clarification from you regarding the requested Services, will be charged to you as part of our fulfillment of the Services set forth in the Work Order.
5. Phone Services. Phone Service provides a local phone number allowing Office Assistant to answer and handle your calls as designated in your Work Folder. Live minute usage charges are billed on actual minutes logged by the phone system. When calling or faxing on your behalf to destinations outside of the continental USA or Canada, international rates apply from the first minute. Outgoing faxes are charged by the page and are typically equivalent to one automated minute per page. Usage fees will be billed in arrears and charged to your Authorized Payment Method. You agree that we may submit these charges to your Authorized Payment Method, without further notification or authorization from you. In the event your account is terminated, we have the authority to charge your Authorized Payment Method for any additional usage fees you may have accrued during the term. You may port your current number to us, with your current providers permission, for a one-time $75.00 port fee. We own all numbers used under these Terms of Service or as part of the Services, and numbers may not be moved away from Office Assistant unless you ported a number to us originally, in which case a one-time $75.00 port fee will apply to port the number away. You agree that you are not the owner of any phone number assigned to you by us. Upon termination of your account for any reason, such number may be re-assigned immediately to another customer. We may from time-to-time need to change the number assigned to you. You agree we will not be liable for any damages whatsoever (including consequential or special) arising out of such re-assignment or number change. You hereby waive any claims with respect to such change. You are not authorized to charge services to any number assigned to you; any such charges will give us the right to immediately terminate your account without notice and submit such charges to your Authorized Payment Method.
6. Fees and Payment for Services. All Services are billed by the minute. Payment for Service Packages you purchase from us are due and payable at the time you place your order. Thereafter Service Package fees are due and payable, without offset or demand, in advance on the first of each month during the Package Term (defined below). All Service fees (including the fee for On Demand Minutes), will be charged to your credit card or debited from your bank account provided by you as part of the Registration Information (the “Authorized Payment Method”). You hereby authorize and agree that the Authorized Payment Method will be charged or debited for all Service fees without any prior notice or invoice. Fees for On Demand Minutes may be immediately charged to or debited from the Authorized Payment Method, but in any event, are due and payable on the 1st of the month following the date of use, if any. If payment is declined, you will incur and agree to pay a $25.00 service fee, and in the event your Authorized Payment Method is a declined credit card, then you must provide, within three (3) days of demand (including a demand by email), a new credit card (which such new payment method shall become the Authorized Payment Method) either directly to us or via your account on the Website. All other amounts, including late charges or service fees, are due on the date such charges are assessed and you authorize Office Assistant to receive payment of such additional amounts by charging them to the Authorized Payment Method. If you dispute any charge, you agree that the charge will still be paid through the Authorized Payment Method and must be disputed in writing within thirty (30) days of the charge being made or you will be deemed to have waived the right to dispute such charge. No endorsement or statement on a check or letter accompanying a check or payment shall be considered an accord and satisfaction, and we may accept such check or payment without such acceptance being considered a waiver of any rights we may have under these Terms of Service or applicable law. If any payment for the charges for the Services due hereunder is not received by the fifth day of the month for which such fees are due (or if payment of any other amounts due under these Terms of Service, including any fee for On Demand Minutes, is not made by the fifth day of the month following the date such charges were due), then a late charge shall be immediately due equal to the greater of (i) ten percent (10%) of the total unpaid balance due from you , and (ii) $50.00, not to exceed the maximum allowed by law. You hereby agree that such late charge represents a fair and reasonable estimate of our cost due to the late payment. Our acceptance of a late charge shall not cure or waive your default, nor be deemed an election by us of our remedies for such default, and we expressly reserve the right to exercise any of its rights and remedies available to us under these Terms of Service or at law. Notwithstanding the above, Service fees are subject to change from time to time without prior notice. You agree to pay the then current rate for any Service you order. You agree that you will be charged at the On Demand Minute rate for any minutes you use during a billing cycle in excess of your Service Package until the next billing cycle begins.
