Important notice: We do not require a signed agreement. Your use of any services or resource provided by us, including this website, denote your complete agreement with and acceptance of these terms and conditions.
- INTRODUCTION TO THESE TERMS
1.1 West Desk is a service for businesses to delegate administration, organising, designing, marketing and other services. By registering for the West Desk service, you confirm that the West Desk services you will request will be integral to your business and that you are acting for purposes of your trade, business or profession.
1.2 Please read these terms and conditions (the “Terms”) and West Desk’s Privacy Policy carefully before you agree to register by means of this website (referred to in these Terms as “the Website”) to receive services from West Desk Private Limited (referred to in the Terms as “West Desk”). You are referred to as the “Client” in these Terms.
1.3 These Terms are applicable from the date on which you register as a client on the Website for a minimum period of one month (or, if you avail yourself of a free trial, the length of such free trial period), and continue to be applicable until the agreement constituted by these Terms is terminated in accordance with clause 14.
1.4 By clicking to accept or agree to the Terms when this option is made available to you, you accept and agree to be bound and abide by the Terms and our Privacy Policy. The Privacy Policy forms part of the Terms. If you do not want to agree to the Terms, you must not register as a client on the Website.
1.5 Your attention is drawn in particular to clause 12 and clause 13.1, which limit West Desk’s liability to you, the Client.
1.6 In the event of any comments or questions in relation to the Services or the Website, the Client should contact West Desk at any one of the following addresses hello@thewestdesk.com
1.7 West Desk is based in the India. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of India. Each party irrevocably agrees that the courts of India shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
- DEFINITIONS
2.1 The following definitions apply in these Terms.
Billday: the day of the month on which Client agrees by means of the Website to begin the Monthly Subscription Charge, and the same day in each subsequent month. In the event that the day of the month on which Client agrees by means of the Website to begin the Monthly Subscription Charge does not occur in any month (e.g. 30th in February), the last day of that month shall be substituted in its place as the Billday.
Brief: a request for Services, submitted by Client by means of the Website, setting out the Client’s requirements, including any applicable desired timescales for completion.
Charges: means (i) the Monthly Subscription Charge; and (ii) any additional time-based charges calculated in accordance with West Desk’s standard daily fee rates and agreed with the Client by means of the Website.
Client Material: all documents, information and materials provided by the Client relating to the Services as specified in the Brief.
Client Personal Data: all personal data (as defined in Data Protection Laws) comprised in Client Material.
Confidential Information: information that Client provides to West Desk (or to a assistant) in a Brief, that Client reasonably expects to be kept secret. This includes confidential details of Client’s business, and any payment card information provided by Client. document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Data Protection Laws: means as applicable and binding on the Client, or West Desk and/or the Brief (i) in the United Kingdom, the GDPR, and/or any corresponding or equivalent national laws or regulations; (ii) in member states of the European Union: the GDPR, and all relevant member state laws or regulations giving effect to or corresponding with any of them; and (iii) any applicable laws replacing, amending, extending, re-enacting or consolidating any of the above Data Protection Laws from time to time.
assistant: an individual or entity sub-contracted by West Desk to assist in providing the Services for a particular Brief.
GDPR: means the General Data Protection Regulation (EU) 2016/679.
Group: West Desk, its subsidiaries or holding companies from time to time and any subsidiary of any holding company from time to time. holding company: has the meaning given in clause 2.2 subsidiary: has the meaning given in clause 2.2
Hourly Charges: charges agreed with Client by means of the Website for any additional time to be spent in fulfilling the Services in excess of the time allocation represented by the Monthly Subscription Charge.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Monthly Subscription Charge: the monthly subscription charge in respect of the Services, as agreed to by Client by means of the Website and representing an agreed allocation of time to be spent each month in providing the Services.
Services: the services to be provided by West Desk under these Terms as set out in a Brief, together with any other services which West Desk provides or agrees to provide to the Client.
Time Budget: a maximum allocation of time, stated in a particular Brief, which the Client wishes to be decremented from its West Desk account in respect of that Brief;
Website: thewestdesk.com, or any West Desk mobile application, or any replacement or substitute for them notified to Client.
writing: includes email, SMS, the Website, or any other means of written communication agreed between Client and West Desk;
Work: all documents, products and materials developed by West Desk or its subcontractors in relation to a Brief in any form, including data, reports and specifications (including drafts).
2.2 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) as a nominee.
- BRIEFS
3.1 Each task which Client wishes West Desk to undertake shall be specified in a Brief. Briefs shall be processed in the following manner:
(a) the Client shall provide West Desk with a Brief, setting out the requirements and specifications of the services which it is requesting from West Desk, including: a description of what work is to be done; dates by which it is requested to be completed; any relevant Client Materials; and any Time Budget; and
(b) West Desk shall confirm to Client by means of email, the Website, SMS or by phone whether or not it accepts the Brief, or if any changes are required to the Brief in order for it to be accepted by West Desk.
3.2 Client acknowledges that West Desk may in its absolute discretion refuse to agree to accept or complete any Brief. Client acknowledges that without limitation, West Desk may refuse to accept or complete any Brief submitted in breach of clause 6.1 below.
3.3 Once the Brief has been agreed and signed in accordance with clause 3.1(b), no amendment shall be made to it except as agreed by the parties in writing.
