The Terms and Conditions set forth in this Agreement shall apply to and govern the business and services relationship by and between HelloBooked, (to be referred to as “HELLOBOOKED”, or “We”, as the context may so apply) and Customer (to be referred to as “Customer” or “You”, as the context may so apply).
The Scope of the Terms and Condition: shall apply to and govern the Customer’s use of: (1) the HelloBooked Services, including without limitation its Call Center Service and Software and other services provided by HELLOBOOKED (separately and collectively, the “Services”); For purposes of this Agreement, You and We may be referred to as “Us”.
Service Modifications: YOU AGREE THAT HELLOBOOKED MAY MAKE MODIFICATIONS TO THE SERVICES FROM TIME TO TIME IN THE EXERCISE OF ITS SOLE DISCRETION. IF HELLOBOOKED MAKES A MATERIAL CHANGE TO THE SERVICES, HELLOBOOKED WILL NOTIFY CUSTOMER BY EITHER POSTING A NOTICE OF THE CHANGE ON THE HELLOBOOKED WEBSITE OR CUSTOMER PORTAL, OR SENDING AN EMAIL OR CALLING YOU.
Confidentiality: YOU ACKNOWLEDGE AND AGREE THAT HELLOBOOKED IS THE OWNER OF ALL INTELLECTUAL AND OTHER PROPRIETARY RIGHTS IN AND TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE A2C, ITS SOURCE CODES AND OPERATING SYSTEMS, ITS HARDWARE AND SOFTWARE COMPONENTS AND ALL NON-PUBLIC BUSINESS, TECHNICAL, FINANCIAL, KNOW-HOW, COMMERCIAL AND OTHER INFORMATION WHICH IS CONFIDENTIAL AND/OR PROPRIETARY AND/OR TRADE SECRET TO HELLOBOOKED AND SHALL BE DEEMED CONFIDENTIAL AND PROPRIETARY TO HELLOBOOKED FOR ALL PURPOSES, WHETHER OR NOT IT IS LABELED OR IDENTIFIED AS SUCH AT THE TIME OF DISCLOSURE OR USE BY CUSTOMER. YOU FURTHER ACKNOWLEDGE AND AGREE THAT NOTHING CONTAINED IN THIS AGREEMENT, OR BY THE USE OF THE SERVICES, SHALL GRANT YOU ANY RIGHT, TITLE, INTEREST OR LICENSE IN OR TO THE SERVICES.
Your Data: We acknowledge and agree that You are the owner of the data generated by You, as such data may be processed or stored by the Services.
Security: You and We shall use reasonable technical and organizational measures to ensure the security and confidentiality of each party’s proprietary and confidential information in order to prevent, among other things, accidental, unauthorized or unlawful destruction, modification, disclosure, access or loss. You and We shall immediately inform one another of any security breach involving proprietary and confidential information, where “security breach” means any event involving an actual, potential or threatened compromise of the security, confidentiality or integrity of the data, including but not limited to any unauthorized access or use.
You and We shall protect the other party’s proprietary information by employing the same standard of care and safeguards as You and We use to protect our own proprietary information. You shall not use the proprietary information of HELLOBOOKED for the benefit of You, or for the benefit of any other person or party and We shall not use the proprietary information of You for the benefit of HELLOBOOKED or any other person or party. You and We shall not disclose any proprietary information to any other person or party, unless as We deem necessary to provide the Services, or as may be authorized in advance and in writing between Us. This Agreement does not grant either of Us any rights, titles, interests or licenses, whether stated, implied or otherwise, to the other’s proprietary information.
- HELLOBOOKED may terminate: this Agreement immediately upon the failure of Customer to make the rental payments owed by You to HELLOBOOKED when the same are due, or upon Customer filling for protection from creditors in any court of competent jurisdiction or upon a filing being made by creditors against You or upon You ceasing to conduct business for any reason. HELLOBOOKED makes no warranty or guaranty of any kind, whether express or implied, regarding the fitness or merchantability, condition or use of said equipment, except to the limited extent that HELLOBOOKED will replace any equipment with similar equipment if any piece of rented equipment fails to operate in accordance with the manufacturer’s specifications and operation instructions, provided, however, that the failure to operate is not caused by the acts or omissions of You. Any replacement of rented equipment hereunder shall be completed by HELLOBOOKED as soon as practicable after You provide notice and You return the rented equipment that has failed to operate in a normal manner.
