EGGHEAD IT TERMS OF SERVICE
- ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE
This EggHead IT, LLC. (“EggHead IT”, “company”, “we”, “us” or “our”) Terms of Service (“Service Terms”) are provided to you (“Customer”) in connection with the EggHead IT services (the “Services”) that you have purchased and provided by EggHead IT, its agents/representatives and/or through www.eggheadit.com, the “Site”, (individually and collectively, the “Service”) are subject to the terms and conditions in these Terms of Service (these “Terms”). These Terms constitute a legal agreement between you and EggHead IT and are sometimes referred to herein as the “Agreement”.
By agreeing to these Terms, including by a click-through or other agreement, or by using any aspect of the Company or Site, you expressly acknowledge that (a) you have read these Terms and agree to all of their terms and conditions, (b) you are 18 years of age or older, (c) you have the right, authority and capacity to enter into this Agreement, and (d) if you are entering into this Agreement on behalf of an entity, you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You further agree to receive all communications, agreements and notices that we provide in connection with the company or site electronically, including by e-mail, SMS text message, or by posting them on the Site or otherwise making them available through the Site. You agree that all communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You must agree to these Terms in order to use our Services or the Site, and if you do not accept these Terms then you may not use any aspect of our Services or the Site.
These Terms contain important language governing your use of our Services or the Site. They address, among other things, information about how we provide the Site, how we or you may terminate the Services and/or access to the Site, the requirements imposed on you when managing your User account (an “Account”) and how we handle disputes (which includes a class action waiver and binding arbitration in most cases).
- DESCRIPTION OF SERVICE
EggHead IT will provide the Services at the Customer’s location, or, in some cases, via telephone or remote support.
- SERVICE HOURS
EggHead IT Eggsperts (“Eggspert”, “Technician”, “Tech”) are generally available to be dispatched during regular business hours: Monday through Friday, 8 a.m. to 6 p.m., excluding holidays. To schedule service, please by contact us via email at email@example.com, or by telephone at 1-760-205-0105. Emergency technical support for urgent service calls may be available but is not guaranteed.
- SERVICE JURISDICATION
Additional charges may apply for on-site support at a customer’s location that is more than 25 miles from EggHead IT’s primary service location ZIP code of 92270.
These Service Terms and the provisions hereof may not be amended, supplemented, waived, or modified in any way, except by a written instrument signed by authorized officers of the parties hereto. No amendment, supplement, waiver, or modification shall be affected by the acknowledgment or acceptance of a purchase order, invoice, or other forms (including but not limited to computer-based telecommunication systems) stipulating different terms.
EggHead IT may update these Terms at any time in its sole discretion, and EggHead IT will post the updated version of these Terms on the Site. You understand and agree that you will be deemed to have accepted the updated Terms if you use any aspect of the Site after the updated Terms are posted. EggHead IT may change the terms and conditions of the Service from time to time. Upon any change in the terms and conditions of the Agreement, EggHead IT will notify you by posting the changes to www.eggheadit.com . EggHead IT reserves the right to modify or discontinue the Service with or without notice to Customer. EggHead IT shall not be liable to Customer or any third party should EggHead IT exercise its right to modify or discontinue the Service. Customer’s continued use of the Service constitutes an affirmative agreement by Customer to abide and be bound by these Service Terms and its modifications. If at any point you do not agree to any portion of these Terms, you must immediately stop using the Site. Disputes arising under these Terms will be resolved in accordance with the version of these Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
- SERVICE LOCATION AND DEVICE ACCESS
An EggHead IT Eggspert must receive full access to the computer(s) and/or peripheral(s) to be serviced, access to Customer’s residence or place of business, Customer’s consent and cooperation to enter Customer’s residence or business, and a safe working environment, working space and electrical power. You hereby grant permission for EggHead IT, the Site, and it’s Eggspert’s to monitor your computer or other applicable device (including, but not limited to, your device’s memory) and to communicate information, including, without limitation, your Account information, to EggHead IT’s servers for the purposes of analyzing your device’s performance during use of the Site or EggHead IT’s services. Additionally, EggHead IT and the Site will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Site. If an EggHead IT Eggspert arrives at the scheduled service time and determines that he/she does not reasonably have the access, cooperation, or safe working area described in the previous sentence, then services may be denied and the time spent travelling to Customer’s destination will be charged to the Customer.