3.4 In the event that West Desk reasonably suspects that a Brief has been submitted otherwise than in accordance with these Terms, it may cancel the Brief without liability to the Client and if so shall credit to the Client any Charges applied by West Desk in respect of time spent meeting any such Brief.
3.5 West Desk will endeavour to meet the Brief within any stated Time Budget. If it is unable to do so, it will notify Client of the additional time likely required to complete the Brief. Client shall then have the choice of purchasing such additional time allocation or abandoning the Brief (in which case West Desk shall be under no obligation to continue work on it).
- West Desk’S OBLIGATIONS
4.1 All Work produced in respect of the Services shall be produced with reasonable skill and care.
4.2 West Desk shall use reasonable endeavours to provide the Services, and to deliver the Work to the Client, in accordance with the Brief in all material respects.
4.3 West Desk shall use reasonable endeavours to meet any performance dates specified in the Brief, but any such dates shall be estimates only and time for performance by West Desk shall not be of the essence of these Terms or of any Brief.
4.4 Whilst West Desk will follow the instructions in the Brief, Client acknowledges that it shall have no control over the manner in which, or the location at which, the Services shall be provided, nor the choice of tools and equipment by which the Services will be provided.
4.5 West Desk will use all reasonable endeavours to ensure that the Website is free from viruses, trojans, or other malware.
4.6 Client acknowledges that the range of Services provided are neither unlimited nor fixed, and that West Desk may without liability (i) refuse to accept any Brief; and (ii) increase or reduce the scope of the Services at any time.
- WARRANTIES
5.1 West Desk is confident that it has exercised a reasonable level of due diligence in screening and selecting its employees. But West Desk undertakes a wide range of Briefs for a wide range of clients, using a wide range of assistants,. Work on the Briefs is provided by assistants, who are not employed in your business day to day, and who will inevitably have a subjective assessment of the best way to carry out the Brief. West Desk cannot and does not guarantee that all Work will be 100% error-free or comprehensive.
5.2 West Desk makes no warranty that:
(a) the Services will meet the Client’s requirements;
(b) the Website will be uninterrupted in its availability, timely, secure, or error-free;
(C) the Work will be error-free or comprehensive;
(d) any particular assistant will be available to carry out any Brief;
(e) the Client Material and Confidential Information will be 100% secure against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, despite West Desk taking appropriate technical and organisational measures intended to ensure such security; or
(f) the quality of any Work obtained by the Client through the Services will meet the Client’s expectations.
5.3 No advice or information, whether oral or written, obtained by Client from West Desk (including from any assistant) shall operate to create any warranty not expressly stated in these Terms.
5.4 To the maximum extent permitted by law, West Desk disclaims any and all implied warranties in respect of the Work, the Services and the assistants, except as expressly set out in these Terms.
- CLIENT’S OBLIGATIONS
6.1 The Client shall at all times:
(a) co-operate with West Desk in all matters relating to the Services;
(b) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the receipt by it of the Services;
(C) ensure that it has the right to submit Briefs, including any Intellectual Property Rights contained in it;
(d) not submit Briefs that it did not create or that it does not have permission to post;
(e) not submit Briefs that require the installation of any software beyond the standard Microsoft Office package; and
(f) refrain from submitting Briefs that, if completed, are likely to involve the infringement of any person’s Intellectual Property Rights or which might be offensive, illegal, defamatory or which might violate the rights, harm, or threaten the safety of any person.
(g) refrain from submitting Briefs that, if completed, are likely to involve the processing of personal data involving individual children, individuals’ criminal records, or any of the following: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.
6.2 If West Desk’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, West Desk shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
6.3 The Client shall be liable to pay to West Desk, on demand, all reasonable costs, charges or losses sustained or incurred by West Desk (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person, and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under these Terms, subject to West Desk confirming such costs, charges and losses to the Client in writing.
6.4 The Client warrants that it has the right to disclose the Confidential Information and the Client Material to West Desk and to authorise West Desk to use it for the purpose of providing the Services.
6.5 When the Client registers with the Website, the Client will be asked to choose login details for its account. The Client acknowledges and agrees that it is entirely responsible for safeguarding and maintaining the confidentiality of the username and password used to access its account. Client authorises West Desk to assume that any person using the Website with Client’s username and password is the Client or is authorised to act for the Client. Client agrees to notify West Desk immediately if it suspects or becomes aware of any unauthorised use of its account, or any unauthorised access to or misuse of its login details.
6.6 The Client agrees not to reproduce, duplicate, copy or re-sell the Services, the Website or any part of them.
6.7 The Client acknowledges that it is not entitled to direct or control the work of any assistant, or impose any specific time of day or location in which the Brief is to be fulfilled.
- EXCLUSIVITY
7.1 Client acknowledges that:
(a) West Desk has made substantial investments in finding and choosing skilled individuals or entities which West Desk considers to be suitable assistants, and matching them with Briefs as appropriate; and
(b) West Desk has a reasonable, legitimate interest in protecting that investment.
(C) West Desk has agreements with assistants which protect this investment by requiring that assistants obtain West Desk’s prior written consent before proposing or accepting any direct or indirect engagement with clients they have worked with. Accordingly, to the fullest extent permitted under applicable law, Client agrees that for a period of 9 months immediately following the last date of acceptance by West Desk of a Brief submitted under these Terms, Client shall not without the prior written consent of West Desk directly or indirectly solicit any assistant to work for Client directly or indirectly in any engagement or business arrangement.
