Terms of Service
These Terms of Service govern Customer’s access to and use of www.gethelpt.com and Customer’s use of the Services. These Terms of Service are by and between PAG Technology Inc. (“Helpt”), and the organization or other legal entity (“Customer”) entering into these Terms of Service. Capitalized terms not otherwise defined herein are described in Section 13 “Definitions”.
CAREFULLY READ THESE TERMS OF SERVICE. BY EXECUTING OR ACKNOWLEDGING RECEIPT OF THESE TERMS OF SERVICE, CLICKING “ACCEPT” OR “AGREE” (OR SIMILAR LANGUAGE) TO THE TERMS OF SERVICE WHEN MADE AVAILABLE, OR ACCESSING AND USING THE HELPT SERVICES, CUSTOMER AGREES TO BE BOUND BY THESE TERMS OF SERVICE AND REPRESENTS THAT CUSTOMER IS DULY AUTHORIZED TO ACCEPT THESE TERMS OF SERVICE ON BEHALF OF THE HELPT OR OTHER ORGANIZATION RECEIVING THE SERVICES. IF CUSTOMER DOES NOT AGREE TO THESE TERMS OF SERVICE, DO NOT ACCEPT, AGREE TO, ACCESS, OR OTHERWISE USE THE SERVICES.
1. Order. Pursuant to the terms of these Terms of Service, Helpt will provide Customer with access to the Services specified by the applicable Order. The Order is incorporated into these Terms of Service by reference. To the extent that any conflict arises between these Terms of Service and an Order, these Terms of Service shall control.
2. Services.
(a) Helpsters. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of these Terms of Service and the applicable Order, Helpt will provide the Services described in the applicable Order. If Customer determines in good faith that a particular Helpster is not performing the Services in a satisfactory way, Customer may provide Helpt with written notice thereof and Helpt shall, at Customer’s reasonable request, use commercially reasonable efforts to remove and replace such individual. Helpt reserves the right to remove or reassign Helpsters. Helpt is responsible for the payment of wages to its Helpsters.
(b) Legal Relationship. Helpt acknowledges that it is an independent contractor of Customer and that the Helpsters providing Services are and will remain employees or contractors of Helpt. Customer is interested only in receipt of the Services and the conduct and the control of the Services delivered hereunder shall be determined by Helpt, in its sole discretion. Helpt shall have full responsibility for properly and timely paying its personnel in compliance with federal and state law.
(c) Non-Solicitation. Customer covenants that, for so long as these Terms of Service are in effect, and for twenty-four (24) months thereafter, Customer will not, directly or indirectly, solicit or induce, or attempt to solicit or induce, any employee or contractor of Helpt to leave Helpt for any reason whatsoever and will not hire or solicit the services of any Helpsters of Helpt without the written consent of Helpt. Customer acknowledges that Helpt incurs substantial expenses for recruiting, testing, training and retaining its personnel. Customer agrees to obtain the services of such personnel first identified by Helpt to Customer only through agreement with Helpt. In the event of any violation of this Section 2(c), Customer will compensate Helpt at the conversion rate equal to the greater of $50,000 or 200% of such person’s annualized salary to be paid by Customer.
3. Platform Access.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of these Terms of Service and the applicable Order, Helpt hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(h)) right to access and use the Platform during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.
(b) Use Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the access granted in these Terms of Service and the applicable Order. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform; or (v) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
4. Customer Data. Customer acknowledges and agrees that Helpt may use Customer Data to provide the Services to Customer and as otherwise set forth in these Terms of Service. By submitting or transmitting Customer Data to the Services, Customer represents and warrants that Customer is the owner of, and/or has all necessary right and permissions to Customer Data to permit Helpt to use the same in accordance with these Terms of Service without violating the rights of any third party. Customer is solely responsible for all Customer Data submitted or transmitted to the Platform or used in connection with the Services, including without limitation the accuracy, quality, integrity, completeness, legality, reliability, and appropriateness of such Customer Data. Helpt shall implement and maintain appropriate technical, physical, and organizational controls to secure the Services and to protect the security, confidentiality, and integrity of Customer Data.
5. Fees and Payment.
(a) Fees and Payment. Customer will be required to select a payment plan in the Order and provide credit card or other payment instrument information. Customer represents and warrants to Helpt that such information is true and that Customer is authorized to use the payment instrument. Customer will promptly update account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. Customer agrees to pay Helpt the amount that is specified in the payment plan (as well as any applicable taxes) in accordance with the terms of such plan and these Terms of Service. If Customer’s usage exceeds the applicable payment plan, Customer will be billed an overage fee corresponding to the amount of excess usage. Customer hereby authorizes Helpt to bill the Customer’s payment instrument in accordance with the terms of the applicable payment plan or overage, as applicable (as well as any applicable taxes), until Customer deactivate Customer’s account, and Customer further agrees to pay any charges so incurred without offset or deduction. If Customer dispute any charges, Customer must provide written notice to Helpt within fourteen (14) days after the date that Helpt charges the Customer’s payment instrument.