- LIMITATION OF REMEDY
UNDER NO CIRCUMSTANCES SHALL EGGHEAD IT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES COSTS, PROFITS, LOST SAVINGS OR EARNINGS, LOST OR CORRUPTED DATA, OR OTHER LIABILITY ARISING OUT OF, OR RELATED TO, THE SERVICES PROVIDED BY EGGHEAD IT OR OUT OF THE INSTALLATION, DE-INSTALLATION, USE OF, OR INABILITY TO USE YOUR COMPUTER
EQUIPMENT, HARDWARE, PERIPHERALS, OR THE NETWORK RESULTING FROM THE SERVICES PROVIDED HEREUNDER.
- RELEASE OF LIABILITY
YOU AFFIRMATIVELY RELEASE AND HOLD EGGHEAD IT HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY, OR DAMAGE THAT YOU OR THE OWNER OR LESSEE MAY SUFFER, INCLUDING BUT NOT LIMITED TO, ANY LOSS OF ANY DATA AND THE NON-FUNCTIONING OF ANY COMPONENT OR ELEMENT OF YOUR EQUIPMENT OR PERIPHERALS RESULTING FROM EGGHEAD IT’S PERFORMANCE OR NON-PERFORMANCE OF SERVICES. IF A COURT OF COMPETENT JURISDICTION FINDS THAT EGGHEAD IT IS LIABLE FOR DAMAGES, REGARDLESS OF THE DISCLAIMERS AND WAIVERS DESCRIBED HEREIN, SUCH DAMAGES SHALL BE LIMITED TO NO MORE THAN THE TOTAL EGGHEAD IT CHARGED YOU FOR ANY PARTICULAR SERVICE AND SHALL CONSTITUTE LIQUIDATED DAMAGES AND ARE A REASONABLE ESTIMATE OF DAMAGES TO YOU.
- WARRANTY OF AUTHORITY
Customer represents and warrants that the company on behalf of which this Service Terms is entered into is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has the requisite power and authority to execute and deliver, and to perform its obligations under, this Service Terms. Customer represents and warrants that this Service Terms has been duly authorized, executed and delivered by Customer and constitutes a valid and binding obligation of the company on behalf of which this Service Terms is entered, enforceable against such party according to its terms. The execution of this Service Terms by Customer and the performance of Customer’s obligations and duties hereunder do not and will not violate any agreement to which the company on behalf of which this Service Terms is entered into is a party or by which it is otherwise bound.
EggHead IT may hire or contract with third party service providers or other subcontractors of their choice to assist that party in fulfilling its obligations pursuant to this Service Terms.
- Provision of the Company and Site
You are responsible for any Internet connection, data usage and telecommunications fees and charges that you incur when accessing the Site. You acknowledge and agree that EggHead IT may make changes to any aspect of the Site at any time without notifying you in advance.
- Termination of the Site Access
EggHead IT reserves the right to deny use of the Site to any person or entity at EggHead IT’s sole and absolute discretion. You acknowledge and agree that EggHead IT may stop providing any aspect of the Site or restrict your use of the Site at any time, without notifying you in advance, for any reason or no reason. If EggHead IT disables your access to your Account, you may be prevented from accessing the Site, your Account details or any materials contained in your Account.
- User Accounts and Security
14.1. User Account. To access certain aspects of the Site, you must have an Account. You can create an Account by completing the registration process on the Site.
You may be required to provide information about yourself as part of the registration process or your continued use of the Site. You agree that any registration information that you submit to EggHead IT will be correct, accurate and up-to-date. You shall not select or use as a username a name (a) of another person with the intent to impersonate that person; (b) subject to any rights of a person other than you with appropriate authorization; or (c) that is otherwise offensive, vulgar or obscene.
14.2. User Account Security. Maintaining your Account security is very important. You are solely responsible for maintaining the confidentiality of your Account password and for all activities that are conducted via your Account. You agree to notify EggHead IT immediately if you become aware of any unauthorized use of your password or of your Account.
14.3. User Account Sharing or Transfers. Accounts are registered to you personally and may not be transferred at any time under any circumstances. You should not share your Account with, or disclose your password to, anyone else.
14.4. Deactivation by You. You have the right to deactivate your account at any time. You may deactivate your account by emailing us at firstname.lastname@example.org, or by calling us at 1-760-205-0105. We may maintain a record of account and order history for deactivated accounts.
