IMPORTANT – PLEASE READ THIS CAREFULLY. SUPPORT DESK AMERICA (THE "SERVICE PROVIDER") IS OWNED AND OPERATED BY SMART CALL CENTER SOLUTIONS PVT LTD. AND IS PRESENTED TO YOU ("YOU" /"CLIENT") UNDER THE TERMS AND CONDITIONS OF THE SUPPORT DESK AMERICA TERMS OF SERVICE. THIS "AGREEMENT" INCLUDES SUPPORT DESK AMERICA'S PRIVACY POLICY AND A REGISTRATION FORM, AVAILABLE THROUGH THE HYPERLINKS SET FORTH BELOW AND INCORPORATED HEREIN BY REFERENCE IN THE WEBSITE. BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND CHECKING THE "AGREEMENT" CHECKBOX, YOU ARE CONFIRMING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE SERVICE. YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AT LEAST 18 YEARS OF AGE AND AUTHORIZED TO SIGN FOR AND BIND THE CONTRACTING PARTY AND (II) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN BELOW. IF YOU DO NOT AGREE, PLEASE DO NOT CONTINUE WITH THE ACCEPTANCE PROCESS.
GENERAL
You are deemed to have accepted this Agreement upon the earlier of: (a) your submission of an online or telephonic order for the Services; (b) your electronic acceptance of this Agreement during registration or in the course of initiating a support session via online or by telephone; (c) your use of the Service; or (d) your retention of the Software, available to you. This Agreement is made up of the terms outlined by our representative over the phone, or as otherwise specified on the SUPPORT DESK AMERICA website (http://www.Supportdeskamerica.com) (the "Website"), all of which are incorporated herein by reference.
DEFINITION OF SERVICE
As per the Agreement, the term "Service" shall mean the Support Desk America’s service, including all Software, technical support, email and other features, products and services provided by Support Desk America (or third party vendors) under the service option, selected by you. The Service may be referred to herein as: "Remote Support Service,” or "Remote Personal Technology Support.” The “Software” shall mean the PC Check & Connect Client and other third party diagnostic tools that may be downloaded and used in the provision of the Service.
AUTHORIZED USER, USE, AND RESPONSIBILITIES
a. You hereby certify that the information provided by you to us is correct and authentic. You understand that Support Desk America relies on the information you supply and that providing any false or incorrect information may result in Service withholding or delays or the suspension or termination of your customer account. You shall indemnify and defend Support Desk America for any harm or damages, resulting from any provision by you of false or incorrect information. You shall promptly notify Support Desk America whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).
b. You will be responsible for the Services and Software provided through your account, including any secondary accounts or sub-accounts registered to your primary account. This means that you are accepting full liability and responsibility for the actions of anyone who uses Service or Software via your account, or any secondary accounts, with or without your permission. You shall indemnify and defend Support Desk America for any harm or damages caused due to the use of the Service or Software via your account, or any secondary accounts.
c. If you select a service plan that includes a pre-determined allocation of Services (for example, pre-purchasing a “Help Sessions 4-Pack” for Remote Personal Technology Support), your unused allotment of Services shall remain in your customer account for 1 year.
d. You will never resell the Service, use it for high volume purposes nor engage in similar activities that constitute such (commercial or non-commercial), or use it as a virtual support center, as determined solely by Support Desk America.
e. You will never engage Support Desk America or any of its authorized service representatives to participate in, or contribute towards any activity that is illegal under any applicable federal, state or local law, rule or regulation. Meanwhile, you will indemnify and defend Support Desk America from and against any harm or damages caused by any illegal activity where you might be engaged.