- Customer Responsibilities.Customer will forward phones to HELLOBOOKED as reasonably required by HELLOBOOKED to perform the Services. Customer will also make available to HELLOBOOKED any data, information and any other materials reasonably required by HELLOBOOKED to perform the Services, including, but not limited to, any data, information or materials
- Material and associated intellectual property rights developed by a party prior to or outside of the scope of a Statement of Work (“Pre-Existing Material”) shall be, as between the parties, owned by the developing party. HELLOBOOKED shall own all rights, title and interest in all scripts, methodologies, processes, and documentation, and all intellectual property rights therein, developed during the provision of the Services involving (i) implementation or installation of products of HELLOBOOKED (the “Licensed Product”) into Customer’s environment, (ii) configuration of workflow or reporting capabilities of the Licensed Product, and (iii) optimization of the use of the Licensed Product in Customer’s environment (collectively, the “HELLOBOOKED-Owned Work Product”).
Fees and Payment: The fees, costs and expenses for the Services are set forth on Exhibits to this Agreement. Each Exhibit may be amended by Us from time to time, and each Exhibit is incorporated herein by this reference. You agree to pay in full all invoices by HELLOBOOKED for the Services, monthly plus booked calls and other charges related to or generated by the Services within the time period specified on each invoice, as measured from the date of invoice. You agree that all invoices are presumed accurate and shall be binding on You, unless You provide a written notice of the disputed charge that is received by HELLOBOOKED within fifteen (15) days from the date of the invoice for which a dispute may apply. If You dispute a charge in good faith, You may withhold payment of the specific charges in dispute, provided, that You: (i) pay all of the undisputed; and (ii) within fifteen (15) days of the payment due date under the applicable invoice, You provide HELLOBOOKED with a written explanation of and documentary support for the dispute. You and We will cooperate and exercise good faith to resolve any disputed charges within thirty (30) days from the date of the invoice for which You may provide a written dispute and supporting information in a timely manner as set forth herein. Any written dispute that does not have supporting documents or information shall be deemed to be invalid, and You agree to pay the full amount due and owing under the applicable invoice. If We determine, in good faith, that the disputed charge is valid after review of the dispute notice and supporting documentation from You, We will notify You of the determination and, within five (5) business days thereafter, You agree to pay the charges in full for which the dispute by the due date. For illustration purposes, if an invoice for Services, equipment rentals and other fees and costs is dated January 1, a dispute must be made in writing and delivered to HELLOBOOKED no later than January 16 and by January 22, HELLOBOOKED will determine the validity of any dispute with payment to be made no later than January 30 (i.e. thirty (30) days from the date of the invoice). If the invoice is not paid on or before January 30, a notice will be provided to You and payment will be due no later than February 10 along with applicable interest and fees, costs and expenses for non-payment. Any non-payment by You shall be deemed to be a default and breach of this Agreement. If You fail to pay any invoice for Services, for software, for costs, fees and expenses, including without limitation, interest, late charges and collections, then in addition to and not substitution for all other rights and remedies of HELLOBOOKED, HELLOBOOKED may elect to discontinue Services upon notice to You, to demand the return of all software and property of HELLOBOOKED and to cease providing help desk and other assistance related to the Services. You will remain responsible for the payment of all fees, costs, expenses (including collection costs and attorney fees) for the Services under this Agreement and for the payment of all fees, costs and expenses paid by HELLOBOOKED to third persons or parties on your behalf in connection with, related to or arising from the Services.
Taxes, Fees, Licenses and Other: You shall be and remain responsible for all sales and use taxes, licensing fees, permits and other fees and expenses related to or resulting from the Services and the rental equipment. You agree to pay HELLOBOOKED for the Services and the rental equipment without any reduction or set off. If HELLOBOOKED is obligated to collect or pay taxes, the taxes will be invoiced to You for payment in a timely manner, unless You provide HELLOBOOKED with a valid tax exemption certificate authorized by the appropriate taxing authority. If You are required by law to withhold any taxes from payments to be made to HELLOBOOKED, You must provide HELLOBOOKED with an official tax receipt or other appropriate documentation as We may so request to support such withholding.