14.5. Termination by EggHead IT. EggHead IT may terminate your Account at any time for any reason or no reason, including if: (a) EggHead IT determines that you are (i) in breach of or otherwise acting inconsistently with these Terms or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to EggHead IT; (b) EggHead IT determines it is required by law to terminate your Account; or (c) EggHead IT decides to stop providing the Site or critical portions of the Site. When terminating your Account, EggHead IT may delete the Account and all the information in it. You have no ownership rights to your Account.
14.6. Effect of User Account Deactivation. If you voluntarily deactivate your Account, you may reactivate that Account at any time by contacting us via email at email@example.com, or by telephone at 1-760-205-0105. Accounts terminated by EggHead IT for any type of abuse including, without limitation, a violation of these Terms, may not be reactivated for any reason without the consent of EggHead IT, which may be withheld in EggHead IT’s sole and absolute discretion.
- Cancellation and Rescheduling
Our cancellation and rescheduling policies are posted at https://www.eggheadit.com/cancellation-policy and may be updated from time to time without notice.
- Pricing and Payments
16.1. Fees and Payments. All prices, fees (the “Fees”) and other amounts for EggHead IT’s standard on-site or remote services provided, for individual (home/residential) users, are flat fee based. EggHead IT’s Business standard on-site or remote services provided, for business clients, are billed at an hourly amount/rate. All non-standard (Out of Scope) services shall be hourly fee based. All amounts shall be expressed and paid in United States Dollars. All Fees are subject to change at any time without notice; no Fee is confirmed until the checkout process is complete. The Fees may include a Site fee, in which case such Site fee will be indicated as a line item at checkout. Except as otherwise expressly set forth herein or as expressly approved by EggHead IT in writing in its sole discretion, all payments are due immediately due upon receipt, and payments made are final and non-refundable and a User shall not have the right to cancel its purchase for any reason. If you use PayPal or any other payment or financial mechanism (“Payment Provider”), the applicable Payment Provider agreement governs your use of such Payment Provider, and you should refer to that agreement, and not these Terms, to determine your rights and liabilities with respect thereto. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. All information that you provide to us or our third-party payment processors must be accurate, current and complete. You will also be responsible for paying any applicable taxes relating to payments that you make. EggHead IT shall have no liability or responsibility to you or any other third party in connection with the accuracy of the Payment Provider information provided by you or your use of any Payment Provider (including any fees charged by such Payment Provider in connection with such use).
16.2. Payment Processing. When you make a Booking, we may, and reserve the right, to place a hold on the credit card that you provide to us at the time of Booking, such hold in the amount of the anticipated charge for the applicable Booking. Upon your marking the Booking as complete via the mobile app for Techs or other method facilitated by EggHead IT such credit card will be charged if payment was not made via other means on the Site. You may change the payment method at any time prior to job completion by emailing us at firstname.lastname@example.org, or by calling us at 1-760-205-0105. Fees for cancellations and rescheduled Bookings, in accordance with the cancellation and rescheduling policies referred to in Section 15, will be charged to the credit card provided at the time of Booking.
16.3. Failed Transactions. In the event that EggHead IT is unable to successfully charge any linked payment instrument, EggHead IT will notify you via email. Upon EggHead IT’s notification to you of such failure, you agree to link a new, valid payment instrument as soon as possible but in any event within three (3) business days. Your EggHead IT Account may be disabled until a valid payment instrument is provided and the outstanding uncharged balance is resolved by EggHead IT. EggHead IT is not responsible for any charges imposed by the issuer of your payment instrument as a result of any failed charge by EggHead IT. To the extent that EggHead IT is unable to successfully charge any payment instrument linked to your Account as payment for authorized transactions for more than thirty (30) days, you understand and agree that EggHead IT may assess a late fee of $35.00, or 1.5% of the past due amount, per month, and may employ a collection agency or other business in an effort to collect any outstanding debts and fees associated with your User Account, and you will not contest the use of a third party to collect the debt and fees owed to EggHead IT. You agree that you will be responsible for any legal, court, arbitration or collection agency fees associated with rectifying your account and all monies owed thereunder. You agree that EggHead IT, or any agency or business employed by EggHead IT, has the right to contact you and your heirs via telephone, email or in-person using the information you provided upon registration or during any contact with EggHead IT, in an effort to collect any monies and fees owed under your account, whether specifically referenced in these Terms or not, and such contact may be made in a manual or automated fashion.
