Terms of Service
Revised/updated: December 2019
TERMS OF SERVICE
Welcome to Testimonial Tree!
Before using our Services, please carefully read this Services Agreement. You and Testimonial Tree, Inc. may be referred to individually as a “Party” or collectively as the “Parties.” Testimonial Tree, Inc. may be referred to individually as “Testimonial Tree”, “we”, “us”, or “our”. You may be referred to individually as “Subscriber”, “you”, “your”, or “yours”. Capitalized words in this Services Agreement are defined terms with definitions for those terms located in applicable portions of the Services Agreement.
This Services Agreement is subject to revision from time to time. If we make changes, we will notify you by posting an update at http://get.testimonialtree.com/. If you object to the changes to the Services Agreement, you must cease using the Services. If you proceed to use the Services after notice is posted, such use constitutes (i) your acknowledgement of the changes to the Services Agreement and (ii) your agreement to be bound by the updated Services Agreement.
Acceptable Use Policy
Our Acceptable Use Policy (“AUP”) is located at http://get.testimonialtree.com/. Our AUP is incorporated into this Services Agreement by this reference. You need to carefully review and agree to the provisions of our AUP before using our Services. By using our Services, you acknowledge and agree to each and every term within the AUP as if fully stated in this Services Agreement.
Your Responsibility for Data
You are responsible for all activity occurring under your account and must abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of our Services, including those related to your Data, international communications, and the transmission of technical, protected, or regulated information.
You must notify us immediately of any unauthorized use of your password or account, and any known or suspected breach of security.
Account Information and Data
Unless otherwise provided herein, we do not own your Data, but (except for PHI Data) you grant to Testimonial Tree a perpetual, irrevocable, unlimited, non-exclusive, world-wide, fully-paid-up, royalty-free right and license to the Data to use it for any purpose. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of your Data.
Testimonial Tree will is not liable for the deletion, correction, destruction, damage, loss, or failure to store any Data.
In the event this Services Agreement is terminated (other than by reason of your breach of this Services Agreement), we will make available to you a file of your Data within ninety (90) days of termination of this Services Agreement, contingent upon your timely request. You agree and acknowledge that we have no obligation to retain your Data, and may delete it ninety (90) days after termination without any liability to you. We may refuse to provide a file of your Data to you if you have unpaid or outstanding invoices.
Intellectual Property Ownership
We own the rights, title, and interest, including related intellectual property rights, in and to Testimonial Tree, Inc., including (i) proprietary software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, tangible and intangible materials, and information, developed by the Service Provider and used to deliver and perform the Services (our “Technology”), (ii) the audio and visual information, documents, software, products, and services contained or made available to you in the course of using our Services, and (iii) all Testimonial Tree, Inc. marks and copyrighted materials (our “Content”).
We welcome your suggestions, ideas, enhancement requests, feedback, and recommendations (your “Feedback”), which relate to our Services. You agree we may use your Feedback without restriction and without obligation to you, even in the event this Services Agreement is terminated, and in the event that there is any doubt about the ownership of any Feedback, you hereby grant Testimonial Tree a perpetual, fully paid up, royalty-free, sublicensable, transferable, world-wide right and license to use such Feedback for any purpose we see fit.
Fees, Billing, Renewal
You are responsible for and must pay for using our Services in accordance with the terms of this Services Agreement (“Subscription Fee”). The Subscription Fee must be paid in advance of your access to the Services, or as we might otherwise agree in a separate, signed writing. The payment of such Subscription Fee will obligate us to provide you access to the Services for the term length we have agreed to in an order form, or otherwise (“Subscription Term”). Payment obligations cannot be cancelled. Payments for Subscription Fees are nonrefundable. Pricing for Subscription Fees are confidential and you agree not to disclose them to any third party under any circumstances.
This Services Agreement will automatically renew either monthly or annually, depending on the Subscription Term we have agreed to. We will issue an invoice to you either monthly, quarterly, or annually, as we have agreed in an order form, or otherwise. The renewal charge will be equal to the Subscription Fee in effect during the prior Subscription Term, unless we have given you at least thirty (30) days prior written notice of a fee increase (“New Rate”). Prior written notice will authorize us to renew your Subscription Fee for Services at the New Rate. Fees for other services will be charged as provided in a separate order or statement of work (“SOW”) executed by both Parties.
Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities (“Taxes”). You are responsible for payment of Taxes.
You agree to provide us with complete and accurate billing and contact information. This information includes your name, the name of your company (if applicable), street address, and e-mail address. You must also provide us with the name and telephone number of your authorized billing contact.
If your contact or billing information changes, you agree to provide updated information to us within thirty (30) days by either updating your account information in the Services, or sending us written notice of such change. Under this Services Agreement, we may terminate your access to Services if you fraudulently provide us with false information or do not keep your billing information up-to-date.
Suspension for Non-Payment or Violation of AUP
We reserve the right to suspend your access to the Services and terminate this Services Agreement if you fail to pay Subscription Fees when due. Failure to pay for fees owed under this Services Agreement constitutes a material breach of this Services Agreement.
You will continue to be charged for the Services during any period of suspension. A late fee will accrue on any outstanding amount. The late fee is equal to two percent (2.0%) of the outstanding balance, calculated on a monthly basis, or the maximum fee permitted by law, whichever is less. You will also be liable for expenses and costs associated with collecting on your delinquent account, including reasonable attorney fees.
