These terms and conditions constitute a binding agreement (the “Agreement”) between you (the “Client”) and HIKINEX (hereafter HIKINEX, or “the Contractor”) effective as of the date of first purchase of services by the Client. Each of the Client and HIKINEX are referred to herein individually as a “Party” and collectively as the “Parties.” HIKINEX is a dba of Evolve Sales and Marketing, Inc. Staff members that perform services for the Client will be referred to as “Agent” for the remainder of this document.
The User Agreement is subject to change by HIKINEX at any time, at its sole discretion, with advance notice given to the user. The most current version of the Terms and Conditions of Service will be located on our website – www.HIKINEX.com. The current version on the website will supersede all other versions. The Client should review the User Agreement regularly, to determine if there have been changes. Continued use of HIKINEX constitutes acceptance of the most recent terms and conditions.
The Client accepts and agrees to the following:
1. SERVICES & COMMITMENT
HIKINEX shall perform any and all services with reasonable and professional care, skill, and process. Services are performed by employees of HIKINEX or its affiliates. HIKINEX only performs services using full-time employees and does not use market-place contractors. HIKINEX performs its services at secure facilities, and non-US employees are not allowed to work remotely, and are required to access Client information or operational databases from a secure HIKINEX facility. HIKINEX may freely delegate any of the Services to the Contractor’s additional staff and these delegated items will fall under the hourly plan. The Client may request services that do not fall under the existing expertise or experience of HIKINEX, in which case HIKINEX will request guidance and training from the Client or procure from internal resources or affiliated contractors. The client will be advised of training excess hours if HIKINEX determines that the training hours exceed 20% of the hours required to perform the related task. Training and related services will fall under the hourly plan selected by the Client. HIKINEX will maintain an hourly timekeeping report. This report will be made available for Client review with 24-hour notice. The timekeeping report is reviewed by management, and management reserves the right to adjust the hours as needed prior to release and review to Client.
1. Payment: The Client shall pay HIKINEX in advance of delivery of work according to the subscribed plan. Plans will renew automatically each month during the Term on each monthly anniversary of your subscription date unless specified by the Client. On renewal, your credit card or PayPal account will be charged in advance based on your selected plan. Unused hours are not rolled over to the following month. If your payment declines, the Services will be suspended until the payment is made.
The Client may be subject to burst hours beyond their prepaid plan. As a courtesy, HIKINEX will advise the Client when they are at 80% to 100% of consumption. The client will be responsible for burst hours and charges, and these will be charged at the next subscription period. The client is responsible for burst charges for services performed.
The client may upgrade their plan at any time within the billing period. The Client will be charged for the difference between the existing and new plan. The anniversary date will remain unchanged.
2. Expenses: The Client is responsible for payments of additional expenses that are necessary to perform Client’s work. HIKINEX may make purchases on behalf of Client to satisfy Client’s requests. Client’s Credit Card or PayPal account will be charged immediately for reimbursement charges, and purchases will incur a service charge of 2%.
3. Refunds: We provide 100% refund if you cancel your subscription within 10 days of the date of your purchase, and no services have been rendered. In case you have used our services within those 10 days and still wish to cancel the subscription, we will refund you the remaining after deducting an amount for the actual hours used.
In the unlikely event that you are dissatisfied with the work performed by your assigned HIKINEX Agent, you may contact your Customer Success Manager to discuss a resolution. The client is responsible for all hours of service performed. The Customer Success Manager is not required to make adjustments to hours billed. Refunds will not be given for the unused hours of your last month’s subscription.
3. CLIENT RESPONSIBILITY AND INDEMNITY
The Client shall at all times co-operate with HIKINEX in all matters relating to service and support.
1. Licensing and Software: Client will obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the receipt by it of the Services. If additional software is required to perform services, HIKINEX may request Client to purchase and provide access. HIKINEX maintains a reasonable suite of business software to perform its services and will notify Client if additional software is required to perform services.