7. Service Package Term; Automatic Renewal and Downgrades. The term for all Service Packages is one calendar month and starts on the date your order is processed online or over the telephone, and ends on the last day of such month (each a “Package Term”); minutes and fees for Service Packages purchased on a date other than the first of the month will be prorated by the number of days remaining in the first month of the Package Term. Any minutes included in your Service Package (“Package Minutes”) are valid only during the billing cycle of the then current Package Term and expire and the end of each Package Term. Unless properly terminated or downgraded, the Package Term for all Service Packages will be automatically renewed and extended for successive periods equal to one calendar month until terminated by you or us as provided herein. You may terminate or downgrade a Service Package by giving us written notice of termination or downgrade by emailing “email@example.com”. Once we receive your written notice of termination/downgrade, your Service Package will terminate/downgrade on the last day of the month of the then current Package Term.
8. Taxes, Surcharges, and Fees. You agree to pay any sales, use, property, excise or other taxes, franchise fees, and governmental charges (excluding income taxes) arising under these Terms of Service or the provision of the Services by us to you, in addition to any surcharges that may be imposed as may be permitted under and consistent with applicable law. We reserve the right from time to time to change the surcharges for Services to reflect the charges or payment obligations imposed on us, which we are permitted or required under applicable law to pass through to you. Should we pay or be required to pay such liabilities (including any taxes that were due but not charged or previously collected), you agree that we may charge your Authorized Payment Method on file or invoice you, as applicable, for such payments upon receipt of an invoice and showing of indebtedness to Office Assistant.
9. Discounts and Promotions. From time to time in our sole discretion, we may offer promotions or discounts. Any promotion or discount codes must be provided to us upon purchase of the applicable Services. You are not entitled to a subsequent credit for any promotions or discounts if you do not request the promotion or discount credit at the time of account creation, new Service Order or change of Service. Promotions and/or discounts may not be used cumulatively or retroactively.
10. Prohibited Use. You acknowledge and agree not to use the Services in any of the following ways: (a) Using the Services in any manner that is violation of applicable law, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious, or invasive of another’s privacy; (b) Sending messages or advertisements, including email, voicemail, SMS, or faxes, without the consent of the recipient or otherwise in violation of applicable law; (c) Intentionally engaging in blasting or broadcasting bulk communications, advertisements, or messages, including without limitation through email, voicemail, SMS, faxes; (d) Negligently, recklessly, knowingly, or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous; (e) Transmitting any material that may infringe, misappropriate, or otherwise violate the intellectual property rights, rights of privacy, personality, or publicity or other rights of Office Assistant or third parties; (f) Transmitting any communication that would violate any applicable law, or using the Services to facilitate any illegal activity; (g) Interfering with another customer’s use of the Services; (h) Using the Services in any way that interferes with, disrupts, prevents or restricts other customers’ and third parties’ use and enjoyment of the Services; (i) Interfering with, or disrupting, networks or systems connected to the Services; (j) Granting rights to third parties with respect to the Services, including but not limited to selling; reselling; distributing; leasing; exporting; importing; or otherwise granting or purporting to grant rights to third parties with respect to the Services; (k) Undertaking, directing, attempting, causing, permitting, or authorizing the copying, modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of any software and hardware used in conjunction with the Services, or part thereof; (l) Defeating, disabling, or circumventing any security mechanism related to the Services or the Website; (m) Gaining access to or using (or attempting to gain access or use) the account of other Office Assistant clients in any unauthorized manner (including without limitation through password mining) without such person’s express written consent; (n) Engaging in or to allowing trunking or forwarding of your Office Assistant telephone or facsimile number to (an)other number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (“PBX”) or a key system; (o) Using any third party (including Office Assistant) trade mark or service mark or logo or other proprietary information without the applicable party’s prior written consent; (p) using the Website (including a Work Folder) or the Services to store protected health information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996, and similar legislation in other jurisdictions, and the regulations promulgated pursuant thereto WE SPECIFICALLY MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT YOUR SERVICES, YOUR ACCOUNT(S), OR THE PRODUCTS (OR THE USE OF ANY OF THE FOREGOING BY ANY PARTY) COMPLIES OR WILL COMPLY WITH HIPAA OR ANY OTHER LAW OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA OR ANY OTHER LAW. You hereby release, discharge, and hold harmless Office Assistant (and its affiliates) from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section 12.