SOFTWARE LICENSES AND THIRD PARTY SERVICES
a. In connection with the Service, we may provide you certain software in the form of CD, other media, or other delivery methods. The software is owned by Support Desk America or its third party licensors, providers and suppliers (collectively, “Third Party Licensors”), and it may be provided to you for free or for a fee. We reserve the right to update or change the Software from time to time and, if you wish to continue receiving the Service, you shall cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You will use the Software only for use with the Service and for no other purposes.
b. The Software may be accompanied by one or more end user license agreements from Support Desk America or its Third Party Licensors. Your use of the Software is governed by the terms of each applicable end user license agreement. You shall not install or use any Software that is accompanied by an end user license agreement unless you first agree to the terms and conditions of such end user license agreement by clicking on the checkbox presented to you.
c. You will never make any copies of the Software. You agree that the Software is the confidential information of Support Desk America or its Third Party Licensors which you shall not disclose to others or use except as expressly permitted herein or by the applicable end user license agreement(s). The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Support Desk America or its Third Party Licensors. You shall not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, or otherwise reduce the Software to a human readable form. Neither you shall modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. You shall not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. You are not granted any title or rights of ownership in the Software. You should acknowledge that this license is not a sale of intellectual property and that Support Desk America or its Third Party Licensors continue to own all right, title and interest, including but not limited to, all copyright, patent, trademark, trade secret, and moral rights, in and to the Software and related documentation, as well as any corrections, updates and upgrades. You shall only use the Software in the United States and any export of the Software by you or at your direction is strictly prohibited.
d. Your license to use the Software shall remain in full force until and unless terminated by Support Desk America, it’s Third Party Licensors, or until your customer account is terminated. Upon termination of your customer account for any reason, you must cease the use of the Software and immediately delete the Software from your computer.
e. If you subscribe to or otherwise use any third party services offered by Support Desk America, your use of such services is subject to Third Party Licensors’ terms of service. You shall comply with all Third Party Licensors’ terms of service and acknowledge and agree that such Third Party Licensor is solely responsible for delivery of its service(s) and Software to you. Third Party Licensor services include, but are not limited to, technical support, training, and storage services that Support Desk America may elect to make available from time to time. Violation of such Third Party Licensor’s terms of service may result in the termination of your customer account and use of Service and Software.
Restrictions
You shall not: (a) "mirror" any Content on the Site without Support Desk America's prior express written permission, (b) use the Service for any illegal purpose, (c) misuse, abuse or make any unauthorized use of any property, network, website, personnel or equipment of Support Desk America or its customers or its suppliers (d) engage in any activities or actions in connection with the Services that infringe or misappropriate the intellectual property rights of others, including without limitation, copyright, patent, trademark, trade secret and confidential information, (e) engage in any activities that violate the personal privacy or publicity rights of others; (f) access, monitor or use data, traffic, computers, systems, facilities or networks provided with or accessible from the Services, without proper authorization, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; (g) send unsolicited commercial messages, advertising, informational announcements or communications in any form (“SPAM”) connected to Services; or (h) interfere with the Services or any system, network, or person accessible from the Services, with deliberate attempts to overload a system by the multiple postings of messages.
If you have purchased Personal Subscription Services, or Professional Business Subscription Services, the subscription applies to all peripheral devices (e.g. printers, cameras, home networks) that are attached to your personal computer at the time of purchasing the Subscription Services. Activation or troubleshooting of other peripheral devices (e.g. devices that are acquired after the date of Your Subscription Services purchase) may require an additional fee.
If you have purchased Family or Home Office Subscription Services, You may obtain Services for the limited number of personal computers, provided that all of those computers are located at a single physical address or, under the Family Plan only. Personal computers located at any other physical address cannot be added to the Family or Home Office Subscription.
If You have purchased Business Subscription Services, You may obtain Services for the permitted number of computers belonging to Your business. Each of Your computers covered by Your Business Subscription will receive a unique identifier. You may not obtain services for your business computers unless the identifier matches a record in our system. If you wish to remove one business computer from Your Business Subscription and substitute another business computer, please contact us as limitations can apply.
PRICING AND PAYMENT
a. Pricing and Fees. Support Desk America service fees and charges are supplied to you during the ordering process and are available on the Support Desk America Website unless otherwise provided for in this Agreement. You agree to pay the charges applicable to your selected Service plan, as well as any applicable taxes and other charges, including but not limited to activation fees, minimum service fees, no-show fees, fail to cancel fees, termination fees, other nonrecurring charges and set-up fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest, and charges due to insufficient credit or insufficient funds. Set up fees, activation fees, installation fees and other non-recurring fees, if applicable, shall be included in your first bill. Monthly recurring charges (subscription plans) shall be billed one month in advance; usage charges, if applicable, shall be billed in arrears, and pre-purchase plans shall be billed in advance, if applicable. Support Desk America or its agent shall bill you directly, or charge your credit card, as you request and as approved by Support Desk America. Support Desk America does not accept debit cards for payment of any charges or fees.
