Terms of Service
NOTICE: These terms and conditions constitute a binding agreement (the “Agreement”) between you and any entity or organization you represent (individually and collectively, “you,” “your” or the “Client”) and Mhoodle LLC, a Georgia limited liability company (the “Contractor”) effective as of the date of first purchase of services by the Client. Each of the Client and the Contractor are referred to herein individually as a “Party” and collectively as the “Parties.”
Last updated: 17 May 2019
By affirmatively accepting the terms and conditions at the time of purchase and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Client accepts and agrees to the following
1. SERVICES. The Contractor shall perform the services purchased by the Client with reasonable care and skill and otherwise in the manner customarily performed by service providers in the virtual service industry (individually and collectively, the “Services”). The Contractor may freely delegate and subcontract any or all of the Services to the Contractor’s personnel, including its concierge virtual support (“VSs” or “virtual supports”), in the Contractor’s sole discretion.
2. TERM. The term of this Agreement shall begin on the date of purchase and shall continue until terminated by either Party (the “Term”). The Client is required to give at least thirty (30) days’ prior written notice to the Contractor prior to any termination. The Contractor may terminate this Agreement at any time and for any or no reason upon written notice to the Client.
3. TERMS OF PAYMENT.
1. Timing. The Client shall pay the Contractor in advance of delivery of any Services according to the plan subscribed to by the Client (each, a “Plan”) and the terms of such Plan shall be incorporated herein by reference and otherwise made a part of this Agreement. All Plan pricing is exclusive of any additional fees, assessments, levies, governmental charges and other taxes such as sales tax or Value Added Tax (VAT) if applicable. Plans will renew automatically each month during the Term on each monthly anniversary of your subscription date unless terminated by the Client at least thirty (30) days prior to the renewal date (or unless Services are suspended or terminated by us as provided herein). On renewal, your method of payment will be charged in advance based on your selected Plan plus any hours used in excess of the selected Plan level. Interest at the rate of one and one-half percent (1.5%) per month shall apply to any overdue amounts, including reimbursable expenses. Unused Plan hours are rolled over to the following month for a period of up to 90 days. Regardless of currency, all invoices and payable charges for the Services originate from the United States and the Contractor is resident in the United States for purposes of this Agreement, including for tax purposes. If your method of payment is declined, the Services will be suspended until payment is made.
2. Expenses. The Contractor shall invoice the Client and the Client shall timely reimburse the Contractor for all reasonable and pre-approved out-of-pocket expenses that are incurred in connection with the performance of the Services.
3. Travel. The Contractor’s VSs are assigned to work on a virtual basis only. Requests for ‘in person’ work may be possible in exceptional circumstances but cannot be guaranteed. If granted in the Contractor’s sole discretion, all hours, including travel time to and from the VSs’ home and the work location, as well as hours spent on the job, are billable at the Contractor’s then-standard rates with no exceptions. Please contact your account manager to discuss your specific requirements.
4. Refunds. Please contact your account manager to discuss any such instances in which you are unsatisfied with the work performed by your assigned virtual support. Refunds will not be given for used or unused hours on prepaid Plans.
4. CLIENT RESPONSIBILITY AND INDEMNITY.
1. Supervision of VSs. Your virtual support acts under your direction. If you utilize any personnel, including an assistant, to make any decisions on your behalf, about the way in which any work/ actions/ tasks/ strategies or other business related functions are performed or otherwise, you do so on the basis and the agreement that such personnel is acting on your behalf with full authority to do so and is under your direction and supervision at all times. Any perceived mistreatment of any virtual supports may result in immediate termination of this Agreement by the Contractor.
2. Passwords. Should you decide to give your virtual support access to your business and/or personal accounts, you do so entirely at your own risk, and you are fully responsible for ensuring the security of your data. You will be solely responsible for any damage, loss, liability or violations that might occur as a result of such access.
3. Copyright and Trademark. Should you request that your virtual support source content or images for use on your website or in marketing or other materials relating to your business, you do so at your own risk, and you are solely responsible for supervising his/her work, and ensuring that all appropriate permissions and licenses to use such content or images have been obtained. Should you request your virtual support to carry out any of these activities without the necessary permissions, you will be solely responsible for any violations of copyright law, trademark or service mark law and any other intellectual property law and may be subject to legal sanctions, including fines.