Emergency Security Issue: If an emergency or security issue is identified by HELLOBOOKED, We reserve the right and authority to automatically suspend the offending use or other logistics that may be causing the emergency or security issues until such time as they may be remedied or resolved. Any suspension hereunder will be to the minimum extent and duration required for HELLOBOOKED to address the emergency or security issue. If We elect to suspend an End User Account or the Services for any reason without prior notice to You, at Customer’s request, We will provide You the reasons for the suspension as soon as is reasonably possible.
Data Transfer: As part of providing the Services, HELLOBOOKED may store, transfer and/or process Customer data in the normal course of operations. You consent to and authorize the storage, transfer and/or processing of Customer data by HELLOBOOKED.
Acceptable Use: Provided that You comply with the terms of this Agreement and our policies and procedures for the use of the Services, and You are not in default or breach, We will permit You to use the Services to store, retrieve and serve software applications, data and/or content owned, licensed or lawfully obtained by You. You acknowledge that neither HELLOBOOKED nor any of its employees, agents, vendors and representatives shall be held responsible or liable to You or to any third person or party in any manner or for any purpose hereunder, and You are solely responsible and shall be and remain liable for Your content or for any actions arising or resulting therefrom. At the discretion of HELLOBOOKED, We may elect to track information regarding the use of the Services by You. We will not sell, disclose or license the content owned or held by You, except as We may determine to be necessary or desirable to comply with the Agreement, or upon the request of any governmental or regulatory body, or by subpoenas or court orders, or for any other legal purposes. You are and shall remain responsible and liable for all applications running on and with traffic originating from the instances or activities You initiate as part of the Services. In the exercise of the Customer’s judgment, You should take such actions as You deem necessary or appropriate to protect the authentication keys and security credentials of the Customer. You are hereby advised that any actions taken by You or any third persons or parties using or employing authentications and/or credentials of the Customers shall be deemed to be actions taken by You for which You will remain accountable and liable.
Email Usage: All electronic communications must adhere to all applicable laws. Without limiting the foregoing, the following are strictly prohibited: Sending of Spam/Unsolicited email, including but not limited to:
- Pyramid schemes;
- Chain letters;
- Sending any mail in contravention of the CAN SPAM Act of 2003 or other applicable state or federal laws and regulations; and Forgery: Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.
Network: You may make network connections from the HELLOBOOKED Cloud to other servers only with the permission and authorization of the destination servers and networks. Examples of unacceptable network traffic include but are not limited to:
- Unauthorized probes and port scans for vulnerabilities;
- Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any systems;
- Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled;
- Unauthorized network monitoring or packet capture;
- Forged or non-standard protocol headers, such as altering source addresses, etc.;
- Flooding; Denial of Service (DoS) of any kind;
- You may not operate network services such as:
- Open proxies.
- Open mail relays.
- Open, recursive domain name servers.
Services and Applications. The servers for the Services are hosted in locations designated by HELLOBOOKED and are subject to all applicable federal, state and local laws. You are responsible for maintaining licenses and adhering to the license terms of any software You elect to run as part of the Services.
Termination/Renewal by Customer: Your service agreement will renew every six months for an additional term and successive 6 month terms thereafter. You may terminate this agreement on any renewal date by duly serving a notice to terminate within 30 days of the renewal date. You may elect to terminate this Agreement prior to the expiration of the term You selected (as such term or period may be more specifically set forth on the applicable schedule to this Agreement). All terminations are subject to the following:
- You shall provide HELLOBOOKED with at least thirty (30) days advance notice in writing of the election by You to terminate the Agreement (the “Termination Notice”).
- On the thirty-first (31st) day after HELLOBOOKED receives the Termination Notice, all Services being provided by HELLOBOOKED under this Agreement shall cease and be discontinued and HELLOBOOKED shall have no duty, responsibility or other obligation to provide or continue any of the Services. This date may be referred to as the effective termination date.
- On or before, but not later than, the thirty first (31st) day after HELLOBOOKED receives the Termination Notice, at your cost and expense, You will return all software, proprietary information and other property of HELLOBOOKED to the principal office of HELLOBOOKED, or as otherwise reasonably directed by HELLOBOOKED.