b. Discontinuation of Service for Nonpayment. Service to you may be denied or discontinued without prior notice at any time if your credit card provider denies or discontinues providing credit to you for any reason, or you fail to make payment when due or you fail to provide us with a new credit card expiration date when the existing one expires.
c. Late Fees. If any portion of your bill is not paid by the due date, Support Desk America shall have the right to charge you a late fee on unpaid balances and may also terminate or suspend your Service without prior notice. The late fee shall be the lesser of one and one-half percent (1.5 %) per month, or the highest rate permitted by law. In the event, Support Desk America utilizes a collection agency or resorts to legal action to recover due money. You shall reimburse Support Desk America for all expenses incurred to recover such monies, including attorneys' fees.
d. Local telephone, Toll and Long Distance Charges. Whether you are accessing the Service from your home or away from your home, you are responsible for all telephone charges.
e. Can change your service. You have the option to change your Service(s) at any time by notifying us, provided that you qualify for and comply with all requirements of that Service.
f. Service Without Resolution. Support Desk America shall use commercially reasonable efforts to troubleshoot, analyze, assess, correct or otherwise fix your computer, network or personal technology problem. If Support Desk America is unable to resolve your technology issues, you shall remain liable for all Service charges.
g. Unable to Create Online Connection. Support Desk America will not charge you if Support Desk America cannot connect with your computer in an attempt to provide remote computer support service. If you have prepaid for an annual or longer package, it will be your responsibility to have an internet service for Support Desk America to provide the required service on an ongoing basis during the term of the contract.
h. Minimum commitment: All Support Desk America subscription services require a minimum commitment as indicated on the Support Desk America Website under Pricing. Once the minimum commitment is met, Support Desk America subscription services shall automatically renew on a monthly basis until Support Desk America is notified, via phone or email from subscriber’s end to cancel service. Help sessions do not accrue. Each Support Desk America subscription shall be used by you only on one personal computer and such subscription shall not be transferred by you to any other personal computer or party.
i. Support Desk America support sessions may have a time limit as indicated in the product description and/or on the receipt. Support beyond this time limit may incur additional charges or fees if you choose to continue.
INDEMNIFICATION
Client shall defend, indemnify and hold harmless Support Desk America from and against all liabilities, damages, costs and expenses, relating to or arising from: (1) your breach of this Agreement; (2) your breach of any agreement with a Third Party Licensor; (3) Support Desk America’s access to or use of the Software on your behalf; (4) your use of the Services or the Software; (v) violation of applicable laws or regulations; (5) your use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet; (6) your negligent acts, errors, or omissions; (7) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement the Service, Software or the Internet; or (8) claims for infringement of any intellectual property rights arising from the use of the Services, Software, or the Internet.
NOTICES
a. Notices required under this Agreement shall be provided to the Support Service Department reachable via email at info@supportdeskamerica.com or by phone at 1-800-317-8199. Notices by Support Desk America to you shall be deemed given: (a) when sent to your registered email address, or (b) when deposited in the Postal mail addressed to you at last-known address or (c) when hand delivered to your home, as applicable.
b. With regard to electronic communications, you and Support Desk America further agree that: (a) the User ID and/or alias of a sender, contained in an electronic communication (“email”), is legally sufficient to verify the sender's identity and the authenticity of the communication; (b) an email sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.
GENERAL PROVISIONS
a. The parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination and shall remain in effect for a period of one (1) year thereafter or the period specified in this Agreement, if longer.
b. Support Desk America shall not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes.
c. You shall not assign or otherwise transfer this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be null and void. We may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
d. You and Support Desk America agree that the substantive laws of the State of California, without reference to its principles of conflicts of laws, shall be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement.
YOU AND SUPPORT DESK AMERICA CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN ORANGE COUNTY, CALIFORNIA FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE.
