USER ACCESS AND LICENSE AGREEMENT
This User Access and License Agreement (the “Agreement”) is a legal document governing the use of mHelpDesk’s remote-accessible service based on our Service Management Software (the “Service”). By accessing and using our Service, you are agreeing to be bound by and comply with the terms and conditions of this Agreement. The terms “mHelpDesk”, “we”, “us” or “our” refers collectively to the licensor mHelpDesk, LLC and our website mHelpDesk.com (the “Site”). The term “you” or “your” refers to you as the user and licensee of our Service under this Agreement.
1. ACCEPTANCE OF TERMS
mHelpDesk makes the Service available through our Site as provided in this Agreement. We provide our Service to you under and subject to the most recent version of this Agreement. We may update this Agreement at any time, without prior notice to you, by posting a new version at http://www.mHelpDesk.com/user_agreement. The latest Agreement will be posted on the Site for your review before using the Service.
2. DESCRIPTION OF SERVICE
The Service is designed to provide you with the capability to manage your service business. The Service is based on our Service Management Software (the “Service Management Software”) that is hosted by us or on our behalf and accessible by you remotely through our Site.
Subject to the terms and conditions of this Agreement, mHelpDesk grants to you a limited, non-transferable, non-exclusive, revocable right and license to access and use our Service to support your business operations for the term of this Agreement unless sooner terminated; provided, however, that you may not use the Service in a resale capacity, or process third party data in a commercial service bureau environment, and mHelpDesk retains all right, title and interest in and to all Service Management Software applications and any materials supplied to you by us.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way except as permitted under this Agreement in connection with developing your own service management programs; (ii) modify or make derivative works based upon the Service; (iii) create Internet “links” to the Service or “frame” or “mirror” any portion of the Service on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics represented by or incorporated in the Service, or (e) copy any ideas, features, functions or graphics represented by or incorporated in the Service.
The Service includes mHelpDesk’s responsibility for providing and operating the servers, system software, and applications software including our Service Management Software functionality available to you in connection with the Service as provided in this Agreement.
Our Service will include remedial maintenance for the Service Management Software our Service is based upon.
7. AVAILABILITY OF SERVICE
Subject to the terms and conditions of this Agreement, mHelpDesk will use its commercially reasonable efforts to provide the Service for twenty-four hours a day, seven (7) days a week through the term of this Agreement. You agree that from time to time the Service may be inaccessible or impossible to use for various reasons, including periodic maintenance procedures or upgrades, service malfunctions and causes beyond our control or which are not reasonably forseeable by us, including the interruption or failure of telecommunications or digital transmission links, hostile network attacks or network congestion or other failures (collectively, “Downtime”). mHelpDesk will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Service in connection with Downtime, whether scheduled or not. mHelpDesk will not be responsible for any damages or costs incurred by you, if any, in connection with Downtime.
You will pay mHelpDesk the fees specified in the plan corresponding to the Service level for which you have subscribed. Payments are due within thirty (30) days of our invoice. Late payments are subject to an interest charge, which is the lower of one and one-half percent (1.5%) per month or the maximum legal rate. You are responsible for the payment of all taxes associated with this Agreement or your use of the Service (other than the taxes based on mHelpDesk’s net income). If mHelpDesk is required to pay any such taxes, you will, upon receipt of our invoice, reimburse us for any taxes paid by mHelpDesk. You are not required to pay any taxes from which you are legally exempt. Your Service will automatically renew at the end of the Service period and mHelpDesk will charge the then-current renewal fees to the credit card associated with Your Account. If you cancel your mHelpDesk Service, mHelpDesk is not obligated to refund Service charges already paid. Cancellation will take effect at the end of the current Service period unless a sooner date is requested.
9. YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the mHelpDesk Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by the mHelpDesk Service’s registration form (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or mHelpDesk has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, mHelpDesk has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You are responsible for all activity occurring under your account.
