Terms of Payment
Confidentiality and Non-Disclosure
Non-Solicitation; Liquidation damages
Warranties and Representations
Limitation and Liability
Choice of Law; Arbitration
Unenforceability of provision
Changes of this Terms and Conditions
Terms and Conditions
Welcome and thank you for choosing SparkSource. Please take the time to read these terms and conditions in its entirety.
In this Agreement, the party who is contracting to receive the services shall be referred to as the “Client”, and the party who will be providing the services, SparkSource, shall be referred to as the “Contractor”.
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:
The Contractor shall perform the Administrative 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 Client may freely delegate any of the Services to the Contractor’s virtual assistant staff (“VAs” or “virtual assistants”) in the Contractor’s sole discretion.
The term of this Agreement shall begin on the date of purchase and shall continue on a month-to-month basis unless terminated by either Party upon one (1) business days’ prior written notice to the other Party (the “Term”).
3. Terms of Payment
- Timing. The Client shall pay the Contractor in advance of delivery of work according to the virtual assistant plan subscribed to and all plan pricing is exclusive of 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 specified by the Client at least 24 hours prior to the renewal date (or unless Services are suspended or terminated by us as provided herein). On renewal, your credit card will be charged in advance based on your selected plan plus any hours used in excess of the selected plan level. Unused hours are not rolled over to the following month. 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 tax purposes. If your credit card is declined, the Services will be suspended until payment is made for the upcoming month and past overages due.
- Expenses. The Contractor shall bill and the Client shall reimburse the Contractor for all reasonable and pre-approved out-of-pocket expenses that are incurred in connection with the performance of the Services.
- Travel. The Contractor’s VAs are assigned to work on a virtual basis only.
- Refunds. In the unlikely event that you are unsatisfied with the work performed by your assigned virtual assistant, you will not be charged for the hours used in the current billing cycle. Please contact your account manager to discuss any such instances.
- Overages. Any overages in time shall be billed to the Client at $15 per hour.
4. Client Responsibility and Indemnity
- Supervision of VAs. Your virtual assistant acts under your direction. If you require your assistant to make decisions on your behalf about the way in which any work/ actions/ tasks/ strategies or other business-related functions are performed, you do so on the basis that the assistant is acting on your behalf and is under your supervision at all times.
- Passwords. Should you decide to give your virtual assistant 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 loss, liability or violations that might occur as a result of such access.
- Copyright. Copyright is the legal protection extended to authors or owners of original published and unpublished artistic and intellectual works. Should you request that your virtual assistant 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 to use such content or images have been obtained. Should you request your virtual assistant to carry out any of these activities without the necessary permissions, you will be solely responsible for any violations of copyright law, and may be subject to legal sanctions, including fines.
- Nature of Services. You may not use your virtual assistant or any of the Services to engage in any illegal or immoral activity.
- Indemnity. You hereby agree to release, indemnify and hold harmless both your virtual assistant and the Contractor from any loss, liability, claim or damage resulting from your decisions, directions and supervision or for any breach by you of this Agreement unless caused by the gross negligence or willful misconduct of the Contractor or your virtual assistant. You further waive any claim that the Contractor or any of the VAs are not acting in a professional, advisory, or consultative capacity.
5. Confidentiality and Non-disclosure
Each Party hereby acknowledges that during the Term, each Party may, from time to time, be supplied or work with certain information supplied by the other Party, all of which is confidential and of value to such Party (the “Confidential Information”). Each Party hereby agrees to the following in connection with the Confidential Information:
- 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 relating to the products, business or affairs 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.
- 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.
- Neither Party will use the 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.
- Neither Party will copy, reproduce or store the 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 Confidential Information.
- Neither Party will assert any right, title or property interest in or to the Confidential Information of the other Party.
- Upon the expiration or other termination of the Term, and at such other times as either Party may request, each Party will return to the other Party all information, strategic briefs, reports, memos, presentations, letters, copies, manuals, drawings, blueprints, discs, e-mails CD-ROMs and all other materials relating to the other Party’s business, including all Confidential Information, in such Party’s work space, personal possession or control. In addition, upon the expiration or other termination of the Term, 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 information, strategic briefs, reports, memos, presentations, letters, copies, manuals, drawings, blueprints, discs, e-mails, CD-ROMs and all other materials relating to the other Party’s business, including all Confidential Information, in such Party’s work space, personal possession or control.
- Confidential Information will not include, and the other Party shall have no obligation whatsoever under this Agreement with respect to, information that is or becomes (through no breach of this Agreement by the other Party) generally available to the public, or was in the other Party’s possession or known by the other Party prior to receipt from such Party as demonstrated by the other Party through written documentation (if available) or otherwise.
- 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.
- Each Party agrees that such Party’s obligations under this section shall continue beyond the expiration or other termination of the Term 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; Liquidates Damage
The Client shall not, directly or indirectly, solicit, recruit, induce, attempt to recruit or induce, or encourage any of the VAs or any of the Contractor’s other staff to leave the Contractor in order to provide services directly to any other person, including the Client and the Client’s successors, assigns and affiliates. This prohibition applies during the Term and for a period of one (1) year thereafter. The Client agrees that if the Client breaches Section 6, the Contractor will incur substantial economic damages and losses in amounts which are 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 $31,000.00 with respect to each of the Contractor’s VAs or other staff that the Client, directly or indirectly, solicits, recruits, induces, attempts to recruit or induce, or encourages to leave the Contractor in order to provide services directly to any other person, including the Client and the Client’s successors, assigns and affiliates. Such liquidated damages represent estimated actual damages to the Contractor arising from having to replace the VAs or other staff so recruited, and are not intended as 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 a VA or other staff and whether or not the Contractor has exercised its right to terminate the Term. This section 6 will survive the termination of the Term.
7. Warranties and Representations
Each Party hereby warrants and represents that such Party 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.
8. Limitation and Liability
Except as may be required by law where the Client is a consumer, in the event of a breach of this Agreement by the Contractor, the remedies of the Client will be limited to actual damages but will not exceed the greater of 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 or US $12,000.
- TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL EITHER CLIENT OR CONTRACTOR (OR THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR 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.
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 VAs) for vacation pay, sick leave, retirement benefits, social security, worker’s 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. Accordingly, the laws of the State of Arizona 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 by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s commercial arbitration rules then in effect. The number of arbitrators shall be one. The place of arbitration shall be Phoenix, Arizona. 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 Arizona, 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.
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 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, provided, however, that receipt of any such e-mail 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 are hereby terminated and canceled in their entirety and are of no further force and effect.
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(e) 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 Phoenix, Arizona.
Any telephone number assigned to Client by the Contractor shall remain the property of SparkSource.
15. Changes of 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”). If at any time, you do not agree to the terms of this Agreement or any of the policies on our Website, please discontinue use of the Services, and immediately close your account(s). We’ll miss you, but we’ll understand. Your continued use of the Services after SparkSource’s posting of any Changes constitutes your acceptance and agreement with the Changes and all Changes shall supersede any previous agreement between you and SparkSource. You must periodically review these terms and conditions to ensure you know of any changes.
For more details:
Contact: (888) 278 8094
RKE, LLC DBA SparkSource