Terms of Service

AssistPro®

TERMS OF SERVICE

1. CONFIDENTIALITY.  During the Term of this Agreement, a Party may disclose (“Disclosing Party”) to a receiving party (“Receiving Party”) information of a confidential nature (“Confidential Information”), including, but not limited to, customer lists, contacts, financial data, sales data, supply sources, business opportunities for new or developing business, and plans and models. Receiving Party agrees not to disclose or use, except in connection with the Services to be provided under this Agreement or as otherwise authorized by the Disclosing Party, a Disclosing Party’s Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public other than as a result of Receiving Party’s material breach of this Agreement; (b) is obtained by Receiving Party on a non-confidential basis from a third party that, to Receiving Party’s knowledge, was not contractually restricted from disclosing such information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Disclosing Party’s Confidential Information. Client agrees that AssistPro’s proprietary matching and onboarding process are Confidential Information belonging to AssistPro, in addition to other of its Confidential Information. These confidentiality obligations apply during the Term of the Agreement and for a period of 5 years thereafter, except as to any Confidential Information qualifying as trade secrets, which shall survive beyond such time and for as long as trade secret protection applies under applicable law. Upon the termination of this Agreement or at any time before such termination, the Receiving Party shall, upon request of the Disclosing Party, return to Disclosing Party all of Disclosing Party’s Confidential Information as well as any other materials that involve or reference such Confidential Information. AssistPro agrees to have any Virtual Assistant matched with Client execute a written agreement containing obligations of confidentiality and non-use consistent with the provisions of this section prior to Virtual Assistant performing any services for Client.

2. RECORDS.  Client shall be ultimately responsible for any maintenance and custody of Client documents and information. Client consents to AssistPro and its Virtual Assistants’ use of email, shared drives, cloud-based services, and other collaborative tools to work with Client’s documents and information. Client must specify to AssistPro in writing any requirements concerning the manner in which AssistPro or its Virtual Assistants should maintain or preserve Client’s documents and information, and AssistPro reserves the right to terminate this Agreement if such requirements are not compatible with AssistPro’s business model.

3. NON-CIRCUMVENTION; NON-SOLICITATION.  During the Term of this Agreement, Client agrees that it shall only retain, engage, and pay AssistPro, and not any Virtual Assistant first introduced to Client by AssistPro directly, for the Services and for any services performed for Client by any Virtual Assistant that are similar to or competitive with the Services. Furthermore, during the Term of this Agreement and for a period of 1 year after its expiration or termination, Client agrees that it will not solicit, employ, or retain, directly or indirectly, as an employee, independent contractor, or in any other capacity, any Virtual Assistant that AssistPro first identified to Client or was otherwise first made known to Client in connection with  this Agreement, even if Client did not ultimately select that Virtual Assistant or select any Virtual Assistant in connection with the performance of Services. Client agrees that these restrictions are reasonable and necessary to protect AssistPro and its business.

Notwithstanding the foregoing, if Client is interested in employing or otherwise engaging a Virtual Assistant who is matched with Client to perform services for Client directly, Client must make a written request to AssistPro. Within a reasonable amount of time upon receipt of such a request, AssistPro will release Client from the restrictions set forth in this non-circumvention and non-solicitation provision only as it relates to that specific Virtual Assistant (the “Released Virtual Assistant”), and will release the Released Virtual Assistant from any similar provisions restricting the Released Virtual Assistant from accepting employment or other engagement by the Client, but only as to permit that Released Virtual Assistant to work directly with or for Client, provided, however, that the following first occurs:

    1. Client must be in full compliance with this Agreement and have fully paid all amounts due and incurred to date;
    2. the Released Virtual Assistant must be in full compliance with the Released Virtual Assistant’s agreement(s) with AssistPro and the Released Virtual Assistant must provide written consent that he or she desires to work directly with Client;
    3. Client and the Released Virtual Assistant, separately, but in each case mutually with AssistPro, must agree to terminate their respective contracts with AssistPro upon a mutually agreed upon date;
    4. Despite Client and the Released Virtual Assistant’s respective contracts with AssistPro being terminated upon a mutually agreed upon date, and despite AssistPro releasing Client and the Released Virtual Assistant from certain obligations as set forth herein, all Parties shall continue to remain bound by any other restrictions intended to survive termination as set forth in their respective agreements including, but not limited to, such restrictions and obligations concerning confidentiality, non-disclosure, non-interference, non-circumvention, and non-solicitation, which are not expressly released by AssistPro in writing;
    5. Client pays AssistPro a reimbursement amount (“Reimbursement”) according to the schedule set forth below:
      1. If the Released Virtual Assistant is to be directly employed or engaged by Client during the first year of the Term of this Agreement, Client shall pay AssistPro $12,000.00;
      2. If the Released Virtual Assistant is to be directly employed or engaged by Client during the second year of the Term of this Agreement, Client shall pay AssistPro $10,000.00; and
      3. If the Released Virtual Assistant is to be directly employed or engaged by Client during the third year of the Term of this Agreement or thereafter, Client shall pay AssistPro $7,500.00.

The Parties agree that AssistPro would suffer damages from the loss of services of its Released Virtual Assistant, the investment of time and resources into the replacement of the Released Virtual Assistant, and the use of its intellectual property such that damages are difficult or impossible to estimate accurately; as such, the Parties agree that the Reimbursement as set forth above is a reasonable and fair estimate to contribute toward defraying a portion of AssistPro’s damages and shall not be considered a penalty. However, in the event of Client’s breach of the provisions of this Agreement or failure to abide by the conditions above, the Parties agree the Reimbursement shall not be considered a limitation on AssistPro’s claim for damages or recovery.

4. RELATIONSHIP OF PARTIES.  It is understood by the Parties that AssistPro and its Virtual Assistants are independent contractors with respect to the Client and are not employees of the Client. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Client will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of AssistPro or any Virtual Assistant. AssistPro agrees to indemnify and hold harmless Client and all of its respective directors, officers, employees, and agents (collectively and individually, “Indemnitee(s)”) from and against any and all loss, cost, damage, and expense of every kind and description, including, but not limited to, attorneys’ fees and litigation expenses, that may be incurred by any Indemnitee as the result of any Claims. “Claims” shall mean any lawsuits, administrative claims, or regulatory actions that are related to or arise in any way from any finding or allegation that any AssistPro employees are employees (or joint employees) of Client for any purpose or under any applicable statutory or regulatory scheme or legal standard, including, for example, state workers’ compensation or unemployment laws, the Patient Protection and Affordable Care Act (or any successor or other law relating to employer-provided health benefits), the Employee Retirement Income Security Act, any other employee benefit or healthcare law (including those subsequently enacted) that relates to benefits provided by employers to employees, the National Labor Relations Act, the Fair Labor Standards Act, or any vicarious liability or respondeat superior doctrine. Notwithstanding the foregoing, the parties agree that AssistPro’s indemnification obligations as set forth exclusively in this Section 6 are subject to the aggregate liability cap set forth in Section 7 below.