11. Employee Relations and Replacement Cost. You acknowledge that we and our affiliates expend substantial amounts of money to acquire employees for the Services provided to you, including advertising, employment agency fees and training costs. You covenant and agree that for as long as you receive Services from Office Assistant or maintain an account on OfficeAssistant.com, and for a period of six (6) months thereafter, you will not directly or indirectly (a) induce or attempt to induce any officer, employee, representative, independent contractor or agent of Office Assistant or our affiliates (collectively the “Restricted Parties”) to leave the employ of the Restricted Parties; (b) hire any person who was an employee of a Restricted Entity within one (1) year following the date of termination of such person’s employment with the Restricted Party; (c) induce or attempt to induce any customer, supplier, vendor, lessor, lessee, licensee or other business relation of a Restricted Party to cease doing business with a Restricted Party; or (d) intentionally interfere with the relationship between us or our affiliates and any client, customer, supplier, vendor, lessor, lessee, licensee or other business relation thereof (including by inducing or attempting to induce any such person to reduce the amount of business it does with Provider (or its affiliates); Because of the difficulty in ascertaining damages for breach of this covenant, you agree that upon any breach thereof, you will pay to Office Assistant, as liquidated damages, a sum equal to six months base pay for each employee or former employee concerned.
12. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE AND THE SERVICES IS AT YOUR SOLE RISK. THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WE MAKE NO WARRANTY THAT THE WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR VIRUS-FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OR ANY INFORMATION OR PRODUCTS OBTAINED THROUGH THE WEBSITE OR THE SERVICES OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE OR THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES UNDER CERTAIN CIRCUMSTANCES; CONSEQUENTLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
13. LIMITATION OF LIABILITY. YOU EXPRESSLY AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT, COVER, OR SUBSTITUTION GOODS OR SERVICES; LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES OR PROFITS; INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, RELIANCE, REPUTATIONAL OR PUNITIVE DAMAGES OF ANY KIND ARISING IN CONNECTION WITH YOUR USE OF THE WEBSITE OR THE SERVICES, INCLUDING ANY DELAYS, FAILURES AND/OR INACCURACIES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF WE HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ALL OTHER TORTS.
14. DIRECT DAMAGES CAP. EXCEPT IN THE EVENT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, YOU AGREE THAT OUR TOTAL AGGREGATE LIABILTIY SHALL NOT EXCEED THE SERVICE FEES PAYABLE HEREUNDER DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO LIABILITY. THE LIMITATIONS AND EXCLUSION SET FORTH HEREIN SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL NOT DISCLAIM, LIMIT OR CAP YOUR OBLIGATION TO PAY ANY FEES OR CHARGES OR OTHER AMOUNT OWED TO OFFICE ASSISTANT OR ANY DAMAGES TO WHICH WE ARE ENTITLED UNDER APPLICABLE LAW.
15. Indemnification. In addition to its specific indemnification responsibilities set forth elsewhere in these Terms of Service and as permissible under applicable law, you shall, at your own expense, indemnify and hold harmless, individually and collectively, Office Assistant, its affiliates, agents, and other providers who furnish goods and services to you in connection with the Services, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties”) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees) arising from or related to: (a) the use of or reliance upon the Services by you or any third party acting with your permission, knowledge, authority or direction; (b) a breach of these Terms of Service by you, or any third party using your account; (iii) any negligent acts, omissions to act or willful misconduct by you or any third party acting with your permission, knowledge, authority or direction; (iv) the inability to use the Services or failure or outage of the Phone Services for any reason; (v) the use of the Services in connection with a violation of any applicable law, code, regulation, or ordinance; or (vi) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, intellectual property rights, rights of privacy, and rights of publicity.