2. Authorized Staff: Client will provide an authorization list of agents that may transact on behalf of Client on the Client Account. If Client authorizes an agent, they will have the same level of authorization as Client unless the Client provides a detailed authority matrix.
3. Supervision of Staff: Your HIKINEX staffs acts under your direction. If you require your HIKINEX Agent 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 HIKINEX Agent is acting on your behalf and is under your supervision at all times.
HIKINEX provides both US and Offshore supervision and management. This management team, however, is for escalation purposes and is not directly supervising your HIKINEX Agent. Management staff does not bill for their services unless they are performing the services as a HIKINEX agent. Management time is billed at the same rate found in the subscription.
4. Passwords: Should you provide HIKINEX with passwords or security information 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 because of such access.
5. 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 Agent 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 Agent 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.
6. Nature of Services: You may not use your Agent or any of the Services to engage in any illegal or immoral activity.
7. Indemnity: You hereby agree to release, indemnify and hold harmless both your Agent and HIKINEX 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 HIKINEX or your Agent. If HIKINEX’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, HIKINEX shall not be liable for any costs, charges, or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
8. Closing Your Account: You may close your Account with 30 days notice. You will be responsible for any hours consumed or expenses that have been incurred. HIKINEX will not retain any of your Client data (except for Contact Information), and will not be able to recover work product or other information that may have been created, or utilized during the engagement.
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:
1. Neither Party will disseminate nor disclose to any third party, nor 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.
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 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.
4. 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.
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 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.
7. 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.
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 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.
10. Contractor acknowledges that it will be necessary for Client to disclose certain confidential and proprietary information to Contractor in order for Contractor to perform duties under this Agreement. Contractor acknowledges that disclosure to a third party or misuse of this proprietary or confidential information would irreparably harm Client. Accordingly, Contractor will not disclose or use, either during or after the term of this Agreement, any proprietary or confidential information of Client without Client’s prior written permission except to the extent necessary to perform services on Client’s behalf..
5. PROPRIETARY INFORMATION
The product of all work performed under this Agreement (“Work Product”), including without limitation all notes, reports, documentation, drawings, computer programs, inventions, creations, works, devices, models, work-in-progress and deliverables will be the sole property of the Client, and Contractor hereby assigns to the Client all right, title and interest therein, including but not limited to all audiovisual, literary, moral rights and other copyrights, patent rights, trade secret rights and other proprietary rights therein. Contractor retains no right to use the Work Product and agrees not to challenge the validity of the Client’s ownership in the Work Product.
The Client shall not solicit, recruit, induce, attempt to recruit or induce, or encourage any of the VAs, or any of the Contractor’s other staff to leave HIKINEX in order to provide services directly to the Client. The Client agrees that if the Client breaches this section 6, HIKINEX will incur substantial economic damages and losses in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by HIKINEX 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 HIKINEX as against the Client in the event of such breach and without HIKINEX being required to present any evidence of the amount or character of actual damages sustained by reason thereof; therefore the Client shall be liable to HIKINEX for payment of liquidated damages in the amount equal to 20% of the annual salary of the employee with respect to any of the Contractor’s staff that the Client solicits, recruits, induces, attempts to recruit or induce, or encourages to leave HIKINEX in order to provide services directly to the Client. Such liquidated damages represent estimated actual damages to HIKINEX 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 HIKINEX within five (5) days of notice from HIKINEX of the resignation of a VA or other staff and whether or not HIKINEX has exercised its right to terminate 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 OF LIABILITY
1. 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.
2. 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. HIKINEX 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. HIKINEX 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. GOVERNING JURISDICTION
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 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 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. You are also advised that Section 10 of this Agreement includes an arbitration clause and the arbitration will occur in San Francisco County, California.
THANK YOU FOR WORKING WITH HIKINEX. PLEASE CONTACT US WITH ANY QUESTIONS.
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