If we suspect that you have used the Services in a manner that violates the AUP, we may immediately suspend your access to the Services.
If you request access to our Services after suspension, we may impose a reconnection fee. If your account has been suspended for more than sixty (60) days, we have no obligation to retain your Data. Data that has been deleted or destroyed as a result of your prolonged suspension will not be retrieved. We are not liable for data that is deleted or destroyed as a result of your prolonged suspension.
Either Party may terminate this Services Agreement for any reason upon thirty (30) day written notice to the other Party.
Termination for Cause
Failure to pay for Services or unauthorized use of our Services constitutes a material breach of this Services Agreement. Upon a material breach, we may, in our sole discretion, terminate access to our Services and delete your Data, if you fail to cure the breach within ten (10) days of our notice to you of the breach.
If you use our Services in any matter that violates our AUP, such is a material breach of this Services Agreement, and we may immediately suspend the Services and terminate this Services Agreement.
Representations & Warranties
Each party represents that it has the legal power and authority to enter into this Services Agreement. Testimonial Tree, Inc. warrants that we will provide our Services in a manner consistent with general industry standards reasonably applicable to the provision of the Services, and that our Services will perform substantially in accordance with the online Testimonial Tree, Inc. help documentation under normal use and circumstances.
You agree to indemnify and defend Testimonial Tree, Inc. and its officers, directors, shareholders, parents, subsidiaries, agents, successors, assigns, affiliates, licensors, suppliers, advertisers, agents, sponsors, officers, employees, consultants, and other representatives against any third party claim, suit, award, judgement, damages, fees, assessments, and/or reasonable attorney fees at both the trial and appellate court levels proceeding arising out of or related to your alleged or actual use of, misuse of, or failure to use our Services, including without limitation: (a) claims by your clients, users, and employees; (b) claims related to unauthorized disclosure or exposure of your Data or other private information; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Services through your account, including without limitation through your Data; and (d) claims that use of our Services through your account, including by your clients, users, or employees harasses, defames, defrauds or in any other way harms a third party, or (e) violates the CAN-Spam Act of 2003 or any other local, national, or international law or restriction on electronic advertising (“Indemnified Claims”). Indemnified Claims pursuant to the preceding sentence also include (f) claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by your act or omission or any act or omission of your agents, subcontractors, or employees. Indemnified Claims listed above include, without limitation, claims arising out of or related to our negligence.
Disclaimer of Warranties
YOU ACCEPT OUR SERVICES “AS IS” AND AS AVAILABLE. WE PROVIDE NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (i) WE DO NOT REPRESENT OR WARRANT THAT OUR SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (ii) WE DO NOT REPRESENT OR WARRANT THAT OUR SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR DATA WILL REMAIN PRIVATE OR SECURE.
Our services may be subject to limitations, delays, and other related issues inherent in the use of the internet and electronic communications. We are not responsible for any limitations, delays, delivery failures, or other problems or damages resulting from such issues.
Limitation of Liability
OUR LIABILIY ARISING OUT OF OR RELATED TO THIS SERVICES AGREEMENT WILL NOT EXCEED THE FEES PAID TO US FOR YOUR USE OF THE SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PROCEEDING THE EVENTS THAT GAVE RISE TO SUCH LIABILITY. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS SERVICES AGREEMENT. THE LIABILITIES LIMITED HERE APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF WE ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
If applicable law limits the application of these provisions, our liability will be limited to the maximum extent permissible. For the avoidance of doubt, our liability limits and other rights set forth herein apply likewise to our affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
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.
Local Laws and Export Control
You will not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by us or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, You will not permit any third party to access or use the Services in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria). We make no representation that our Services are appropriate or available for use in other locations. If you use our Services 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 Content contrary to United States law is prohibited. No Content, nor any information acquired through the use of our Services, 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.
We may send notices pursuant to this Services Agreement to your email address, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this Services Agreement via major overnight courier or certified mail, return receipt requested, to Testimonial Tree, Inc., Testimonial Tree, Inc., 24301 Walden Center Dr., Ste. 300, Bonita Springs, FL 34134, and such notices will be deemed received seventy-two (72) hours after they are sent.
Assignment; Change in Control
You may not assign this Services Agreement or any of your rights or obligations hereunder without our express written consent. This Services Agreement will be binding upon and inure to the benefit of Testimonial Tree, Inc.’s respective successors and assigns without your consent.
Choice of Law and Jurisdiction
This Services Agreement will be governed solely by the laws of the State of Florida, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Lee County, Florida. This provision governs all claims arising out of or related to this Services Agreement, including without limitation tort claims.
Neither Party will be deemed to be in breach or default of this Agreement as a result of any delay or non-performance which is caused by flood, fire, storm, earthquake or other act of God, war, military recruitment, terrorism, acts of the public enemy, riot, civil disturbance, power or equipment failure where that equipment is not owned or controlled by the Party.
Terms of Service for Subscribers
Our Services include a browser interface, transmission, access, and storage. Our Services include integration capabilities via embedded web links.
This Agreement, including any documents referenced in this Agreement, all of which are incorporated by reference and made a part of this Agreement, constitutes the entire Agreement between Testimonial Tree and you. Any amendment or modification shall not be valid, enforceable, or binding on the us unless such amendment or modification (i) is a written instrument duly executed by our authorized representatives, and (ii) references this Agreement and identifies the specific sections contained therein which are amended or modified.