5. WARRANTY AND REMEDY:   AssistPro warrants that Client will be reasonably satisfied with Services performed and that such Services will be performed in a professionally competent manner consistent with standards in the industry. If Client believes that AssistPro has not fulfilled this warranty, Client must notify AssistPro in writing no later than 15 days after the conclusion of the month in which the allegedly deficient Services were performed. AssistPro shall take reasonable steps to correct the issues raised by Client, which may, at AssistPro’s discretion, include AssistPro working with Client to identify another Virtual Assistant to assist in providing the Services. If AssistPro cannot resolve the Client’s concerns within 15 days, AssistPro agrees to refund the most recent Monthly Base Fee paid by Client and, at either Party’s election, this Agreement may be terminated. The Parties agree that AssistPro will owe no other amounts to Client. If Client does not notify AssistPro of any objections to the Services within 15 days after the conclusion of the month in which the Services were performed, Client is deemed to have agreed that the Services for that month were satisfactorily performed.
THIS WARRANTY AND REMEDY SETS OUT THE FULL EXTENT OF ASSISTPRO’S OBLIGATIONS TO CLIENT, AND EXCEPT FOR THIS WARRANTY AND REMEDY, ALL SERVICES ARE PROVIDED “AS IS” WITHOUT ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
EXCEPT FOR ITS: (i) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (ii) INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 16 (WHICH THE PARTIES AGREE DOES NOT INCLUDE ASSISTPRO’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 6, SUCH OBLIGATION NOT BEING EXLUDED FROM THIS AGGREGATE LIABILITY CAP), OR (iii) BREACH OF THE CONFIDENTIALITY OR NON-CIRCUMVENTION; NON-SOLICITATION PROVISIONS, NEITHER PARTY’S AGGREGATE LIABILITY IN RESPECT OF ANY CLAIMS ARISING OUT OF THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL, IN NO CIRCUMSTANCES, EXCEED THE AMOUNT CLIENT PAID TO ASSISTPRO IN THE TWELVE MONTHS PRIOR TO CLIENT’S NOTIFICATION TO ASSISTPRO OF THE ALLEGED CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, ENHANCED, OR PUNITIVE DAMAGES, LOSS OF BUSINESS OR BUSINESS INTERRUPTION THAT MAY RESULT, IN WHOLE OR IN PART, FROM THE SERVICES, EVEN IF THAT PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. FORCE MAJEURE.  The Parties agree neither Party will be liable for loss, damage or delay due to circumstances beyond that Party’s reasonable control. Such circumstances may include (but are not limited to) acts of God, public unrest, power outages, and inability to contact Client.

7. SEVERABILITY.  If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect. The Parties in no way intend to include a provision that contravenes public policy or applicable law. Therefore, if any provision of this Agreement is unlawful, against public policy, or otherwise declared void or unenforceable, such provision shall be deemed excluded from this Agreement, which shall in all other respects remain in effect.

8. GOVERNING LAW.  This Agreement, for all purposes, shall be governed by and construed and enforced in accordance with the laws of South Carolina without regard to conflicts of law principles, and without giving effect to any provision (whether of the State of South Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of South Carolina other than non-waivable provisions of U.S. federal law.

9. NO IMPLIED ASSIGNMENTS OR LICENSES.  Nothing in this Agreement is to be construed as an assignment or grant of any right, title or interest in any trademark, copyright, design or trade dress, patent right, or other intellectual or industrial property right.

10 AUTHORITY. Each Party warrants to the other Party that:

  1. it has the requisite corporate authority to enter into and perform this Agreement;
  2. its execution, delivery, and performance of this Agreement have been duly authorized by all requisite corporate action on its behalf; and
  3. this Agreement is enforceable against it.

11. ASSIGNMENT AND DELEGATION.  Neither Party shall transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party.

12. NOTICES.  All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and (a) if served by personal delivery upon the Party for whom it is intended, on the day so delivered; (b) if mailed by registered or certified mail, return receipt requested, on the third business day following such mailing; or (c) if sent by electronic facsimile transmission, on the day the facsimile is transmitted electronically, or if not a business day, the next succeeding business day, to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:

If to Client, to:

 

If to AssistPro, to:

P.O. Box 886
Baldwin City, KS 66006

 