- HELLOBOOKED on the thirty-second (32nd) day from the date of the Termination Invoice, HELLOBOOKED will permanently delete all Customer data from its system without recourse or liability to You.
Termination or Suspension by HELLOBOOKED: We may elect to terminate this Agreement, suspend or discontinue the Service “For Cause”, as defined below. For cause, shall mean: (a) immediately if You attempt a denial of service attack or commit other acts that are detrimental or potentially damaging to the Services, including the A2C, or acts or omissions by You cause emergency or security issues; (b) You seek to hack or break any security mechanism; (c) We otherwise determine in our sole discretion that use of the Services by You poses a security or service risk that may subject HELLOBOOKED or any third party to liability, damages or danger; (d) You otherwise use the Services in a way that disrupts or threatens the Services; (e) You are in default of payment obligations to HELLOBOOKED; (f) We determine, in our sole discretion, there is evidence of fraud with respect to the account maintained for You; (g) We receive notice or We otherwise determine, in our sole discretion, that You may be using the Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (h) We determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason or subject to applicable law, upon liquidation, commencement of dissolution proceedings or disposal of assets of Customer, failure to continue the business of Customer, assignment for the benefit of creditors of Customer, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
If You are in breach or default, We will provide notice to You and a ten (10) day period to cure the event of breach or default, except for events where We reserved the right for immediate termination hereunder. If You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to Us is invalid or charges are refused for such payment mechanism, and You fail to cure such payment obligation default or correct such payment mechanism problem within such ten (10) day period, at the discretion of HELLOBOOKED, We may suspend Customer’s right and license to use the Services, or terminate this Agreement in its entirety, and all Services thereunder.
Effect of Suspension or Termination by HELLOBOOKED:
- Upon any suspension of Customer’s use of any Services, in whole or in part, for any reason, then: (a) all fees, costs, charges and expenses will continue to accrue for any Services that are still in use by You, notwithstanding the suspension (including continued storage of data on the Services during the period of suspension and Wide Area Network); (b) You remain liable for all fees, costs, charges, expenses, invoices and any other obligations You have incurred, or will incur, through the date of suspension or thereafter with respect to the Services; and (c) all of Customer’s rights with respect to the applicable Services shall be discontinued, suspended or terminated during the applicable period.
- Upon termination of this Agreement for any reason by HELLOBOOKED: (a) You remain liable for the payment of all fees, charges, expenses, invoices and any other obligations You have incurred through the date of termination or will be incurred after the date of termination with respect to the Services; (b) all of the rights under this Agreement for the Services shall immediately terminate; and (c) You shall immediately return, or if instructed by Us, destroy all HELLOBOOKED proprietary and confidential Information and any HELLOBOOKED Information then in possession of Customer, and You shall return all rented equipment, as more specifically provided for in this Agreement; (d) You shall pay HELLOBOOKED outstanding invoice(s) including the total amount on the termination invoice, plus any reasonable attorney fees, court costs and expenses of collection incurred by HELLOBOOKED.
Non-Solicitation: You agree during the term of this Agreement and for a period of three (3) years thereafter not to solicit or to hire, directly or indirectly, any employees or agents of HELLOBOOKED, or to engage or acquire the personal services of any HELLOBOOKED current or prior employees who were employed by HELLOBOOKED during the term of this Agreement, including contracted employees of HELLOBOOKED, without prior written consent of an officer of HelloBooked, which consent may be withheld for any or no reason. If You breach the provisions of this Section, HELLOBOOKED may assess as liquidated damages an amount equal to the greater of: (i) the total fees paid by You for the Services for the trailing twenty-four (24) month period immediately preceding the month when the breach was identified by HELLOBOOKED or (ii) the total amount of the base salary of the subject employees or individuals for which the breach relates, plus the costs of all medical, dental and other benefits paid or incurred by HELLOBOOKED for such employees or individuals. You agree that such amounts are a reasonable estimate of damages HELLOBOOKED will suffer as a result of a breach by You hereunder; and are to be assessed as liquidated damages and not as a penalty. HELLOBOOKED’s resort to liquidated damages does not preclude HELLOBOOKED’s right to other remedies, damages and choices.