7.2 West Desk shall have absolute discretion as to whether or not to grant the consent referred to in clause 7.1 above, which may be subject to financial conditions including payment of sums equivalent to (by way of example only) those specified in clause 7.3.
7.3 Client agrees in the event of breach by it of clause 7.1 above, Client shall pay to West Desk a sum equal to 100% of the Charges payable to West Desk in respect of all Briefs fulfilled by West Desk using the assistant in question in the 12 months preceding the date of the most recent Brief undertaken by West Desk using that assistant. The Client and West Desk confirm that these sums represent a genuine pre-estimate of West Desk’s loss for breach of clause 7.1.
- IF CLIENT IS UNHAPPY WITH THE SERVICES
8.1 If the Client is not satisfied with the Work or any other aspect of the Services, contact should in the first instance be made to hello@thewestdesk.com. If Client can demonstrate that a particular requirement of a Brief accepted by West Desk has not been met, but that Hourly Charges have been made (or Client’s allocation of time purchased by the Monthly Subscription Charge has been decremented) in respect of the requirement, West Desk shall either (at its option) arrange for the Work to be completed satisfactorily arrange for a credit of the time charged in respect of such unmet requirement.
8.2 Subscription and Refund Policy:
West Desk requires payment of a fee for use of certain portions of the Services and you agree to pay such fees.
Subscription. If you purchase a subscription to the Services, you will be charged the subscription fee, plus any applicable taxes, at the beginning of your subscription and automatically on each periodic renewal date until you cancel. By purchasing a subscription, you authorize West Desk to initiate recurring non-refundable payments until you cancel. You must cancel your subscription before it renews in order to avoid being charged the subscription fees for the next billing cycle. All payments will be processed using the Payment Information designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details to help prevent any interruption to your use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information. All fees and applicable taxes, if any, are payable in United States dollars for U.S. residents.
Trials. From time to time, we may offer promotions or free trials of the Services (“Trials”). West Desk may determine your eligibility for a Trial and withdraw or modify a Trial at any time without prior notice and with no liability to you. For some Trials, we’ll require you to provide your Payment Information prior to starting a Trial. By providing your Payment Information, you agree that we may automatically charge you for the Services at the end of the Trial and on each periodic renewal date until you cancel. If you do not want to be automatically charged, you must cancel your subscription prior to the end of the Trial.
Refunds. You may cancel your subscription at any time. You will be responsible for all subscription fees (plus any applicable taxes and other charges) incurred for the then-current subscription period. If you cancel, your right to use the Services will continue until the end of your then-current subscription period. Refunds are only issued at the discretion of West Desk, and we may or may not decide to process refunds depending upon the given circumstances.
Non-payment. Your Services subscription will remain in effect until it’s canceled or terminated under these Terms. If you don’t pay for your subscription on time, we reserve the right to suspend or cancel your subscription.
Changes to fees. We reserve the right to change the fees associated with your Services subscription but will send you advanced notice of these changes to the email address associated with your account.
General. By purchasing a subscription or signing up for a Trial, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you.
- CHARGES AND PAYMENT
9.1 The Client shall be solely responsible for the payment of the Charges.
9.2 All Charges shall be exclusive of VAT.
9.3 West Desk shall ensure that every assistant whom it engages on the Services records the amount of time spent on the Services.
9.4 The Client shall pay the total Charges to West Desk in advance by credit or debit card or via wire transfer without deduction or set-off. The Monthly Subscription Charge shall be payable on the Billday of each month.
9.5 The parties agree that West Desk may review and increase its Charges. West Desk shall give the Client written notice of any such increase in advance of the proposed date of that increase. If such increase is not acceptable to the Client, it may, within 10 days of the date of such notice, terminate the agreement constituted by these Terms by giving written notice to West Desk. Such termination shall take effect on the next Billday.
9.6 In the event that payment is not rejected or is for any reason (other than default or negligence of West Desk) not received in advance of the relevant Services being provided then, without prejudice to any other right or remedy that West Desk may have:
(a) the Client shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and
(b) West Desk may suspend all Services until payment has been made in full.
9.7 All sums payable to West Desk under these Terms shall become due immediately on its termination, despite any other provision. This clause 9.7 is without prejudice to any right to claim for interest under the law, or any such right under these Terms.
9.8 All amounts due under these Terms shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.9 In the event that following reasonable efforts on West Desk’s part to recover any sums owed to it under these Terms by the Client, West Desk may refer the matter to an accredited collections agency. West Desk shall be entitled to charge to Client any sums charged by such collection agency in respect of recovery of the outstanding sums.
- INTELLECTUAL PROPERTY RIGHTS
10.1 As between the Client and West Desk, all Intellectual Property Rights and all other rights in the Work shall be owned by West Desk. Subject to clause 10.3, West Desk licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make use of the Work and the Services for its own internal business uses (including for the purposes of providing its goods and/or services to third parties). In no circumstances shall Client be entitled to resell the Work to any third party without the prior written consent of West Desk.
10.2 For the avoidance of doubt, any Confidential Information of Client and any Client Material shall remain in the ownership of Client.
10.3 The Client acknowledges that, where West Desk does not own any or all of any pre-existing materials comprised in any Work, the Client’s use of rights in pre-existing materials is conditional on Client obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Client to use the Work.