  1. Any Party may change its address for service from time to time by notice given in accordance.

13. INDEMNIFICATION. Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party (the “Indemnified Party”), and that Indemnified Party’s affiliates and their respective owners, officers, directors, employees, agents, and representatives, and the successors and assigns of any of them, from and against, and reimburse them for, all damages, losses, costs, expenses, and liabilities (including, without limitation, interest, penalties, court costs, reasonable attorneys’ fees and expenses, and the cost of enforcing this indemnity provision), arising out of or resulting from any claim brought against such Indemnified Party by a third party, regarding (a) Indemnifying Party’s performance, purported performance or nonperformance of this Agreement (whether arising out of Indemnifying Party’s negligence, intentional misconduct, or otherwise), including any breach of any representation, warranty, covenant, obligation, or other agreement expressly contained in this Agreement; provided, however, that Indemnifying Party will not indemnify the Indemnified Party to the extent that such third-party claim directly arises out of or results from Indemnified Party’s performance, purported performance or nonperformance of this Agreement (whether arising out of Indemnified Party’s negligence, intentional misconduct, or otherwise); (b) any failure of Indemnifying Party to comply with any applicable laws, statutes, ordinances or regulations; and/or (c) any negligent act or omission of Indemnifying Party or its employees, agents, contractors, or invitees. This indemnification is applicable only to claims brought by third parties against the Indemnified Party, including but not limited to any claims by employees of Client or AssistPro made against the other party. For the purposes of this Section 16, the Parties agree that under no circumstances shall AssistPro be required to indemnify or otherwise defend or hold harmless Client from any claims brought against Client by or on behalf of Client’s own employees (whether considered joint employees of AssistPro and Client or otherwise) or contractors (or derivatives thereto) nor shall Client be required to indemnify or otherwise hold harmless AssistPro from any claims brought against AssistPro by or on behalf of AssistPro’s own employees (whether considered joint employees of AssistPro and Client or otherwise) or contractors (or derivatives thereto). The Parties agree the Indemnified Party shall cooperate in the defense of any claim for which indemnification is available and shall furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may reasonably be requested by Indemnifying Party. Each Party’s obligations of indemnification under this Agreement shall survive the termination of this Agreement or any termination of any Party’s respective rights and obligations hereunder.

14. COOPERATION.  The Parties will use good faith efforts to cooperate with each other in all matters relating to the provision and receipt of the Services. Such good faith cooperation will include providing electronic access to systems used in connection with the Services and using commercially reasonable efforts to obtain all consents, licenses, sublicenses, signatures, or approvals necessary to permit each Party to perform its obligations. The Parties will cooperate with each other in making such information available as needed in the event of any and all external audits. If this Agreement is terminated in whole or in part, the Parties will cooperate with each other in all reasonable respects in order to effect an efficient transition and to minimize the disruption to the business of both Parties, including the assignment or transfer of the rights and obligations under any contracts.

15. OWNERSHIP.  The results of the Services and all information, material, and documentation that was created, prepared, or gathered by AssistPro and/or its Virtual Assistants for Client (collectively, the “Deliverables”), including any and all intellectual property rights therein or derived therefrom, shall be the exclusive property of Client. Upon completion of the Services, or upon request by Client at any time, AssistPro and/or its Virtual Assistants shall promptly deliver all such Deliverables (and all copies thereof) to Client. The parties expressly agree that all Deliverables are, and shall be considered as, “works made for hire” under the laws of the United States. To the extent the Deliverables do not qualify as “works made for hire,” or where Client deems necessary for any other reason, AssistPro and/or its Virtual Assistants hereby assigns to Client all such right, title, and interest in such Deliverables. AssistPro and/or its Virtual Assistants agree to provide all reasonable assistance, including executing all documents of assignment and other documents, which Client may deem necessary or desirable to perfect its ownership interest in such Deliverables, including trademark, patent, or copyright applications in such Deliverables.

16. INSURANCE.  AssistPro shall obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability, and other types of insurance necessary to protect its interests from such claims, liabilities, or damages which may arise out of the performance of its obligations under this Agreement, as well as those imposed by applicable law.

17. TAXES.  AssistPro shall have full and exclusive liability for, and shall pay and hold Client harmless from, any and all taxes incurred by AssistPro in connection with the Services or this Agreement.

18. USE OF CLIENT’S NAME.  AssistPro shall not publicize its business relationship with Client or use any of Client’s trademarks, tradenames or logos for any reason, including in any client list, press release, brochure, advertisement or the like.

19. ENTIRE AGREEMENT.  This Agreement together with any attachments hereto constitute the sole agreement between the Parties with respect to the entire subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

20. PARTIES IN INTEREST.  This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity other than Client or AssistPro or their respective successors or permitted assigns any rights or remedies under or by reason of this Agreement.

21. AMENDMENT; WAIVER.  Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Client and AssistPro, or in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.

22. SURVIVAL. The respective rights and obligations of the Parties hereunder shall survive any termination or the expiration of this Agreement, including, but not limited to, the Client’s obligations under Sections 2, 3, 5, and 16, to the extent necessary to the intended preservation of such rights and obligations.

23. HEADINGS.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement

24. COUNTERPARTS.  This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. A signed copy of this Agreement transmitted by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement for all purposes.