4. Nature of Services. You may not use your virtual assistant or any of the Services to engage in any illegal, tortious, negligent, wrongful or immoral activity. If the Contractor becomes aware of any such activity on the part of the Client, whether related to the Services or otherwise, the Contractor reserves the right to terminate this Agreement and report such activity to the appropriate authority, all in the Contractor’s sole discretion.
5. Indemnity. You hereby agree to release, indemnify, defend and hold harmless both your virtual assistant and the Contractor and its members, managers, officers, employees, agents and successors and assigns from any judgment, expense, cost, loss, liability, claim or damage, including court costs and attorneys’ fees, resulting from i) your actions, decisions, directions and/or supervision, ii) the violation of any third-party’s intellectual property rights arising in connection with the provision of the Services where such violation arises from the Contractor’s and/or your virtual assistant’s reliance on, or use of, tools, instructions, specifications, or other materials provided by you or where you or any third-party modifies, adds to, or combines with any technology or data, any Contractor intellectual property, or iii) for any breach by you of this Agreement or any applicable law, unless, but only to the extent, caused by the gross negligence or willful misconduct of the Contractor or your virtual support. You further waive any claim that the Contractor or any of the VSs are acting in a professional, advisory, or consultative capacity.
6. Consumer Rights and Cancellation. If you are purchasing the Services wholly or mainly for your personal use (and not in relation to a business), this Agreement is not intended to vary your rights under any applicable consumer protection law.
5. CONFIDENTIALITY. Each Party hereby acknowledges that during the Term, each Party may, from time to time, be supplied or work with certain information of the other Party, all of which is confidential and of value to such other Party (the “Confidential Information”). Each Party hereby agrees to the following in connection with the other Party’s Confidential Information:
1. Neither Party will disseminate or disclose to any third party, or use for such Party’s own benefit or for the benefit of any third party, any Confidential Information of the other Party, however acquired during or by reason of this Agreement, such Confidential Information being deemed to include, without limitation, information in any format pertaining to copyrights, trademarks, trade names, service marks, trade dress, domain names, uniform resource locators (URLs), websites, advertising and marketing plans, media planning/placement, strategic briefs, sales plans, ideas, concepts, new products, improvements, inventions, proposed launches, discontinuance of existing products, product and consumer testing data, sales and market research; technology research & development, corporate strategic plans, budgets, profit & loss data, raw material costs, identity of suppliers, customer lists, customer information, formulae, processes, methods, and associations with other organizations.
2. Each Party will treat Confidential Information received from the other Party with the same degree of care and security as such Party would use with respect to such Party’s own Confidential Information, but not less than a reasonable degree of care.
3. Neither Party will use the other Party’s Confidential Information for any purpose other than as it relates to the Services. If either Party is in any doubt as to whether a proposed use of the Confidential Information is appropriate, such Party will immediately (and before using the Confidential Information) seek written clarification from the other Party and not use such Confidential Information until authorized by the disclosing Party.
4. Neither Party will copy, reproduce or store the other Party’s Confidential Information without the other Party’s prior written consent whether electronically, on any external drive (including a USB thumb drive) or in the “cloud.” Each Party will secure physical and electronic access to the other Party’s Confidential Information.
5. Neither Party will assert any right, title or property interest in or to the Confidential Information of the other Party.
6. Upon the expiration or other termination of the Agreement, and at such other times as either Party may request, each Party will return to the other Party all materials containing any Confidential Information of the other Party in such Party’s possession or control (the “CI Materials”). In addition, upon the expiration or other termination of the Agreement, and at such other times as either Party may request, each Party will deliver to the other Party an executed certificate confirming that such Party has promptly returned to the other Party or shredded or destroyed all CI Materials of the other Party.
7. Confidential Information will not include, and the other Party shall have no confidentiality obligation whatsoever under this Agreement with respect to, i) information that is or becomes (through no breach of this Agreement by the other Party) generally available to the public, ii) was in the other Party’s possession or known by the other Party prior to receipt from the disclosing Party , iii) is disclosed to the other Party by a third-party having no obligation of confidentiality to the disclosing Party relating to such Confidential Information, or iv) is independently developed by the other Party.
8. Either Party may make disclosures required by valid order of any court or other authorized governmental entity, provided such Party promptly notifies the other Party and provides reasonable cooperation, at the other Party’s expense, with the other Party’s efforts, if any, to limit disclosure and to obtain confidential treatment or a protective order.