Except as otherwise required by law, including California laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service or Software must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
e. Support Desk America's failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
f. This Agreement and all other policies posted on the Website, which are fully incorporated into this Agreement by reference, constitute the entire agreement between you and Support Desk America with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
g. Satisfaction Statement. If you are not completely satisfied with any subscription setup or single incident session, Support Desk America will, upon your written request, provide you with two help sessions or a refund of the money after subtracting the number of service sessions provided so long as Support Desk America receives such written request within five (5) calendar days ("Notice Period") of such subscription setup or single incident session. If you do not notify us within such Notice Period, Support Desk America may provide you with a pro-rated refund if you have subscribed and paid for the Services for a number of service calls. If the package purchased is a term greater than six (6) months and you paid Support Desk America: for the entire term - a maximum of 50% refund can be given if the contract is cancelled by you within a period of 30 days. No refunds shall be given after a period of 30 days of the contract date.
Security
While we use reasonable security measures to deliver the Services, You understand and acknowledge that no data transmission over the Internet can be guaranteed to be 100% secure and in any event we cannot guarantee that any personal information you submit to us will be free from unauthorized intrusion.
Modifications to the Services
We reserve the right, to modify, terminate, change, suspend or discontinue any and all aspects of the Services, including Content, Software, features and/or hours of availability without any notice. Remember, we will not be liable to you or to any third party for doing so.
Proprietary Rights
Support Desk America respects the proprietary rights of software and hardware manufacturers and will not install or support unlicensed materials. The Services, and the Software and Content provided with the Services, are protected by law including copyright, trademark, service mark, patent or other proprietary rights and laws. Support Desk America is the copyright owner or licensee of the Services, Software, and Content, unless otherwise indicated. If you make use of the Services, Software or Content, other than as expressly provided herein, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material, patents or any other intellectual property by including them with the Services.
Electronic Communications
The information communicated on this Site constitutes an electronic communication. When You communicate with Us through the Site or other forms of electronic media, such as e-mail, You are communicating with Us electronically. You agree that Support Desk America.com, on behalf of itself and others who may be involved with delivering the Services (as applicable), may communicate electronically by e-mail and/or may make communications available to You by posting them on the Site, and that such communications, as well as notices, disclosures, agreements and other communications which We provide You electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by Us.
Notices and communications to Support Desk America must be sent to the applicable address given in these Terms or to info@supportdeskamerica.com.
PRIVACY POLICY
Support Desk America shall treat your personal information in accordance with its current Privacy Policy, as amended from time to time in the sole discretion of Support Desk America.
Service Availability and Limitations
The Services may not always be available in Your time zone or geographic location. The Services may not always be available due to system maintenance or Internet service disruptions.
In order to obtain Subscription Services, You must at all times have current and functional antivirus software in place and running on Your Device. Failure to maintain such software may result in additional charges and fees. In order to purchase Subscription Services, Your covered Device(s) must be virus free (as determined by Us) at the time You purchase the Subscription Service. If we determine that Your Device is infected by a virus, we may ask you to purchase a Service to clean Your Device prior to obtaining Subscription Services.
Support Desk America reserves the right to terminate Your Subscription Service, upon notice, if Support Desk America determines, in its sole business judgment, that Your Subscription Service is being used (a) fraudulently, (b) maliciously, (c) by any person other than You, (d) for any Device other than a registered system, (e) unreasonably, or (f) in excess of five (5) completed, in-scope Service incidents per any ninety (90) day period. In case Your Subscription Service is terminated, Support Desk America will refund You a pro rata portion of any fees that You have prepaid for the Subscription Services. Subscription Services may be subject to additional requirements, limitations, and restrictions depending on the subscription level You purchased. Please refer to the Site for information about those restrictions.