16.4. EggHead IT Support Plans.
(a) If you purchase a monthly or annual support plan (a “Support Plan”), you will be charged the support fee, plus any applicable taxes, plus set-up fee (if applicable) and other charges (“Support Fee”), at the beginning of your Support Plan (all EggHead IT Support Plans are offered in 12, 24, or 36 month terms only) and each support period (e.g., monthly or annually, as specified when you purchase such Support Plan) thereafter. Support Plans and Support Fees are described in more detail at https://www.eggheadit.com/plans, and may be updated from time to time without notice (except that the monthly fee for any “Annual Plan, Paid Monthly” (if such option is chosen, will remain locked in for the first year of such Support Plan).
(b) Support Plans become active as soon as your initial payment is processed. If you choose to pay Annually, the “Annual Plan, Prepaid” option, the entire applicable annual Support Fee plus applicable taxes will be charged at the initial payment. If you choose to pay Monthly, the “Annual Plan, Paid Monthly” option, the applicable first month’s Support Fee plus set-up fee will be charged at the initial payment, and thereafter the monthly Support Fee plus applicable taxes will be charged each month for the duration of the applicable year for that annual Support Plan.
(c) Upon the expiration of this term, if no notice is given to terminate or to not renew this Support Plan, your Support Plan will automatically renew for an additional 12 months and continue to do so until either party gives notice to not-renew the Support Plan (e.g. at the end of the one-year period for an annual Support Plan). Renewal rates are subject to change, but you will be notified of any change in your rate and be provided with the option to cancel in accordance with these Terms. Plan auto-renewal may be disabled at any time (but must be done on or prior to the last business day before the auto-renewal is scheduled to take effect in order to avoid being charged for such renewed term), however the plan will remain active for the remainder of the annual plan period and you will be responsible for the applicable charges for the remaining months of the annual plan period. You may turn off the auto-renewal option by contacting EggHead IT support at email@example.com. If you elect not to renew, your right to use the Sites under the Support Plan will continue until the end of your then current support period and will then terminate without further charges.
(d) Payment failures will result in immediate deactivation of the applicable Support Plan(s). EggHead IT Services will not be available to Users with a deactivated plan due to payment failure. Any outstanding payments will need to be made in order to reactivate the applicable Support Plan and bring your account current.
16.5. Gift Certificates. EggHead IT may offer gift certificates for purchase (“Gift Certificates”). Gift Certificates are redeemable only as payment for a Booking or a Support Plan. Gift Certificates have no cash value and are not redeemable for cash unless otherwise required by law. Gift Certificates must be presented (or the applicable identification number entered) at the time of payment and any available balance will be applied to your purchase. Gift Certificates do not expire and there are no inactivity, dormancy or service fees associated with Gift Certificates. You agree that you will comply with all Gift Certificate terms and conditions. Gift Certificates are not replaceable if lost or stolen. Gift Certificates cannot be used for previous purchases, credits, or the purchase of Gift Certificates, and cannot be used to make a payment towards third party items. We reserve the right to limit quantities of Gift Certificates purchased by any person or entity and to cancel a Gift Certificate if we believe that the Gift Certificate was obtained through fraudulent or unauthorized means. No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Certificate. Unused Gift Certificate balances are not transferable, and you may not sell a Gift Certificate or otherwise barter for its exchange although you may give a Gift Certificate to someone else as a gift. A Gift Certificate is void if copied, altered, transferred, purchased or sold. Purchases of Gift Certificates are final and not refundable. We reserve the right to correct the balance of a Gift Certificate if we believe that a billing error has occurred, and we disclaim all liability for any such billing errors. Gift Certificates and their use are subject to these Terms and use of a Gift Certificate constitutes acceptance thereof. Applicable terms and conditions are subject to change without notice. If the laws pertaining to a Gift Certificate require additional or different terms and conditions, then such terms and conditions shall apply. For questions or additional information, contact us at firstname.lastname@example.org. In the event you do not use your Gift Certificate for a certain period of time, we may be required to turn over the remaining Gift Certificate balance to a state under such state’s unclaimed or abandoned property law. Although your Gift Certificate does not expire, if we are obligated to turn over the remaining balance of your Gift Certificate under a state’s unclaimed property law, by operation of law we will be released from any further liability or obligation with respect to your Gift Certificate and you may be required to contact the state’s unclaimed property administrator to attempt to recover your unused Gift Certificate balance. To protect your right to continue to use your remaining Gift Certificate balance, we will make reasonable efforts to exempt your Gift Certificate from state unclaimed property laws.