9. Each Party agrees that such Party’s obligations under this section 5 shall continue beyond the expiration or other termination of the Agreement and shall be binding upon such Party’s legal representatives, heirs, successors, assigns, subsidiaries and affiliates and shall inure to the benefit of the other Party, the other Party’s subsidiaries and affiliates and their legal representatives, heirs, successors and assigns.
6. NON-SOLICITATION; LIQUIDATED DAMAGES. The Client and the Client’s successors, assigns and affiliates shall not, directly or indirectly, on behalf of him/her/itself or otherwise, solicit, recruit, induce, attempt to recruit or induce, or encourage any of the VSs or any of the Contractor’s other employees and contractors to terminate their relationship with the Contractor. Where the Client is an individual, the term “Client” for purposes of this section 6 includes any business activities carried on by the Client (whether conducted by the Client as a sole proprietor, partnership, LLC or other incorporated form). This prohibition applies during the Term and for a period of two (2) years immediately thereafter. The Client agrees that if a court of competent jurisdiction determines the Client has breached, or attempted or threatened to breach, any of its non-solicitation obligations in this section 6, the Contractor will be entitled to obtain appropriate injunctive relief and other available measures restraining further, attempted or threatened breaches of such obligations. Further, the Client agrees that if the Client breaches this section 6, the Contractor will incur substantial economic damages and losses in amounts which are difficult or impossible to compute and ascertain with certainty as a basis for recovery by the Contractor of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such breach, the Client agrees that liquidated damages may be assessed and recovered by the Contractor as against the Client in the event of such breach and without the Contractor being required to present any evidence of the amount or character of actual damages sustained by reason thereof; and the Client shall be liable to the Contractor for payment of liquidated damages in the amount of US$45,000.00 with respect to each of the Contractor’s employees or contractors involved in any breach of this section 6 by the Client,. Such liquidated damages represent estimated actual damages to the Contractor arising from having to replace the VSs or other staff so recruited, and are not a penalty. The Client shall pay the liquidated damages to the Contractor within five (5) days of notice from the Contractor of the resignation of any employee or contractor and whether or not the Contractor has exercised its right to terminate the Agreement. This section 6 will survive the termination of the Agreement.
7. WARRANTIES AND REPRESENTATIONS. Each Party hereby warrants and represents that such Party will abide by all applicable laws and regulations during the Term, and is free to enter into this Agreement, and that this Agreement does not violate the terms of any agreement between such Party and any third party or the intellectual property rights of any third party. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CONTRACTOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES AND ANY INTELLECTUAL PROPERTY INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NO REPRESENTATIVE OF THE CONTRACTOR IS AUTHORIZED TO GIVE ANY ADDITIONAL WARRANTY.
8. LIMITATION OF LIABILITY.
1. In the event of a breach of this Agreement by the Contractor, the remedies of the Client will be limited to actual damages and the Contractor’s liability for damages hereunder shall not exceed the amount paid by the Client for the Services during the twelve month period immediately prior to the date in which those actual damages were incurred.
2. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL EITHER THE CLIENT OR CONTRACTOR (OR THEIR RESPECTIVE AFFILIATES, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. Neither Party shall be liable for delays caused by fire, accident, labor dispute, war, insurrection, riot, act of government, “act of God,” or any other cause reasonably beyond its control (including delays caused by the Client). Nonpayment of any amounts hereunder shall not be excused by this section.