16. Effect of Termination. When your account is terminated, and/or the Services terminate, either at expiration of the term or early termination hereunder, you shall no longer be entitled to use Office Assistant’s addresses or telephone lines for any reason or in any manner whatsoever, including, but not limited to, advertising, marketing or business listing, either over the Internet or otherwise. Unless there is a written agreement to the contrary signed by both parties, telephone service will be disconnected. THE PROVISIONS OF SECTIONS 12, 13, 14, 15, 16, 17, 18, AND 20 SHALL SURVIVE TERMINATION OR EXPIRATION OF THE SERVICES AND APPLY IN ANY AND ALL CIRCUMSTANCES.
17. Governing Law; Jurisdiction and Venue. These Terms of Service shall be interpreted, construed and enforced in accordance with the laws of the state of Texas. All obligations under these Terms of Service are performable in Dallas county, Dallas, Texas which shall be the exclusive venue for all legal actions.
18. WAIVER OF JURY TRIAL. WE AND YOU, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH HEREBY KNOWINGLY, INTENTIONALLY, IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FOREGOES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THESE TERMS OF SERVICE, THE SERVICES, THE WEBSITE OR ANY CONDUCT, ACT, FAILURE TO ACT OR OMISSION OF OR BY YOU OR US, OR ANY OF OUR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH EITHER PARTY, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, OR IN THE ENFORCEMENT OF ANY OF THESE TERMS OF SERVICE. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY YOU AND US, AND EACH PARTY HEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANYWAY MODIFY OR NULLIFY ITS EFFECT.
19. Waiver. No express or implied waiver by Office Assistant (or its affiliates) of any event of noncompliance shall in any way be a waiver of any further subsequent event of noncompliance.
20. Confidentiality. Both you and we recognize that each other may, in the course of obtaining, using or providing the Services, come into possession of or learn confidential and proprietary business information of the other (“Confidential Information”). You and we each agree to: (a) provide, at a minimum, the care to avoid disclosure of unauthorized use of Confidential Information as is provided with respect to our own similar information, but in no event less than a reasonable standard of care; (b) use Confidential Information solely for the purposes of these Terms of Service, including as it relates to using or providing the Services; and (c) not disclose Confidential Information to any third party without the express prior written consent of the other party. You agree that if we transfer our business or any business segment that provides Services to you, we are authorized to transfer all information associated with or in your account to our successor. You acknowledge and agree that we may record calls at any time for any reason.
21. Future Changes to these Terms of Service. We may change the terms of these Terms of Service from time to time upon delivery of electronic or written notices to you or posting such changes on the Website. We generally provide written notice of changes to your account, including these Terms of Service and any other legal agreements, via email, electronic notice on the Website or your account page, or on your billing statements, if any, or as otherwise required by applicable law. You agree to carefully read and review each such e-mail notice, electronic notice, and billing statement from us fully regarding any such notices of changes to your account, the Services or these Terms of Service. Subject to applicable Law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of these Terms of Service and become binding on you on the later of the date they are posted on the Website or as otherwise indicated in the notice to you. You agree that you are solely responsible for: (a) making sure that your registered email account is current and functional; (b) checking your registered email account regularly; (iii) checking the Website and your account page regularly; and (iv) making sure that our communications are not blocked or rendered undeliverable by you, your computer, any software installed on your computer, your Internet service provider, or for any other reason. Continued use of the Services or the Website will constitute your acceptance of the modified terms. If the terms of these Terms of Service are amended and you do not wish to accept the modified terms, you may terminate these Terms of Service as provided for in Section 6 herein.