- CONFIDENTIALITY AND West Desk’S PROPERTY
11.1 West Desk shall keep the Confidential Information disclosed to it confidential and, except for the purposes of providing the Services (including disclosing it to assistants, who may disclose it to their sub-contractors), or with the prior written consent of the Client, shall not:
(a) use or exploit the Confidential Information in any way;
(b) disclose or make available such Confidential Information in whole or in part to any third party; or
(C) copy, or otherwise record the Confidential Information.
11.2 The obligation in clause 11.1 shall not apply to any information which:
(a) is, or becomes, generally available to the public (other than as a result of disclosure by West Desk in breach of these Terms); or
(b) was available to West Desk on a non-confidential basis before disclosure by the Client; or
(C) was, is or becomes available to West Desk on a non-confidential basis from a person who, to West Desk’s knowledge, is not bound by a confidentiality agreement with the Client, or otherwise prohibited from disclosing the information to the Client; or
(d) was lawfully in the possession of West Desk before the information was disclosed to it by the Client; or
(e) the parties agree in writing is not confidential or may be disclosed; or
(f) is developed by or for West Desk, independently of the information disclosed by the Client; or
(g) is trivial, obvious or useless.
11.3 West Desk may disclose the Client’s Confidential Information to members of its Group and to those of its assistants who need to know the Confidential Information for the purposes of providing the Service.
11.4 West Desk may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including any securities exchange) or by a court or other authority of competent jurisdiction. However, to the extent it is legally allowed to do so, it must give the Client as much notice of that disclosure as possible.
11.5 At the reasonable request of the Client, West Desk shall destroy or return the Confidential Information to the Client and any materials (whether in written or other recorded form) containing, or making use of the Confidential Information.
- LIMITATION OF LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Terms limits or excludes West Desk’s liability for:
(a) death or personal injury caused by its negligence;
(b) its fraud or fraudulent misrepresentation; or
(C) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
12.2 Subject to clause 12.1, West Desk shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms for:
(a) loss of profits;
(b) loss of sales or business;
(C) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information;
(g) any indirect or consequential loss.
12.3 Subject to clause 12.1 and clause 12.2, West Desk’s total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms shall be limited to:
(a) $200 per claim or series of connected claims; and
(b) in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, the equivalent of two times the total Charges paid by the Client in that period.
12.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.
- DATA PROTECTION AND PRIVACY
13.1 West Desk strongly recommends that Clients do not include in any Brief or communicate to any assistant any details of any bank account, or other financial accounts, or any payment card information. Client acknowledges that West Desk shall have no liability to Client in respect of any losses arising out of Client’s provision to assistant of any such information.
13.2 In respect of any Client Personal Data, the Client acknowledges and agrees that:
(a) where Client Personal Data is provided to West Desk by the Client (not provided to a assistant directly), West Desk shall be the data processor (as defined in Data Protection Laws) of it, and West Desk’s processing of such Client Personal Data shall be subject to the West Desk Data Processing Terms set out below in clause 16;
(b) where Client Personal Data is provided to a assistant directly by the Client, the assistant shall be the data processor of it, and Client may agree with assistant that assistant’s processing of such Client Personal Data shall be in accordance with such data processing terms relevant to compliance with Article 28 of GDPR as the Client and the assistant may agree in writing; and
(C) in the absence of any such data processing terms being agreed between the Client and the assistant, the assistant-Client Data Processing Terms available here shall apply to the processing unless and until Client and assistant agree between them any other data processing terms.
- TERMINATION
14.1 Without affecting any other right or remedy available to it, either party may terminate the agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 14 days after being notified to make such payment;
(b) the other party commits a material breach of any term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(C) the other is affected by an event or process of insolvency, or ceases to conduct business; or
(d) the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms.
14.2 Either party may terminate the agreement constituted by these Terms at any time by notice of not less than one full Monthly Subscription Charge period. In the event that notice is given part-way through a Monthly Subscription Charge period, the agreement will terminate on the Billday following the Billday which follows the date on which notice is given.
- CONSEQUENCES OF TERMINATION
15.1 On termination of these Terms:
(a) the Client shall immediately pay to West Desk all of West Desk’s outstanding unpaid invoices and interest. In respect of Services supplied but for which no invoice has been submitted, West Desk may submit an invoice, which shall be payable immediately on receipt;
(b) Client may, from one month from the date of such termination, cease to have access to any information in respect of any particular Brief;
(C) the following clauses shall continue in force: clause 7 (Exclusivity), clause 10 (Intellectual property rights), clause 11 (Confidentiality and West Desk’s property), clause 12 (Limitation of liability), clause 15.1, clause 1.7 (Governing law and jurisdiction).
15.2 Termination or expiry of these Terms shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
- DATA PROCESSING TERMS
16.1 In this clause, Personal Data, Data Subject, Data Processor and Data Controller shall bear the meanings ascribed to them in Data Protection Laws.
16.2 To the extent that West Desk shall process Client Personal Data as Data Processor of the Client, it shall do so in compliance with the obligations placed on it as Data Processor under Data Protection Laws.
16.3 The Client shall at all times comply with all Data Protection Laws in connection with the processing of Client Personal Data. The Client shall ensure all instructions given by it to West Desk in respect of Client Personal Data shall at all times be in accordance with Data Protection Laws. The Client shall indemnify and keep indemnified West Desk against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs arising out of or in connection with any breach by the Client of its obligations under this clause 16.