9. INDEPENDENT CONTRACTOR. This Agreement shall not render either Party an employee, partner, agent of, or joint venture with the other Party for any purpose. The Contractor is and will remain an independent contractor to the Client. The Client shall not be responsible for withholding taxes with respect to the Contractor’s compensation hereunder. The Contractor shall have no claim against the Client hereunder or otherwise (whether for itself or any of its VSs) for vacation pay, sick leave, retirement benefits, social security, workers compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
10. CHOICE OF LAW; ARBITRATION. This Agreement is being made and entered into by the Parties in the United States, State of Georgia. Accordingly, the laws of the State of Georgia shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the Parties hereunder. Any dispute, controversy or claim arising out of the terms of this Agreement or its interpretation shall be settled exclusively by private arbitration , but nonetheless conducted in accordance with the AAA's commercial arbitration rules then in effect. The number of arbitrators shall be one, the identity of the arbitrator being mutually agreed to by the Parties. If the Parties cannot so agree on an arbitrator, each Party shall choose a third party with relevant arbitration experience and those individuals shall mutually decide on the arbitrator. The place of arbitration shall be at a mutually-agreed upon location in Lithonia, Georgia, or as determined by the arbitrator if none is agreed to. The language used in the proceedings shall be English. The arbitration award shall be binding, and judgement upon the award may be entered in any court having competent jurisdiction thereof. The Contractor or its affiliates may then seek injunctive or other appropriate relief in any state or federal court in the State of Georgia, and you waive any objection to exclusive jurisdiction and venue in such courts. CLIENT ACKNOWLEDGES THAT IT IS WAIVING ITS RIGHT TO HAVE ITS DISPUTES HEARD IN A COURT OF LAW AND TO HAVE A TRIAL BY JURY IF THAT WOULD OTHERWISE HAVE BEEN AVAILABLE. In the event that any dispute between the Parties hereto should result in litigation, mediation, arbitration or any other legal or resolution proceedings, the prevailing Party in that dispute shall be entitled to recover from the other Party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without limitation, reasonable attorneys’ fees and expenses.
11. NOTICES. Any and all notices, demands, or other communications required or desired to be given hereunder by either Party shall be in writing and shall be validly given or made to the other Party if personally served (by hand or by nationally-recognized overnight courier), or if deposited in the mail, certified or registered, postage prepaid, return receipt requested and notices may also be given by e-mail or facsimile transmission, provided, however, that receipt of any such e-mail or facsimile transmission is established by a read receipt or answerback confirmation. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five (5) days after deposit thereof in the mail addressed to the Party to whom such notice, demand or other communication is to be given. If such notice is given by e-mail or facsimile transmission, notice shall be deemed given on the date such e-mail or facsimile was sent provided that receipt of such e-mail or facsimile transmission is sufficiently proven. Either Party may change its address for purposes of this paragraph by written notice given in the manner provided above.
12. ENTIRE AGREEMENT. Any titles or headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof. This Agreement constitutes the entire understanding and agreement of the Parties, and any and all prior agreements, understandings, and representations, written, oral or otherwise, are hereby terminated and canceled in their entirety and are of no further force and effect. The Client may not assign its rights or delegate its obligations hereunder without the prior written consent of the Contractor, and any attempted assignment without such consent shall be void. The Contractor may freely subcontract its obligations hereunder to its employees and independent contractors. The Parties acknowledge that they have thoroughly reviewed this Agreement and bargained over its terms. Accordingly, neither Party shall be considered responsible for the preparation of this Agreement, which shall be deemed to have been prepared jointly by both Parties. The provisions of the Agreement allocate the risks between the Parties. The terms and conditions included herein reflect this allocation of risk, and each provision herein is part of the bargained-for consideration of this Agreement.
13. UNENFORCEABILITY OF PROVISIONS.
If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect. NOTICE TO RESIDENTS OF NEW JERSEY, USA: Your rights are protected under the
Truth-in-Consumer Contract, Warranty and Notice Act and New Jersey law generally. The following provisions in this Agreement are different than the rights you might enjoy under the laws of New Jersey or the federal law of the United States: the exculpation language in Section 4(5) and the limitation of liability language in Section 8. Your rights regarding these specific provisions will be governed by New Jersey law. In the event of any conflict between this
Agreement and New Jersey law, New Jersey law will govern. You are also advised that Section 10 of this Agreement includes an arbitration clause and the arbitration will occur in Lithonia, Georgia.
14. CHANGES TO THESE TERMS AND CONDITIONS. This Agreement may only be modified or supplemented by the Contractor, and we reserve our right to amend or supplement this Agreement at any time, at our discretion. When we change it or supplement it, we will do our best to provide you notice and point out what is different or new. We may also post rules and guidelines applicable to specific products or services to the various areas of our website that describe them. You are responsible for reviewing this Agreement and our website for any rules or guidelines applicable to the Services you are purchasing or applicable to specific areas of our website and any amendments or supplements to this Agreement, changes in our rates or changes to the Services (collectively, “Changes”). Your continued use of the Services after the Contractor’s posting of any Changes constitutes your acceptance and agreement with the Changes and all Changes shall supersede any previous agreement between you and the Contractor. You are required to continually review these terms and conditions, and are at all times hereby deemed to have done so, to ensure you know of any Changes.