(b) Automatic Renewal; Price Changes. All subscription-based Services automatically renew according to the subscription plan (e.g., monthly or annually) unless terminated by Customer prior to the renewal date within Customer’s account settings. Helpt reserves the right to change Helpt’s price for subscription-based Services at any time upon thirty (30) days’ notice. If Customer disagrees with the change in price for the subscription-based Services, then Customer may terminate such subscription-based Services by providing Helpt written notice at any time prior to the change in price becoming effective. Customer’s continued use of the Services after the price change becomes effective constitutes agreement to pay the changed amount. If Customer’s subscription is annual, the price change will become effective upon renewal.
(c) Payment Authorization. Customer authorizes Helpt to maintain Customer payment information and charge Customer’s payment instrument automatically upon the renewal of the Services or for any overages with no further action required by Customer. In the event that Helpt is unable to charge Customer’s account as authorized by Customer when Customer enrolled in the Services for any outstanding fees, Helpt, may, in its sole discretion, without limiting Helpt’s other rights and remedies: (i) seek to update account information through third party sources (i.e., Customer’s bank or a payment processor) to continue charging the Customer account as authorized by Customer; (ii) charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (iii) charge any and all costs incurred by Helpt in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and/or (iv) suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full (a “Service Suspension”). Helpt shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of Services following any Service Suspension. Helpt shall use commercially reasonable efforts to resume providing the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Helpt will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. All payment obligations will continue during any such Service Suspension.
(d) No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used periods. Customer may cancel the Services at any time, but if the Services are cancelled before the end of the Term, Helpt will not refund any fees already paid to Helpt for the cancelled Services (except as provided in Section 11(c)) and must pay any outstanding fees immediately upon cancellation. Following any cancellation, however, Customer will continue to have access to the Services through the end of the Term.
(e) Taxes. All Fees and other amounts payable by Customer under these Terms of Service and the applicable Order are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on the income of Helpt.
(f) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Helpt or Helpt’s designee may, at its own expense and on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Helpt with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 5.0% for any month. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
(g) Annual Plans. For annual plans set for monthly payment, the total service allotted is divided by the number of months within the contractual period to determine a monthly allocation. Usage tracking occurs on a monthly basis. If, at the end of any month, Customer has used greater than 20% more than the amount allotted for the sum of months from the plan through that month, an overage charge will be applied and credited against a future month’s payment. The overage charge will reflect the additional minutes used beyond the 20% allowance at a rate equivalent to the total agreement amount divided by the number of minutes allocated for the full service period. Customer will be duly notified of any overage fees incurred as per their usage patterns and will have access to usage reports and billing details for transparency and understanding.
6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms of Service, including to make required court filings. On the expiration or termination of these Terms of Service, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms of Service for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Aggregated Data; Feedback.
(a) Helpt IP and Helpt Tools. Customer acknowledges that, as between Customer and Helpt, Helpt owns all right, title, and interest, including all intellectual property rights, in and to the Helpt IP and Helpt Tools. With respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Helpt reserves all rights not expressly granted to Customer in these Terms of Service. Except for the limited rights and licenses expressly granted under these Terms of Service, nothing in these Terms of Service grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Helpt IP.
(b) Customer Work Product and Customer Data. Helpt acknowledges that, as between Helpt and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and Customer Work Product. Customer hereby grants to Helpt a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and Customer Work Product and perform all acts with respect to the Customer Data and Customer Work Product as may be necessary for Helpt to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Data.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Helpt by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or Helpt IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Helpt is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Helpt on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Helpt is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Helpt is not required to use any Feedback.
(d) Aggregated Data. Notwithstanding anything to the contrary in these Terms of Service, Helpt may monitor Customer’s use of the Services and collect and compile Aggregated Data. As between Helpt and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Helpt. Customer acknowledges that Helpt may compile Aggregated Data based on Customer Data provided to Helpt in connection with the Services. Customer agrees that Helpt may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data does not identify Customer or Customer’s Confidential Information.
8. Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HELPT IP, HELPT TOOLS, AND SERVICES ARE PROVIDED “AS IS” AND HELPT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. HELPT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HELPT MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, THE HELPT IP, OR ANY SERVICES, PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
(a) Helpt Indemnification.
(i) Helpt shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Services, or any use of the Services in accordance with these Terms of Service and the Order, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Helpt in writing of the claim, cooperates with Helpt, and allows Helpt sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Helpt, at Helpt’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use the Services. If Helpt determines that neither alternative is reasonably available, Helpt may terminate these Terms of Service and the applicable Order, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Helpt or authorized by Helpt in writing; (B) modifications to the Services not made by Helpt; (C) Customer Data; or (D) Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Helpt’s option, defend Helpt from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms of Service or the Order, infringes or misappropriates such third party’s intellectual property rights or other rights, and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; or (ii) use of the Services in a manner not authorized by these Terms of Service, provided that Customer may not settle any Third-Party Claim against Helpt unless Helpt consents to such settlement, and further provided that Helpt will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
10. Limitations of Liability. IN NO EVENT WILL HELPT BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR AN ORDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER HELPT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL HELPT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR AN ORDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO HELPT IN CONNECTION WITH THE APPLICABLE ORDER IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
(a) Term. Unless earlier terminated pursuant to Section 5(b) or this Section 11, each Order will remain in effect for the duration of the term specified in the applicable Order for the Services, including any renewals (the “Term”).