16.4 West Desk shall:
(a) only process the Client Personal Data in accordance with this Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
(b) if West Desk believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws, promptly inform the Client and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
16.5 Taking into account the state of technical development and the nature of processing, West Desk shall implement and maintain appropriate technical and organisational measures to protect the Client Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access, as set out on this page.
16.6 West Desk shall inform the Client of any addition, replacement or other changes of third parties (including assistants) authorised by West Desk to have logical access to and process Client Personal Data in order to provide the Services (“Sub-processors”) and shall provide the Client with the opportunity to reasonably object to such changes on legitimate grounds. The Client acknowledges that these Sub-processors are essential to provide the Services and that objecting to the use of a Sub-processor will prevent West Desk from providing the Services to the Client. West Desk will enter into a written agreement with the Sub-processor imposing on the Sub-processor obligations comparable to those imposed on West Desk under this clause 16, including appropriate data security measures. In case the Sub-processor fails to fulfil its data protection obligations under such written agreement with West Desk, West Desk will remain liable towards the Client for the performance of the Sub-processor’s obligations under such agreement. The Client provides general written authorisation to West Desk to engage Sub-processors as necessary to perform the Services.
16.7 West Desk shall (at the Client’s cost):
(a) assist the Client in ensuring compliance with the Client’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to West Desk; and
(b) taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Client Personal Data.
16.8 West Desk may transfer Client Personal Data processed under this Agreement outside the European Economic Area (“EEA”) or Switzerland as necessary to provide the Services. If West Desk transfers Client Personal Data to a jurisdiction for which the European Commission has not issued an adequacy decision, West Desk will ensure that appropriate safeguards have been implemented for the transfer of Client Personal Data in accordance with Data Protection Laws.
16.9 West Desk shall notify the Client without undue delay and in writing on becoming aware of any security breach in respect of any Client Personal Data.
16.10 On the end of the provision of the Services relating to the processing of Client Personal Data, at the Client’s cost and the Client’s option, West Desk shall either return all of the Client Personal Data to the Client or securely dispose of the Client Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires West Desk to store such Client Personal Data.
16.11 This clause 16 shall survive termination or expiry of this Agreement.
16.12 The Client shall ensure that: Data subjects are provided with appropriate information regarding the processing of their Client Personal Data, including by means of offering a transparent and easily accessible public privacy notice.
16.13 Processing of the Client Personal Data by West Desk under these Terms shall be as set out below.
(a) Subject-matter of processing: Processing of Client Personal Data for the purposes of storage and onward transmission to assistants.
(b) Duration of Processing: For the duration of the provision of the Services.
(C) Nature and purpose of the processing: storing Client Personal Data comprised in Client Material for the purposes of onward transmission to assistants who will undertake processing in respect of a Brief.
(d) Type of Personal Data: Any personal data comprised in Client Materials submitted direct to West Desk by the Client (not including Client Materials submitted direct to assistants). This will not include ‘special categories of data’ under Article 9 of GDPR.
(e) Categories of Data Subjects: Data subjects identified in personal data comprised in Client Materials submitted direct to West Desk by the Client.
- FORCE MAJEURE
17.1 Force Majeure Event means any circumstance not within a party’s reasonable control including:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(C) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts;
(h) non-performance by suppliers, subcontractors and assistants; and
(i) interruption or failure of utility service.
17.2 Provided it has complied with clause 17.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under these Terms by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of these Terms or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
17.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
17.4 The Affected Party shall: (a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
17.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate these Terms by giving 1 week’s written notice to the Affected Party.
- VARIATION
18.1 Subject to clause 18.2, no variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 18.2 West Desk may revise these Terms from time to time and will notify Client of any change in advance by means of the Website. West Desk will only revise the Terms applicable to the then-current Monthly Subscription Charge billing period to the extent that they are necessary to reflect the changes in relevant laws and regulatory requirements. All other revisions will apply from the following Monthly Subscription Charge billing period.
- MISCELLANEOUS
19.1 No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.2 A reference to writing or written includes e-mail and interaction through the Website. Any obligation on a party not to do something includes an obligation not to allow that thing to be done. References to clauses are to the clauses of these Terms.
19.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
19.4 The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
19.5 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms.
19.6 If any provision or part-provision of these Terms is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.7 No person who is not a party to this agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
19.8 The agreement constituted under these Terms constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms. Nothing in this clause shall limit or exclude any liability for fraud.
19.9 The Client agrees that any terms and conditions inconsistent with or in addition to these Terms, including any Purchase Order terms and conditions purported to be imposed by Client, shall not be applicable.
19.10 The agreement constituted under these Terms is personal to the Client and the Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms. West Desk may at any time on 30 days’ notice assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under these Terms.
19.11 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.12 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19.13 No one other than a party to these Terms, their successors and permitted assignees shall have any right to enforce any of its terms.
West Desk
Terms of Service
Effective Date: October 29, 2022
At West Desk (“West Desk”), our mission is to find new ways for technology and design to lighten your load, reclaim your time, and improve your well-being. These Terms of Service (“Terms”) cover your use and access to our website, software, mobile app, communications, products, and services (collectively, the “West Desk Services” or “Services”).
Your agreement is with West Desk Tech Private Limited.
Our Privacy Policy explains how we collect and use your personal data. By visiting our site or using any of our Services, you agree to these Terms and acknowledge and agree to the collection, use, and disclosure of your personal data in accordance with our Privacy Policy on behalf of yourself and all Authorized Users (defined below) who use the Services under your account.