- Restrictions and Conditions of Use
17.1. Use Restrictions. EggHead IT permits you to view and use the Site solely for your own personal or limited commercial use, as applicable, in either case not inconsistent with the intended purpose of the Site. Furthermore, you agree that you will not:
(a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site;
(b) sell, assign, rent, lease, act as a service bureau, or grant rights in the Site, including, without limitation, through sublicense, to any other person or entity without the prior written consent of EggHead IT;
(c) make any false, misleading or deceptive statement or representation regarding EggHead IT or the Site;
(d) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site (or any servers, systems or networks connected to the Site) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Site or any other person’s or entity’s use of the Site (or any servers, systems or networks connected to the Site);
(e) attempt to gain unauthorized access to the Site, accounts registered to other Users, or any servers, systems or networks connected to the Site;
(f) use the Site for any commercial purpose unless consistent with these Terms and the intended use of the Site;
(g) use the Site to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful;
(h) use the Site to upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message;
(i) breach any agreements you enter into with any third parties;
(j) use the Site for any unlawful, prohibited, abnormal or unusual activity as determined by EggHead IT in its sole discretion;
(k) use the Site to engage in any activity that (i) constitutes harassment or a violation of privacy or threatens other people or groups of people; (ii) is harmful to children in any manner; (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (iv) violates any applicable law, ordinance, rule, regulation, treaty or self-regulatory guidelines;
(l) improperly obtain or attempt to improperly obtain any information or data from the Site including, without limitation, email addresses or mobile phone numbers of other Users;
(m) intercept, examine or otherwise observe any proprietary communications protocol used by the Site, whether through the use of a network analyzer, packet sniffer or other device; or
(n) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, any aspect of the Site.
18.1. Links from the Site. The Site may contain links to websites operated by independent third parties. EggHead IT provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of EggHead IT and EggHead IT is not responsible for the content available on the other websites or services. Such links do not imply EggHead IT’s endorsement of information or material on any other website and EggHead IT disclaims all liability with regard to your access to and use of such linked websites. You understand and acknowledge that your access and use of linked websites and the services provided through these websites is governed by the terms of service and other agreements posted on such websites.
18.2. Links to the Site. Unless otherwise set forth in a written agreement between you and EggHead IT, you must adhere to EggHead IT’s linking policy as follows: (a) the appearance, position and other aspects of any link to the App or the Site may not be such as to damage or dilute the goodwill associated with EggHead IT’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with EggHead IT; and (c) when selected by a User, the link to the Site must display the Site on full-screen and not within a “frame” on the linking website. EggHead IT reserves the right to revoke its consent to the link at any time and in its sole discretion (including any link on any social media networking Site). Furthermore, EggHead IT reserves the right to revoke or modify any link (including any vanity link) to the Site or otherwise related to your Account (including any link on any social media networking Site).
- EggHead IT Intellectual Property
19.1. Trademarks. The EggHead IT name and logo are trademarks and service marks of EggHead IT. Unless permitted in a separate written agreement with EggHead IT, you do not have the right to use any of EggHead IT’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
19.2. Ownership. You acknowledge and agree that EggHead IT, or its licensors, owns all right, title and interest in and to the Site, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Site is protected by United States and international copyright laws. Further, you acknowledge that the Site may contain information that EggHead IT has designated as confidential and you agree not to disclose such information without EggHead IT’s prior written consent.
19.3. Feedback. You may choose to, or EggHead IT may invite you to, submit comments, bug reports, ideas or other feedback about the Site or any modifications, features or improvements thereto (“Feedback”). You agree that EggHead IT shall own any and all Feedback and EggHead IT shall have the right to use, in any manner and for any purpose whatsoever, any and all Feedback. You hereby assign to EggHead IT all right, title and interest that you may acquire in and to any Feedback.