TERM AND TERMINATION
a. Effective Date and Term. This Agreement goes into effect upon your acceptance of this Agreement as set forth in Paragraph 1 and shall continue until terminated by either party as permitted by this Agreement. Billing for your Remote Support Service shall apply on an 'as used' basis.
b. Termination of Service.
c. Pay-as-you-go or Subscription Service. If you are a pay-as-you-go or subscription service customer, either you or Support Desk America may terminate this Agreement without giving notice to the other party. Termination by you shall be effective upon your notice to Support Desk America. Activation or set-up fees paid at the initiation of your service, if any, shall not be refundable. Termination by Support Desk America shall be effective thirty (30) days after the date of notice to you, except as otherwise provided in this Agreement. In the event of termination by Support Desk America, for any reason, you shall be required to pay the remaining balance of the charges applicable to your Service through the effective date of termination. You acknowledge that any Software that you may install as part of the Service may cease to operate, update or function properly after termination of any subscription.
d. Termination and/or Suspension by Support Desk America. If, in the sole discretion of Support Desk America: (a) you are in breach of any of the terms of this Agreement or any Third Party License or agreement (including but not limited to, all Support Desk America and its Third Party Licensors’ policies regarding abuse and acceptable use of the Service and the Software and all end user license agreements); (b) your use of the Service or the Software is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service or the Software, Support Desk America's network or a Third Party Licensors’ network, or the use and enjoyment of other users; (c) Support Desk America receives an order from a court to terminate your Service; (d) Support Desk America for any reason ceases to offer the Service or the Software; or (e) you are no longer a Support Desk America customer, then Support Desk America at its sole election may terminate or suspend your Service immediately without notice.
e. Terminated Account. Support Desk America, in its sole discretion, shall have the right to refuse and accept your request for Service, renewal or re-subscription following a termination or suspension of your use of the Service at any time.
Dealings with Third Parties
In the course of delivering the Services to You, We may refer You to third parties, or the websites of third parties, that offer products and/or services that may facilitate the resolution of Your Device support issues or otherwise be of potential assistance to You. These third parties and/or their websites may also be linked and/or displayed on the Site. Although, we may link or otherwise refer You to such products and services offered by third parties, unless expressly stated to the contrary, such references, links and/or displays in no way mean, imply, suggest or constitute any evaluation or approval by Us of those merchants or their products or services. We are not responsible in any way for any other Web sites, products, services or information. Your dealings with other entities promoted on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such other entity. You agree that Support Desk America shall not be responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or as a result of the promotion of such other entities on the Services. Likewise, any third parties that may refer You to the Services have no responsibility or liability for the Services provided by supportdeskamerica.com
AVAILABILITY OF SERVICE
a. The Service and Software you select may not be available at all times, and may not be available in the format generally marketed, and some personal computers may not be available to receive the Service even if initial testing showed that your connection was qualified. For Remote Personal Technology Support, we shall qualify your line for the maximum line rate available to your location based on our standard line qualification procedures.
b. Support Desk America, its suppliers and licensors may, at any time, without notice or liability to you, restrict in whole or in part the use of the Service or the Software or limit availability in order to perform maintenance activities and to maintain session control or for any other purpose.
LIMITATIONS ON USE OF THE SERVICE
a. You agree that your use of the Service, Software and the Internet, without limitation, is your sole responsibility and is solely at your own risk, and is subject to all applicable local, state, national and international laws and regulations.
b. You agree that the Internet is not owned, operated or managed by, or in any way affiliated with Support Desk America. Support Desk America is not responsible and has no control over the information or materials accessible via the Internet through use of the Service or the Software. You further agree that Support Desk America does not own or control all of the various facilities and communication lines through which service may be provided, nor does Support Desk America guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by Support Desk America or its Third Party Licensors.
c. You agree that Support Desk America cannot and does not guarantee or warrant that data and Software available for downloading through the Service shall be free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Service for the reconstruction of any lost data.
d. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. Support Desk America is not liable for invalid destinations, transmission errors, or corruption or security of your data.
e. You are not authorized to use any Support Desk America name or mark as a hypertext link to any Support Desk America website or in any advertising, publicity or in any other commercial manner without the prior written consent of Support Desk America. You understand that your ability to link to a website through the Service does not, in any way, represent or imply Support Desk America's approval of, or its determination of the quality of that product or service, and that links are provided for your convenience only. The links provided through the Service are maintained by their respective organizations, which are solely responsible for their content.
Submissions
All comments, feedback, information (other than Your personally identifiable information or billing information) or materials submitted to Support Desk America(“Submissions”) shall be considered non-confidential and Support Desk America's property. By providing such Submissions to Support.com, You agree to assign to Support.com, at no charge, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. Support Desk America shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. As part of any subscription Services purchased by You, You acknowledge and agree that Support Desk America may retain some of Your personally identifiable information or billing information for purposes of record retention and for purposes of billing any renewals of the subscription Services, which shall not be subject to the foregoing assignment provision.