(b) Termination. In addition to any other express termination right set forth in these Terms of Service:
(i) Helpt may terminate these Terms of Service and/or any Order, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Helpt’s delivery of written notice thereof (email shall suffice); or (B) breaches any of its obligations under Section 2(c) or Section 6;
(ii) either Party may terminate these Terms of Service and the underlying Order, effective on written notice to the other Party, if the other Party materially breaches these Terms of Service or the applicable Order, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate these Terms of Service and the applicable Order, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms of Service by Helpt pursuant to Section 11(b) (i) Customer shall immediately discontinue use of the Services and the Helpt IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Helpt IP and certify in writing to the Helpt that the Helpt IP has been deleted or destroyed, and (ii) all unused Services shall expire. Upon expiration or earlier termination of these Terms of Service by Customer pursuant to Section 11(b)(ii) or 11(b)(iii) (i) Customer shall immediately discontinue use of the Services and the Helpt IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Helpt IP and certify in writing to the Helpt that the Helpt IP has been deleted or destroyed, and (ii) Helpt will provide a pro-rata refund of any pre-paid unused Services. Except as specifically stated in this Agreement, no expiration or termination will affect Customer’s obligation to pay all Fees or entitle Customer to a pro-rata refund for unused Services.
(d) Survival. This Section 11(d) and Sections 1, 2(c), 5, 6, 7, 8, 9, 10, and the applicable portions of Section 12 and 13 survive any termination or expiration of these Terms of Service. No other provisions of these Terms of Service shall survive the expiration or earlier termination of these Terms of Service.
12. Miscellaneous.
(a) Entire Agreement. These Terms of Service together with any applicable Order, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the Services and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. Except as otherwise provided herein, notices under these Terms of Service by Customer to Helpt will be deemed to be sufficiently given, effective on the date received, when delivered personally or by overnight express, or nationally recognized courier services, or three (3) business days after mailing when sent by certified or registered mail, postage prepaid to 1682 Langley Ave, #12, Irvine, CA 92614. Customer consents to receive from Helpt all communications including notices, agreements, legally required disclosures or other information in connection with the Services electronically. Helpt may provide such notices by posting them on the Services or at the email address you provided to Helpt. If Customer desires to withdraw consent to receive notices electronically, Customer must discontinue use of the Services.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached these Terms of Service, for any failure or delay in performing its obligations under these Terms of Service (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of these Terms of Service is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms of Service, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms of Service will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Third-Party Products. Helpt may from time to time make Third-Party Products available to Customer. For purposes of these Terms of Service, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions, as applicable. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. Third Party Products are not part of the Services and, as between the parties, Helpt has no liability with respect to Customer’s procurement or use of Third-Party Products.
(f) Severability. If any provision of these Terms of Service is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms of Service so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(g) Governing Law. These Terms of Service, together with each applicable Order, are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California.
(h) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Helpt. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms of Service are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(i) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(k) Counterparts. These Terms of Service may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
13. Definitions.
“Aggregated Data” means data and information related to Customer’s use of the Services that is used by Helpt in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to an Order and (ii) for whom access to the Services has been purchased hereunder.
“Customer Data” means, other than Aggregated Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer, an Authorized User, or an end user through the Services.
“Customer Work Product” means the documents, work product and other materials that are delivered to Customer in the course of performing the Services. Customer Work Product does not include Helpt IP, Helpt Tools, or Aggregated Data.
“Helpt IP” means the Platform, and any and all intellectual property provided to Customer, any Authorized User or any end user in connection with the foregoing. For the avoidance of doubt, Helpt IP includes Aggregated Data and any information, data, or other content derived from Helpt’s monitoring of Customer’s access to or use of the Platform but does not include Customer Data or Customer Work Product.
“Helpt Tools” means pre-existing proprietary works of authorship that have not been created specifically for Customer, and that do not uniquely address issues related to Customer’s business practices or contain or embody Confidential Information of Customer, including without limitation computer programs, methodologies, templates, flowcharts, designs, tools, specifications, models, and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, and any derivatives thereof, which have been originated, developed or purchased by Helpt or by third parties under contract to Helpt.
“Order” means the ordering document pursuant to which Customer subscribes to or purchases the Services. The Order will include a description of the specific services purchased, the associated cost, quantity, and other similar terms.
“Platform” means the outsourced technical support services platform located at gethelpt.com, and any and all intellectual property provided to Customer, any Authorized User or any end user in connection with the foregoing.
“Services” means (i) the outsourced technical support services described on the applicable Order; (ii) access to the Platform.
“Third-Party Products” any products provided by third parties, such as open-source software or other software, that may be used with or incorporated into the Services.