19.4. Repeat Infringer Policy; Copyright Complaints. In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of Users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Site infringes any copyright that you own or control, you may notify EggHead IT as follows:
To: EggHead IT, LLC
Address: 72877 Dinah Shore Dr, Suite 103; Rancho Mirage, CA 92270
Such notice must contain the following information:
- your address, telephone number, and email address;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the alleged infringing material is located;
- a statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
- Submitted Content
21.1. EggHead IT is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Site or any materials submitted or made available through the Site via any function which allows a User to post or share content (which shall include, without, limitation, any photograph, image or other visual likeness of you) (“Submitted Content”). By using the Site, you agree that your Submitted Content may be viewable by other Users. Submitted Content is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Site. In particular, you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. EggHead IT may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Site or its Users, or otherwise enforce the terms of these Terms. Further, EggHead IT may in its sole discretion remove such content and terminate your Account if you submit any content that is in breach of these Terms. You acknowledge that EggHead IT has the right to pre- screen your Submitted Content but has no obligation to do so. At EggHead IT’s sole discretion, any Submitted Content may be included in the Site in whole or in part in modified form.
21.2. EggHead IT does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant EggHead IT a perpetual, irrevocable, non-terminable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Site and EggHead IT’s (and its successors’ and affiliates’) business, including, without limitation, for promoting, marketing and redistributing part or all of the Site (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each User a non-exclusive license to access your Submitted Content through the Site while the Submitted Content is made available through the Site. You may take down any of your Submitted Content at any time; however, you acknowledge and agree, that EggHead IT may still have access to such Submitted Content and that the above license granted by you to EggHead IT will remain in effect despite your removal of the Submitted Content from the Site. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section.
21.3. You acknowledge that your Submitted Content is your sole responsibility. You agree that, under no circumstances, will EggHead IT be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Site.
- CUSTOMER’S RESPONSIBILITY TO BACK-UP DATA
Customer agrees that prior to EggHead IT servicing any Customer equipment it is Customer’s responsibility to (1) back-up the data, software, information or other files stored on Customer’s computer disk drives, peripherals, MP3 player, DVD player, camcorder, digital camera and/or on any other electronic storage device; and (2) remove all videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media from Customer’s product. Customer agrees that whether or not Customer requests back-up services from EggHead IT and/or its third party service provider, neither EggHead IT nor its third party service provider shall be liable under any circumstances for any loss, disclosure, alteration or corruption of any data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media.
- LIMITATIONS TO SERVICE
EggHead IT shall not be liable for any failure or delay in performance due to any cause beyond its control. EggHead IT and/or its third party service providers reserve the right to refrain from providing the Services ordered and instead refund Customer’s payment, wholly or in part, on the basis that the minimum system requirements are not met or the technical needs (including wiring or overcoming physical or technical barriers) or industry regulations and laws including but not limited to HIPAA compliance and Gramm-Leach-Biley Act or other requirements of the Customer are unusual or extensive and beyond the scope of these Service Terms, as determined by EggHead IT.
- NO ENDORSEMENT; LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
24.1. EggHead IT represents and warrants that the Services (a) will be performed in a good and workmanlike manner, using the degree of skill, care, and judgment consistent with customarily accepted good business practices, and (b) will be free from defects. This limited warranty is valid for a period of ninety (90) days following the date the Services were performed. To make a claim under this limited warranty for any Services performed, contact us at email@example.com and we will arrange for a Tech to re-perform the Services. Such re-performance shall be the sole remedy for any claims made under this limited warranty.
24.2. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK AND THAT, EXCEPT AS SET FORTH IN SECTION 24.1, (A) THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EGGHEAD IT EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, (C) EGGHEAD IT MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE, AND (D) EGGHEAD IT DOES NOT REPRESENT OR WARRANT THAT (I) YOU WILL BE ABLE TO ACCESS OR USE THE SITE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (II) THAT OPERATION OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) YOUR USE OF THE SITE WILL MEET YOUR REQUIREMENTS; (IV) DEFECTS IN THE OPERATION OF THE SITE WILL BE CORRECTED; OR (V) THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
24.3. CUSTOMER IS RESPONSIBLE FOR (A) OBTAINING ALL PERMITS, LICENSES AND OTHER PERMISSIONS, IF ANY, THAT MAY BE REQUIRED TO BE OBTAINED FOR THE REPESECTIVE SERVICES TO BE PERFORMED, AND (B) CONFIRMING THAT ANY TECH PERFORMING SERVICES FOR SUCH CUSTOMER POSSESSES ALL REQUISITE PERMITS AND TRADE LICENSES THAT MAY BE REQUIRED FOR THE PERFORMANCE OF SUCH SERVICES. EGGHEAD IT ASSUMES NO RESPONSIBILITY FOR A CUSTOMER’S FAILURE TO OBTAIN OR CONFIRM SUCH PERMITS, LICENSES OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS. WE ENCOURAGE YOU TO CONFIRM ANY SUCH REQUIREMENTS AND TO ASK TO SEE A COPY OF ANY LICENSES IF APPLICABLE.