You agree to comply with our acceptable use policies in connection with your use of the Service. You understand that all information, data, text, software, graphics, or other materials (“User Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such User Content originated. This means that you, and not mHelpDesk, are entirely responsible for all User Content that you upload, post, e-mail, transmit, or otherwise make available via the Service. mHelpDesk does not control the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity, or quality of such User Content. Under no circumstances will mHelpDesk be liable in any way for any User Content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any User Content posted, e-mailed, transmitted, or otherwise made available via the Service. You agree to not use the Service to:
- upload, post, e-mail, transmit, or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable, or harm minors;
- impersonate any person or entity or falsely state or otherwise misrepresent your identity or affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service;
- upload, post, e-mail, transmit, or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or other relationships;
- upload, post, e-mail, transmit, or otherwise make available any User Content that infringes any patent, trademark, trade secret, copyright, or other property rights of any party;
- upload, post, e-mail, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” or any other form of solicitation;
- upload, post, e-mail, transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects other users’ ability to engage in discussions or exchanges;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national, or international law;
- “stalk” or otherwise harass another; and/or
- collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs above. You acknowledge that mHelpDesk may or may not pre-screen User Content, but that mHelpDesk and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move, or remove any User Content that is available via the Service and which violates the terms of this Agreement. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. You acknowledge, consent, and agree that mHelpDesk may access, preserve, and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
(a) comply with legal process;
(b) enforce the terms of this Agreement;
(c) respond to claims that any User Content violates the rights of third parties;
(d) respond to your requests for subscriber service; and/or
(e) protect the rights, property, interests, or personal safety of mHelpDesk, its users, and the public.
11. UNAUTHORIZED USE
You will notify us immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
12. USER CONTENT MADE AVAILABLE FOR INCLUSION ON THE SERVICE
mHelpDesk does not claim ownership of User Content you submit or make available for inclusion via the Service. However, with respect to User Content you submit or make available for inclusion on the Service, you irrevocably grant mHelpDesk the perpetual, worldwide, royalty-free and non-exclusive license, with the right to sublicense through multiple tiers of sublicenses, to use, distribute, reproduce, modify, adapt, translate, reformat, publicly perform, and publicly display such User Content, in whole or in part, on the Service or other publications by mHelpDesk in any media whether now existing or which may come into existence in the future and to provide that information under the license set forth in this Agreement, and the right to publish your name in connection with such User Content.
13. USAGE INFORMATION
14. INTELLECTUAL PROPERTY OWNERSHIP
The term “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship throughout the universe, including, but not limited to, copyrights and moral rights, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual property and industrial property rights of every kind and nature throughout the universe and however designated, whether arising by operation of law, contract or license, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). You agree that mHelpDesk shall retain all right, title and ownership in and to the Service, the Site, Service Management Software, and all Content we provide you in connection with the Service, including, without limitation, all related Intellectual Property Rights represented by or embodied in our Service, Site, Service Management Software or Content. The term “Content” shall refer to all information, data, text, graphics or other materials we make available to you in connection with the Service. You shall have no rights in such Service, Site, Service Management Software or Content other than the limited right to use such Service, Site, Service Management Software or Content as provided herein. We will also own all right, title and interest in any suggestions, ideas, enhancements, requests, feedback, recommendations and other information you provide us relating to the Service.
15. SCRAPERS, BOTS, CRAWLERS AND SPIDERS
Use of any robot, spider, site search, retrieval application or other manual or automatic device to retrieve, index, scrape, data mine or in any way gather or extract content on or available through the Site or our Service or reproduce or circumvent the navigational structure or presentation of the Site, or our Service without mHelpDesk’s express written consent is prohibited.
You agree to indemnify and hold mHelpDesk and its subsidiaries, affiliates, officers, agents, employees, partners, and licensors harmless from any claim or demand, including but not limited to reasonable attorneys’ fees, made by any third party due to or arising out of User Content you submit, post, transmit, or otherwise make available through the Service, your use of the Service, your connection to the Service, any content you create, manage or control in connection to the Service, your violation of the terms of this Agreement, or your violation of any rights of another.
17. MODIFICATIONS TO SERVICE
You acknowledge that mHelpDesk may establish general practices and limits concerning use of the Service. You further acknowledge that mHelpDesk reserves the right to modify these general practices and limits from time to time. mHelpDesk reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that mHelpDesk shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, in whole or in part.
18. TERM AND TERMINATION.
This Agreement shall commence upon acceptance of your Registration Data and initial payment and shall continue thereafter until terminated. Either party may terminate this Agreement for material breach of its terms, if such breach is not remedied within ten (10) days after written notice of breach. You agree that mHelpDesk may terminate your access to the Service for violations of this Agreement and/or requests by authorized law enforcement or other government agencies. Any breach of your payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement. We, in our sole discretion, may terminate your password account, or use of the Service if you breach or otherwise fail to comply with this Agreement.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because mHelpDesk has no control over such sites and resources, you acknowledge and agree that mHelpDesk is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any third party Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that mHelpDesk shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance of any such third party Content, goods, or services available on or through any such site or resource.