Important Notice Regarding Arbitration for U.S. residents: WHEN YOU AGREE TO THESE TERMS, YOU AGREE TO RESOLVE ALL DISPUTES WITH WEST DESK TECH THROUGH SMALL CLAIMS COURTS OR THROUGH ARBITRATION ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS OR CLASS ACTIONS. PLEASE REVIEW SECTION 16 “DISPUTES” FOR DETAILS REGARDING ARBITRATION.
- Your Use of the Services
Eligibility. In order to use the Services, you need to (1) be 18 years or older, and (2) have the power to enter into legally binding contracts under applicable law. You will not allow any person or entity to access or use the Services using your account other than individuals who have been designated and authorized by you (each an “Authorized User”). You may permit Authorized Users to use the Services, provided that you ensure that each Authorized User complies with all applicable terms and conditions of the Terms, and you are responsible for acts or omissions by Authorized Users in connection with their use of the Services.
Using our Services. The Services are the property of West Desk. So long as you comply with these Terms, we grant you a limited, nonexclusive, non-transferable, revocable license to use the Services for your personal, non-commercial use. To the extent any component of the Services may be offered under an open source license, we’ll make that license available to you and the provisions of that license may expressly override some of these Terms.
Our intellectual property rights. Our Services are protected by copyright, trademark and other applicable laws. West Desk and its licensors exclusively own all right, title, and interest in and to the Services, including all associated intellectual property rights. These Terms don’t grant you any right, title, or interest in the Services, West Desk’s trademarks, logos and other brand features.
Your responsibilities. Your use of our Services must comply with our “User Rules and Prohibitions” outlined in Section 10 below. Content in the Services may be protected by others’ intellectual property rights. You may not copy, upload, download, or share content unless you have the right to do so. West Desk may review your conduct for compliance with these Terms, but we are not obligated to do so. You may use our Services only as permitted by applicable law, including export control laws and regulations.
Service modifications. We’re constantly modifying and improving our Services. West Desk reserves the right to modify, suspend, or discontinue functions and features of the Services, at any time, without notice or liability to you.
Account password and security. You are responsible for safeguarding your password to the Services and keeping your account information current and accurate. Don’t share your account credentials or give others access to your account, except to Authorized Users. You understand that you are responsible for all use of your username and password on the Services, and if your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by a third party, you must notify us immediately and change your password.
- Telephone, Text, and Video Communications
Consent to telephone and text communications. By creating an account, you agree to receive communications from West Desk, including text message and telephone calls to the telephone number you provided, and push notifications. These communications may be live or pre-recorded messages sent by or on behalf of West Desk, its representatives. Message and data rates may apply. You may also opt out of receiving SMS messages from us by replying “STOP” from the mobile device receiving the messages.
Calls and texts to third parties at your direction: If you direct West Desk, your West Desk Specialist, or any West Desk representative or third party West Desk Partner (as defined below) to reach out to a third party on your behalf or at your direction, you represent and warrant that:
(i) you have the legal right to provide that third party’s personal information to West Desk for the purposes contemplated under these Terms, including receiving text messages and calls;
(ii) if you provide a third party’s phone number for the purpose of receiving calls or SMS messages from West Desk, your West Desk Specialist, or any West Desk representative or third party West Desk Partner, you have obtained the consent of that third party to receive such calls or text messages;
(iii) such information is accurate, true, and up-to-date; and
(iv) you authorize West Desk, your West Desk Specialist, or any West Desk representative or third party West Desk Partner to act as your agent in conducting the outreach you requested.
Consent to monitoring and recording. You acknowledge and agree that telephone calls, text messages, video communications, in-app messages, and other communications between you and West Desk, including its agents and affiliates, may be monitored and recorded for purposes of quality control and training, as well as providing and improving our Services.
- E-Sign Disclosure for U.S. residents
By creating an account, you consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing us at hello@thewestdesk.com with “Revoke Electronic Consent” in the subject line. To view and retain a copy of this disclosure, you will need (i) a device with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email us at hello@thewestdesk.com with contact information and your mailing address.
- Feedback
We welcome any feedback you have about our Services, but please note that we may use any comments, information, ideas, concepts, or suggestions in any communication you send us without any obligation to you.
- Payment Information
We may ask you to supply certain information to engage in transactions as part of your use of the Services.
- The West Desk Services
West Desk requires payment of a fee for use of certain portions of the Services and you agree to pay such fees.
Subscription. If you purchase a subscription to the Services, you will be charged the subscription fee, plus any applicable taxes, at the beginning of your subscription and automatically on each periodic renewal date until you cancel. By purchasing a subscription, you authorize West Desk to initiate recurring non-refundable payments until you cancel. You must cancel your subscription before it renews in order to avoid being charged the subscription fees for the next billing cycle. All payments will be processed using the Payment Information designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details to help prevent any interruption to your use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information. All fees and applicable taxes, if any, are payable in United States dollars for U.S. residents.
Trials. From time to time, we may offer promotions or free trials of the Services (“Trials”). West Desk may determine your eligibility for a Trial and withdraw or modify a Trial at any time without prior notice and with no liability to you. For some Trials, we’ll require you to provide your Payment Information prior to starting a Trial. By providing your Payment Information, you agree that we may automatically charge you for the Services at the end of the Trial and on each periodic renewal date until you cancel. If you do not want to be automatically charged, you must cancel your subscription prior to the end of the Trial.