24.4. NEITHER EGGHEAD IT NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, STOCKHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “EGGHEAD IT PARTIES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SITE AND YOU HEREBY RELEASE EGGHEAD IT PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH EGGHEAD IT OR THE SITE.
24.5. EGGHEAD IT DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY TECH(S), CUSTOMER(S) OR OTHER USER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY TECH(S) ARE MADE SOLELY AT THE DISCRETION OF THE TECH AND EGGHEAD IT HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE TECH(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT EGGHEAD IT SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE TECH TO YOU AS A RESULT OF YOUR USE OF THE SITE.
- LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EGGHEAD IT AND THE OTHER EGGHEAD IT PARTIES SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, EVEN IF EGGHEAD IT OR THE OTHER EGGHEAD IT PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL THE LIABILITY OF EGGHEAD IT OR ANY OF THE OTHER EGGHEAD IT PARTIES EXCEED, IN THE AGGREGATE, THE GREATER OF FIVE HUNDRED DOLLARS ($500) OR THE FEES ACTUALLY PAID BY CUSTOMER YOU FOR THE SERVICES.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
You agree to defend, indemnify and hold EggHead IT and the other EggHead IT Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Site; or (b) your breach of these Terms or any other policies that EggHead IT may issue for the Site from time to time. You further agree to cooperate as required by EggHead IT in the defense of any claim. EggHead IT reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of EggHead IT.
- Governing Law; Jurisdiction
These Terms are governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and EggHead IT agree that, except as otherwise provided in Section 28 below, the state and federal courts located in Indio, California will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of the Site and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, EggHead IT shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
- Binding Arbitration
28.1. Arbitration Procedures. You and EggHead IT agree that, except as provided in Section 28.4 below, all disputes, controversies and claims related to these Terms or the Site (each a “Claim”) shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 28 and the JAMS Rules, the terms in this Section 28 will control and prevail.
Except as otherwise set forth in Section 28.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and EggHead IT will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (a) you and EggHead IT may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
28.2. Location. The arbitration will take place in Indio, California, unless the parties agree to video, phone or internet connection appearances.
28.3. LIMITATIONS. YOU AND EGGHEAD IT AGREE THAT ANY ARBITRATION SHALL BE LIMITED TO THE CLAIM BETWEEN EGGHEAD IT AND YOU INDIVIDUALLY. YOU AND EGGHEAD IT AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
28.4. Exceptions to Arbitration. You and EggHead IT agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of EggHead IT’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
28.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
28.6. Severability. You and EggHead IT agree that if any portion of this Section 28 is found illegal or unenforceable (except any portion of Section 28.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 28.4 is found to be illegal or unenforceable then neither you nor EggHead IT will elect to arbitrate any Claim falling within that portion of Section 28.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Indio, California, United States of America, and you and EggHead IT agree to submit to the personal jurisdiction of that court.
29.1. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and EggHead IT as a result of these Terms or your use of the Site.
29.2. Assignment. EggHead IT may assign its rights under these Terms to any person or entity without your consent. The rights granted to you under these Terms may not be assigned without EggHead IT’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
29.3. Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms shall be given full force and effect.
29.4. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 28.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
29.5. No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by EggHead IT of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
29.6. Notices. All notices given by you or required under these Terms shall be in writing and sent to firstname.lastname@example.org.
29.7. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Site, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
29.8. Equitable Remedies. You acknowledge and agree that EggHead IT would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
29.9. Entire Agreement. This writing is intended by the parties as the final and binding expression of their Service Terms and agreement and is a complete and exclusive statement of the terms thereof and supersedes all prior negotiations, representations and agreements. If any provision of this Service Terms is held to be unenforceable by a court of competent jurisdiction, such provision shall be more narrowly and equitably construed so that it becomes legal and enforceable, and the entire Service Terms shall not fail on account thereof, and the balance of the Service Terms shall continue in full force and effect.
Last Revised – November 11, 2020