20. Disclaimer of warranties
You expressly understand and agree that your use of the service is at your sole risk. The mHelpDesk service is provided on an “as is” and “as available” basis. In the event of system or component failure, it is possible that for a certain period of time, you may not be able to enter new transactions, execute existing transactions, or modify or cancel transactions that were previously entered. System or component failure may also result in loss of orders or priority. mHelpDesk and its affiliates, officers, employees, and licensors expressly disclaim all warranties of any kind, whether express, statutory, or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose or use, availability, non-interference with your enjoyment of the site or service and non-infringement. mHelpDesk and its affiliates, officers, employees, and licensors make no warranty that: (a) the service will meet your requirements; (b) the service will be uninterrupted, timely, completely secure, without delay, free from service degradation or error-free; and/or (c) the results that may be obtained from the use of the service will be accurate or reliable. No advice or information, whether oral or written, obtained by you from mHelpDesk or through or from the service shall create any warranty not expressly stated in this agreement.
21. Limitation of liability
You expressly understand and agree that mHelpDesk and its affiliates, officers, employees, agents, partners, and licensors shall not be liable to you (whether in contract or based on warranty, negligence, tort, strict liability or otherwise) for any indirect, incidental, special, consequential, or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses (even if mHelpDesk has been advised of the possibility of such damages), resulting from the use or the inability to use our site or service. In any event, our total aggregate liability arising from or related to this agreement or the service shall be limited to your direct damages not to exceed the fees actually paid to us during the most recent six month period immediately preceding the earliest event giving rise to our liability under this agreement.
Except for the right of a party to apply to a court for a temporary restraining order, preliminary injunction or other equitable relief, any controversy or claim arising out of or relating to this Agreement that cannot be resolved through negotiation will be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If the parties cannot agree on a single arbitrator, the arbitrator will be selected by the American Arbitration Association. All arbitration proceedings will occur in English and will be held in Reston, Virginia, USA. The parties agree that any dispute resolution proceeding will be conducted on an individual basis and not as a class or representation action. Neither you nor mHelpDesk shall be a member of a class, consolidated or representative action or proceeding. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. The cost of the arbitration shall be borne equally by the parties. Neither party nor the arbitrator may disclose the existence or results of any arbitration hereunder. The authority of the arbitrator to award damages in any event is and shall be limited by this Agreement.
23. GENERAL INFORMATION
23.1 Entire Agreement.
This Agreement and any applicable Registration Form and Exhibit A constitutes the entire agreement between you and mHelpDesk and governs your use of the Service, superseding any prior agreements between you and mHelpDesk with respect to the Service.
23.2 Choice of Law and Forum.
This Agreement and the relationship between you and mHelpDesk shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Fairfax, Virginia.
23.3 Waiver and Severability of Terms:
The failure of mHelpDesk to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
23.4 Force Majeure.
No party shall be liable to any other party for any failure or delay caused by force majeure and similar events beyond any party’s reasonable control, including, without limitation, acts of nature, terrorist acts, sabotage, or accidents.
23.5 Independent Contractors.
mHelpDesk and you are independent contractors. None of the provisions of this Agreement or the provision of the Service hereunder shall be deemed to constitute a partnership, joint venture, franchisor-franchisee, employer-employee, or any other such relationship between the parties hereto, and neither party shall have any authority to bind the other in any manner except as expressly provided in this Agreement. Neither party shall have or hold itself out as having any right, authority or agency to act on behalf of the other party in any capacity or in any manner, except as may be specifically authorized in this Agreement. You assume full responsibility for the acts of your personnel and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
This Agreement may not be assigned by you without our prior written approval. Any purported assignment in violation of this section shall be void. Any permitted assignment shall inure to the benefit of and be binding on the assigning party’s successor and assigns.
23.7 No Third Party Beneficiaries.
The Agreement does not create any unintended third party beneficiary rights.
. Any notices required or permitted hereunder shall be given to the appropriate party at such address as the party shall specify in writing. For mHelpDesk the address will be specified on the Site. For you the address will be specified in your registration application. Either party may change its address by notifying the other party in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.