No refunds. You may cancel your subscription at any time. You will be responsible for all subscription fees (plus any applicable taxes and other charges) incurred for the then-current subscription period. If you cancel, your right to use the Services will continue until the end of your then-current subscription period. Refunds are only issued if required by law.
Non-payment. Your Services subscription will remain in effect until it’s canceled or terminated under these Terms. If you don’t pay for your subscription on time, we reserve the right to suspend or cancel your subscription.
Changes to fees. We reserve the right to change the fees associated with your Services subscription but will send you advanced notice of these changes to the email address associated with your account.
General. By purchasing a subscription or signing up for a Trial, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you.
- Third Party Merchants
Payment authorization. You agree that West Desk does not assume responsibility for any goods and/or services provided by third party merchants and made available through the Services. If you purchase, use, or access goods or services from third party merchants through the Services, you do so at your own risk.
- User Content
West Desk may, in its sole discretion, remove or take down any User Content you upload or submit to the Services for any reason, including violation of these Terms, without notice to you.
- User Rules and Prohibitions
We’ve established a few ground rules for you to follow when using the Services to make sure the Services are enjoyable for everyone. You agree not to do – or assist anyone in doing – the following:
Post, upload, publish, submit, or transmit any User Content that: (i) infringes, misappropriates, or violates a third party’s patent, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation; (iii) is fraudulent, false, misleading, or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
Use, display, mirror, or frame the Services or any individual element within the Services, West Desk’s name, any West Desk trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without West Desk’s express written consent;
Access, tamper with, or use non-public areas of the Services, West Desk’s computer systems, or the technical delivery systems of West Desk’s providers;
Attempt to probe, scan, or test the vulnerability of any West Desk system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by West Desk or West Desk’s providers or any other third party (including another user) to protect the Services;
Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, etc.) other than the software and/or search agents provided by West Desk or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, or other form of solicitation using the Services;
Use any meta tags or other hidden text or metadata using West Desk’s trademark, logo URL, or product name without West Desk’s express written consent;
Use the Services, or any portion thereof, for any commercial purpose or in any manner not permitted by these Terms;
Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services;
Interfere with, or attempt to interfere with, the access of any user, host, or network, including sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services or from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
West Desk is not obligated to monitor access to or use of the Services or to review or edit any content, but we reserve the right to do so. We reserve the right to remove, suspend, delete, or disable access to any content or user account, at any time and without notice. We also reserve the right to refuse to support a requested to-do, at any time and without notice, if we, at our sole discretion, consider it offensive, abusive, illegal, in violation of these Terms or any posted policies, or if we believe at our sole discretion that a user is intentionally submitting an excessive and unreasonable number of to-dos. We have the right to investigate violations of these Terms and any conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
- Copyright Policy (for U.S. residents)
We respect the intellectual property rights of others and ask that you do too. In appropriate circumstances we will terminate the account of any user who repeatedly infringes or is believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright Policy for more information.
- Termination
These Terms will continue to apply to you until terminated by either you or West Desk. You are free to stop using the Services at any time and may cancel and/or terminate your subscription and these Terms by visiting Accounts page at www.thewestdesk.com. West Desk may in its sole discretion delete your account, terminate these Terms, or suspend access to or terminate your account, at any time and without notice, including in the event of your actual or suspected unauthorized use of the Services, breach of these Terms, or if we withdraw or terminate the Services. If you or West Desk terminate these Terms, or if West Desk suspends or terminates your access to the Services, you agree that West Desk shall have no liability or responsibility to you, and West Desk will not refund any amounts that you have already paid to the fullest extent permitted by law. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 4, 6, 7(a), 7(c), 8, 9, 10, 12, 13, 14, 15, 16, 18 and 19.
- Disclaimer of Warranties
West Desk strives to provide great services, but there are certain things we can’t guarantee. You acknowledge and agree that to the fullest extent permitted by law, the SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, West Desk AND ITS EMPLOYEES, AGENTS, CONSULTANTS, CONTRACTORS, OR AFFILIATES MAKE NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, ABOUT THE SERVICES, AND EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any information or content on the Services. Finally, you acknowledge and agree that West Desk has the right to unilaterally abandon development of the Services at any time without any obligation or liability to you or any third party.
- Indemnity
To the fullest extent permitted by law, you agree to indemnify and hold West Desk and its affiliates, and their respective officers, directors, employees, and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services; (b) your violation of these Terms or any applicable law or regulation; (c) your User Content; (d) your interaction with any user; (e) your request for products and/or services from a third-party merchant, including any injuries, losses, or damages of any kind arising in connection with such third-party merchant products and/or services; or (f) your request for West Desk Partner services, including any injuries, losses, or damages of any kind arising in connection with such West Desk Partner services. West Desk reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate in asserting any available defenses.
- Limitation of Liability
IN NO EVENT SHALL WEST DESK OR ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONSULTANTS, CONTRACTORS, OR AFFILIATES BE LIABLE TO YOU OR ANY OTHER PARTY FOR (a) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, (b) ANY LOSS OF USE, DATA, BUSINESS, GOODWILL, OR PROFITS, (c) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR (d) THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER WEST DESK OR ANY OF ITS EMPLOYEES, AGENTS, CONSULTANTS, CONTRACTORS, OR AFFILIATES HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, WEST DESK’S, ITS EMPLOYEES’, AGENTS’, CONSULTANTS’, CONTRACTORS’, OR AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM SHALL BE STRICTLY LIMITED TO $100.00 USD. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND West Desk.
