This document describes the terms and conditions governing your use of Testimonial Tree, Inc (“TT”) online testimonial service, including shared components (collectively the “Service”). As part of the Service, TT will provide you with use of the Service, including a browser interface, transmission, access and storage. For reference, a Definitions section is included at the end of this Agreement.
1. Privacy & Security; Disclosure
TT’s privacy and security policies may be viewed at http://www.testimonialtree.com. TT reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. TT occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. When you become a paying customer of the Service, you agree that TT can disclose the fact that you are a paying customer. If service is terminated, TT agrees to remove any disclosures that Customer was a paying customer.
2. License Grant & Restrictions
TT hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by TT and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service in any way; or (ii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses can be shared or used by more than one individual User but the service is limited to usage for the web sites listed in the attached Order Form and its users.
You may use the Service only for your commercial business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
The Service offers integration capabilities via embedded web links. The number of embedded links you can make per account is unlimited.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify TT immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to TT immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another TT user or provide false identity information to gain access to or use the Service.
4. Account Information and Data
TT does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not TT, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and TT shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Vendor will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination and you have paid in full all undisputed outstanding invoices.
5. Intellectual Property Ownership
TT alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the TT Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the TT Technology or the Intellectual Property Rights owned by TT. The TT name, the TT logo, and the product names associated with the Service are trademarks of TT or third parties. Any right or license to use them shall be granted separately in writing.
6. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made annually in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are noncancelable and all amounts paid are nonrefundable. All pricing terms are confidential, and you agree not to disclose them to any third party.
7. Billing and Renewal
TT charges and collects in advance for use of the Service. TT will renew and issue an invoice to you each year on the subsequent anniversary. The renewal charge will be equal to the license fee in effect during the prior term, unless TT has given you at least 60 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted by TTs. TT’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on TT’s income.
You agree to provide TT with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, TT reserves the right to terminate your access to the Service in addition to any other legal remedies.
8. Non-Payment and Suspension
In addition to any other rights granted to TT herein, TT reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for licenses during any period of suspension. If you or TT initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that TT may bill you for such unpaid fees.
TT reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that TT has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 60 days or more delinquent.
Suspension of termination will not occur if there is dispute related to billing. The Service will remain and the charges will continue to incur until such dispute is resolved.
9. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. You may cancel the TT service at any time, giving one months’ notice. Either party may terminate this Agreement, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. You agree and acknowledge that TT has no obligation to retain the Customer Data, and may delete such Customer Data, more than 90 days after termination.
10. Termination for Cause
Any breach of your payment obligations or unauthorized use of the TT Technology or Service will be deemed a material breach of this Agreement. TT, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that TT has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
11. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. TT represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online TT help documentation under normal use and circumstances.
12. Mutual Indemnification
You shall indemnify and hold TT, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that TT (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release TT of all liability and such settlement does not affect TT’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
TT shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by TT of its representations or warranties; or (iii) a claim arising from breach of this Agreement by TT; provided that you (a) promptly give written notice of the claim to TT; (b) give TT sole control of the defense and settlement of the claim (provided that TT may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to TT all available information and assistance; and (d) have not compromised or settled such claim. TT shall have no indemnification obligation, and you shall indemnify TT pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
13. Disclaimer of Warranties
THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BTTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TT AND ITS LICENSORS.
14. Internet Delays
TT’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
15. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
17. Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
TT and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
TT may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in TT’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in TT’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to TT (such notice shall be deemed given when received by TT) at any time by any of the following: letter sent by confirmed facsimile to TT at the following fax number 1-314-431-5715; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to TT at the following address: Testimonial Tree, Inc., 21184 Braxfield Loop, Estero, FL 33928, Attn: Chief Executive Officer.
19. Assignment; Change in Control This Agreement may not be assigned by you without the prior written approval of TT but may be assigned without your consent by TT to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
This Agreement shall be governed by Florida law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Lee County, Florida. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and TT as a result of this agreement or use of the Service. The failure of TT to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by TT in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and TT and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
As used in this Agreement and in any Order Forms now or hereafter associated herewith: “Agreement” means these terms and any Order Forms; “Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service, such as game archetypes; “Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service; “Effective Date” means the date of this Agreement; “Initial Term” means the initial period during which you are obligated to pay for the Service; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “License Administrator(s)” means those Users designated by you to administer your use of the Service; “License Term(s)” means the period(s) during which a specified User is licensed to use the Service pursuant to the Order Form(s); “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms in written form, specifying, among other things, other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); “TT” means collectively Testimonial Tree, Inc., a Florida corporation, having its principal place of business at 21184 Braxfield Loop, Estero FL 33928; “TT Technology” means all of TT’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by TT in providing the Service; “Service(s)” means the TT’s Testimonial Tree developer installed lead management system, or other, developed, operated, and maintained by TT, accessible via http://www.testimonialtree.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by TT, to which you are being granted access under this Agreement, including the TT Technology and the Content; “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by TT at your request).