Indemnification: You will defend, indemnify, and hold harmless HELLOBOOKED, its parent and holding companies, affiliates, subsidiaries and licensors, and any independent contractor engaged by HELLOBOOKED and each of their respective employees, officers, directors, agents and representatives (“Related Parties”) from and against any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third person or party claims, actions or proceedings concerning: (a) any Customer or end users’ use of the Services (including any activities under your HELLOBOOKED account and use by Customer’s employees and personnel); (b) any breach of this Agreement or violation of applicable law by You or any end user; (c) Customer’s content or the combination of Customer content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer’s content or by the use, development, design, production, advertising or marketing of Customer’s content; or (d) a dispute between You and any end user. If We or any Related Parties are obligated to respond to a third party subpoena or other compulsory legal order or process described above, You will also reimburse HELLOBOOKED or any Related Parties for reasonable attorneys’ fees and court costs, as well as for the time and materials for responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
Disclaimers: THE SERVICES ARE PROVIDED “AS IS.” WE AND OUR RELATED PARTIES (as defined above) MAKE NO REPRESENTATIONS, GUARANTEES OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES AND THE RENTAL EQUIPMENT OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICES, RENTED EQUIPMENT OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR RELATED PARTIES DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Limitation of Liability: HELLOBOOKED AND OUR RELATED PARTIES WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR RELATED PARTIES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMERS INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMERS USE OF OR ACCESS TO THE SERVICES OR THE RENTED EQUIPMENT, (II) THE DISCONTINUATION, SUSPENSION OR TERMINATION OF ANY OR ALL OF THE SERVICES, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLAS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES OR THE RENTED EQUIPMENT; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA. IN ANY CASE, THE AGGREGATE LIABILITY OF HELLOBOOKED AND OUR RELATED PARTIES UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAID UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 4 MONTHS PRECEDING THE CLAIM.
Using Microsoft Software: As part of the Services, You may be allowed to use certain software (included related documentation) developed and owned by Microsoft Corporation or its licensors. This software is neither sold nor distributed to You and You may use it solely as part of the Services. You may not transfer it outside the Services. Microsoft is not responsible for providing any support in connection with the Services. HELLOBOOKED may change the prices charged to Customer for such Microsoft Software Products on thirty (30) days prior written notice due to increases in the prices charged by vendor. With reference to Microsoft Software Products, Customer hereby agrees to comply with all terms and conditions set forth in the “Customer License – Terms Notice Regarding Use of Microsoft Software Products” as of the date hereof with respect to such Microsoft Software Products as found at http://www.microsoft.com/licensing/, and to otherwise cooperate with HELLOBOOKED to use the Microsoft Software Products only as authorized by Microsoft. Customer may request a copy of the Microsoft terms from HELLOBOOKED at any time. Customer acknowledges that the following detail may change based on changes to the services solution or unidentified requirements associated with custom solutions. Customer shall be compliant with Microsoft’s licensing terms and shall solely assume all cost associated with out of compliance penalties if incurred.
Severability: If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
Governing Law: This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of New York and shall be adjudicated in the County of Erie in the State of New York.
A2C use Restrictions: You may use the Service in any manner only as expressly permitted by this Agreement. You may not attempt to (a) modify, alter, tamper with, share content, resell or otherwise create derivative works of the Service; (b) reverse engineer; (c) access or use the Service in a way intended to avoid incurring fees. The use granted to you is conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with this Agreement.
No License: Nothing contained herein shall be construed as granting or implying any license or other rights to Customer with regard to the patents, trademarks, copyrights and trade secrets of HELLOBOOKED.
Interpretation: Any reference to Customer in this Agreement shall mean and include its parent and holding companies, affiliates, subsidiaries, predecessors, successors and assigns, and its directors, officers, employees and representatives.
Assignability: HELLOBOOKED may assign any of its rights, duties or obligations hereunder, in whole or in part, without the prior written consent of Customer. Customer may not assign this agreement without the consent of HELLOBOOKED.
Entire Agreement: This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and shall be deemed to supersede all prior and contemporaneous agreements, representations, and understandings, whether written or oral, all of which shall be deemed to have been merged into this Agreement.