- Disputes (for U.S. residents)
Mandatory arbitration of disputes. You and West Desk agree that any dispute, claim or controversy arising out of your use of the Services, or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, including any dispute relating to these arbitration provisions themselves, will be resolved through final and binding individual arbitration by a single arbitrator and not in a class, representative, or consolidated action or proceeding, except as set forth under the “Exceptions to agreement to arbitrate” below. This includes disputes arising out of or relating to interpretation or applicability of this “Mandatory arbitration of disputes” section, including its enforceability, revocability, or validity. This arbitration provision shall survive termination of these Terms.
Arbitration procedures. The American Arbitration Association (AAA) will administer the arbitration under its Consumer Arbitration Rules. The arbitration will be held in the United States county where you live, unless we both agree to another location or to desk arbitration.
Arbitration costs. The AAA rules will govern payment of all arbitration fees. West Desk will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you.
Injunctive and Declaratory Relief. Except as provided in Section 16(f) below, the arbitrator shall determine all issues of liability on the merits of any claim and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that either party seeks public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Exceptions to agreement to arbitrate. Notwithstanding the mandatory arbitration agreement in Section 16(a), either you or West Desk may (1) assert claims, if they qualify, in a U.S. small claims court; or (2) bring an individual action seeking only injunctive or other equitable relief from a court to prevent or stop unauthorized use or abuse of the Services or infringement or misappropriation of intellectual property without first engaging in arbitration described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts of the Northern District of California to resolve your claim.
NO CLASS ACTIONS OR CLASS ARBITRATIONS. You may only resolve disputes with West Desk on an individual basis and may not bring a claim as a plaintiff or class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If this specific provision is found to be unenforceable, the entirety of this “Disputes” section will be deemed void.
- Third party interactions
App stores. You acknowledge and agree that the availability of the Services is dependent on the third party from which you received the application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that these Terms are an agreement between you and West Desk and not with the App Store. West Desk is solely responsible for its mobile app, including the content thereof and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Services, you agree to pay all fees (if any) charged by the App Store in connection with the Services. You acknowledge and agree that Apple has no obligation to furnish any maintenance and support services with respect to our mobile app. In the event of any failure of the mobile app to conform to any applicable warranty, you may notify Apple, and Apple will refund the mobile app purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile app. You agree to comply with, and your license to use the Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies). You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates/subsidiaries) is an intended third party beneficiary of the Terms and has the right to enforce the terms and conditions of the Terms against you.
- Gifting Program
From time to time, West Desk may allow individuals to purchase the West Desk Services as a gift (“Gifts”). The price (including applicable taxes), terms, and duration of such Gifts may vary, but will be presented to the Gift purchaser at the time of purchase. Purchaser’s payment method will be charged immediately following the purchase. After the Gift purchase is complete, West Desk will notify the Gift recipient of the Gift (including the name of the Gift purchaser, relevant terms, conditions, and duration of the Gift). The purchaser of the Gift is solely responsible for providing accurate name and contact information of the Gift recipient, and West Desk takes no responsibility for mistaken name or contact information provided by the Gift purchaser. West Desk reserves the right to refuse to honor any Gift in the event of a disputed charge, other failure of consideration, or in the event that West Desk at its sole discretion believes the Gift was obtained fraudulently. Gifts may not be transferred, assigned, or resold without express written authorization from West Desk. Gifts are redeemable only toward West Desk Services and may not be redeemed for cash or any other form of currency or credit. Gifts are non-refundable and have no cash value except where required by applicable law. Gifts are not exchangeable for any other products or services except as described herein and in the Gift program terms. Unless otherwise indicated at the time of purchase, Gifts do not expire prior to their redemption, and no inactivity fees or service fees will apply. West Desk is not responsible for any loss or damage resulting from lost, stolen, or fraudulently obtained Gifts or their unauthorized use. Please contact us at hello@thewestdesk.com (for U.S. residents) if you have any questions.
- Miscellaneous
Governing law (for U.S. residents). These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California except for its conflicts of laws principles. Except as otherwise set forth in the “Disputes” section above, the exclusive jurisdiction for all disputes, claims, or controversies that you and West Desk are not required to arbitrate will be the state and federal courts located in the Northern District of California. You and West Desk each waive any objection to jurisdiction and venue in such courts.
Compliance with laws. You acknowledge that the Services are subject to the export control laws and regulations of the United States. You warrant that you will comply in all respects with United States as well as any applicable local, state, national, and foreign laws governing your use of the Services.
Entire agreement. These Terms constitute the entire agreement between you and West Desk with respect to the subject matter of these Terms, and supersedes all prior oral and written understandings, communications, or agreements not specifically incorporated herein.
Waiver, severability, and assignment. West Desk’s failure to enforce a provision in these Terms is not a waiver of its right to do so later. If a provision in these Terms is found void or unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. West Desk may assign its rights to any of affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
Modification. West Desk may modify these Terms from time to time. If a revision materially affects your legal rights, we will notify you in advance (e.g., via email). If you don’t agree to the updates, please cancel your account before the updates become effective. By continuing to use or access the Services after the updates go into effect, you agree to be bound by the revised Terms.