You acknowledge that you are responsible for the Submissions that you provide, and that you have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright. You represent, warrant and agree that you shall not upload, post, transmit, distribute or otherwise publish through the Site any materials which are, do, or could reasonably be construed to be or do any of the following:
- • restrict or inhibit anyone from using and enjoying the Site or the Site’s services
- • are fraudulent, unlawful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, or that threatens or invites violence, or that is derogatory of others on the basis of gender, race, ethnicity, national origin, religion, sexual preference or disability;
- • constitute or encourage conduct that would constitute a criminal offense, give rise to potential civil liability or otherwise violate any local, state, national or international law;
- • violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or publicity or any other proprietary right;
- • contain a virus, spyware, or other harmful component;
- • contain embedded links, advertising, chain letters or pyramid schemes of any kind;
- • constitute or contain false or misleading indications of origin, endorsement or statements of fact; or
- • Contain sensitive, proprietary or confidential information about yourself or others.
Except as may be expressly permitted in connection with one of the Site’s services, You also may not offer to buy or sell any product or service on or through Your Submissions. We will not accept responsibility for any information included in any Submissions created or posted by third parties. You alone are responsible for the content and consequences of any and all of Your activities and You submit Submissions at Your own risk.
By submitting or sending Submissions to Us, You: (i) represent and warrant that the Submissions are not confidential or secret, and no confidential or fiduciary relationship is intended or created between You and Us in any way, (ii) represent and warrant that the Submissions are original to You, that no other party has any rights thereto, and that any “moral rights” in Submissions have been waived, and (iii) You grant Us and Our affiliates a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, copy, reproduce, modify, adapt, print, publish, translate, create derivative works from, distribute, perform and display such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed, including for promotional and/or commercial purpose, and to authorize others to do so. We cannot be responsible for maintaining any Submissions that You provide to Us, nor are We responsible for any information included in any Submissions (for example, without limitation, a blog post or any comments to blog(s) created or posted by Users), and We may delete or destroy any such Submissions at any time.
LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
A. IN NO EVENT, SUPPORT DESK AMERICA, ITS OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS, SUBSIDIARIES, ATTORNEYS OR AFFILIATES, OR ITS THIRD PARTY LICENSORS SHALL BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE , THE SOFTWARE OR YOUR DATA, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF SUPPORT DESK AMERICA OR ITS THIRD PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY THIRD PARTY. THE MAXIMUM CUMULATIVE LIABILITY OF SUPPORT DESK AMERICA TO YOU UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS PAID BY YOU DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING ANY CLAIM. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE SERVICES PROVIDED HEREUNDER.
B. THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
C. SUPPORT DESK AMERICA RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE OR THE SOFTWARE OR FOR YOUR BREACH OF THE AGREEMENT, INCLUDING ANY POLICIES OR END USER LICENSE AGREEMENTS RELATING TO THE SERVICE OR THE SOFTWARE.
D. Notwithstanding any language to the contrary in this Agreement, the Services and the Software, is provided to you "AS IS" and “AS AVAILABLE” and without any warranty from Support Desk America of any kind. SUPPORT DESK AMERICA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, SUITABILITY ACCURACY, SECURITY, NON-INTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO ADVICE, SUPPORT OR INFORMATION DELIVERED BY SUPPORT DESK AMERICA OR ITS REPRESENTATIVES TO YOU SHALL CREATE ANY WARRANTY.
E. SUPPORT DESK AMERICA DOES NOT WARRANT THAT THE SERVICE OR THE SOFTWARE PROVIDED BY SUPPORT DESK AMERICA HEREUNDER SHALL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR SHALL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. SUPPORT DESK AMERICA SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. SUPPORT DESK AMERICA MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE OR THE INTERNET. SUPPORT DESK AMERICA MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE, SOFTWARE AND THE INTERNET. DO NOT USE THE SERVICE OR THE SOFTWARE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF SOMEHOW AN ERROR OCCURS.