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Terillion Online Service Agreement (“Agreement”)

This is a legal agreement between you and Terillion, Inc. (the “Company”).

  1. DEFINITIONS/GENERAL: As used in this Agreement, “Service” means Terillion’s integrated marketing and software service. If kiosk hardware (“Terilion Kit”) is provided as part of the Subscription, then “Service” shall also include the Terillion Kit.  Access to the Service is located at www.terillion.com. “You” or “Subscriber” means the individual who is registered to use the Service, who has an individual User ID and password to gain access to the Service. “Third Party Licensor(s)” means any party that has licensed to the Company the right to include its proprietary computer programs or data in the Company’s software or data products that are used in providing the Service. “Order Form” means the form that a prospective Subscriber must complete on-line in order to register for the Service and become an actual Subscriber. “Subscription Period” means the period of time during which Subscriber will have access to the Service, as selected by you in the Order Form.
  2. ACCESS: Subject to the terms of this Agreement, your Subscription to the Service will provide you with unlimited access to the Service, for the duration of your Subscription Period.
  3. LICENSE AND RESTRICTIONS: In consideration of the subscription fees paid, the Company hereby grants to Subscriber a limited, non-exclusive, non-transferable, license to use the Service during the Subscription Period. The Service shall be used solely by Subscriber for its own business. Information obtained from the Service may be used by the Subscriber for its business purposes, including use in its own research and marketing efforts, provided that such use complies with the Company’s style guidelines or as otherwise approved by the Company in writing. By way of example, Subscriber has a limited license to use surveys results and data from the System for Subscriber’s own marketing purposes (e.g., social media, print media, electronic media, etc.), provided that such information is not altered or manipulated. All rights not specifically granted in this Agreement are reserved by the Company. Subscriber will display any marketing materials provided by company in a prominent way to promote the Service.
    1. UNLESS OTHERWISE EXPRESSLY PERMITTED HEREIN YOU MAY NOT: (1) make derivative works of the Company’s software or data products including but not limited to translations, adaptations, arrangements or any other alteration (each of which would become the property of the Company or its Third Party Licensors, as applicable); (2) sell, rent, lease or lend access to the Service; (3) allow another person or entity to use your individual user ID and password; (4) enter into any reseller, distribution or third party arrangements for distribution of the information generated by the Service, without the prior written consent of the Company; (5) facilitate the submission of reviews that are not from actual and valid patients, customers, or vendors;(6) use the Service to create false or misleading statements, or (7) manipulate survey (review) results.
    2. CONTENT: The Service permits you to enter information about you and your business. You agree that all information concerning you and your business that is posted to the Company’s web site will be accurate in all respects. You further agree that for specific information requested about you or your business, your response will only include information relevant to such data field. For instance, you agree not to post marketing material in a data field reserved for educational background. The Company reserves the right to remove or modify information posted by Subscriber
    3. WIDGET: The Service allows widgets with a summary of survey results to be posted on Subscriber’s Business Profile, Subscriber’s corporate web site, and social media sites. Such widgets provide a link to actual reviews. You agree to use good faith efforts to cause such widget to be posted on your corporate web site.
  4. TERM AND TERMINATION: The Term of the license granted herein shall be for the Subscription Period you select in the Order Form. Unless written notice is received within 30 days prior to the expiration of the Term, the Term will automatically renew for the same term period set forth in the Order Form.Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. (iv) if, within 30 days of the installation date, you desire to have the Terillion Kit uninstalled, you agree to provide written notice to Terillion. Within 30 days of Terillion’s receipt of the Terillion Kit, Terillion will refund you any money collected for the initial monthly subscription fee in the same manner in which the initial fee was paid (v) if, after thirty (30) days from the installation date and prior to the subsequent Subscription Period, you desire to terminate the Service, you agree to pay an early cancellation fee equal to six (6) months of your monthly subscription fee via the credit card or ACH on file. Terillion will cease to collect the monthly subscription fee at the point in time in which Terillion has received your returned Terillion Kit.In the event of a termination, all items in the Terillion Kit must be returned to Terillion in specified return packaging provided by Terillion. If you were not previously provided with specified return packaging, Terillion will provide you with specified return packaging at no cost to you, otherwise you will be responsible for packaging materials. You are responsible for all return shipping charges and for any damage incurred in the shipping process. If any item in the Terillion Kit is not returned, Terillion will charge you for the cost of the item not returned. Terillion will prorate the last monthly subscription fee based on the date the Terillion Kit is received by Terillion. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.Upon termination of the Subscription Period, Subscriber must discontinue all use of the Service. If you fail to comply with any provision of the Agreement at any time, the Company may at its sole discretion terminate this Agreement without refund by notification to you pursuant to Section 13. Upon termination for default, you must cease all use of the Service. The Company may also seek any other available remedies at law or in equity. You understand and agree that cancellation of your Subscription is your sole right and remedy with respect to any dispute with the Company. The Company reserves the right to discontinue providing the Service at any time. Your sole remedy with respect to the Company’s discontinuance of the Service will be a pro-rata refund of Subscription fees paid.
  5. PAYMENT: Subscriber is responsible for the payment of the initial setup fee and the monthly reoccurring fees. The license granted hereunder to use the Services is expressly conditioned upon timely payment of all fees payable in connection with the Service. In the event a payment is not paid by Subscriber, the Company may immediately terminate this Agreement. Subscriber agrees to provide the Company accurate credit card information to keep on file, and hereby authorizes the Company to charge such credit card the applicable amounts due for the Services. Subscriber agrees to update such credit card information upon request.
  6. DISCLAIMER REGARDING THE SERVICE: THE SERVICE IS PROVIDED “AS IS.” EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BY WAY OF FURTHER EXAMPLE AND NOT LIMITATION, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE SERVICE. THE ENTIRE RISK AS TO THE USE OF THE SERVICE IS ASSUMED BY YOU. THE COMPANY PROVIDES THE SERVICE ON A COMMERCIALLY REASONABLE BASIS. THE COMPANY RESERVES THE RIGHT TO INTERRUPT ACCESS TO THE SERVICE AT ANY TIME TO CONDUCT ROUTINE AND EMERGENCY MAINTENANCE AS NEEDED AND THEREFORE THE COMPANY DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT ALL TIMES. DUE TO THE INHERENT NATURE OF THE INTERNET, THE COMPANY DOES NOT GUARANTEE UNINTERRUPTED OR ERROR-FREE SERVICE AND DOES NOT GUARANTEE THAT SUBSCRIBERS WILL BE ABLE TO ACCESS OR USE THE SERVICE AT TIME OR LOCATIONS OF THEIR CHOOSING OR THAT THE COMPANY WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN A SPECIFIC GEOGRAPHIC AREA. ACCESS MAY BE LIMITED, ESPECIALLY DURING PEAK TIMES. IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU OR ANY OTHER PERSON, REGARDLESS OF THE CAUSE, FOR THE EFFECTIVENESS OR ACCURACY OF THE SERVICE OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY IS THE CANCELLATION OF YOUR SUBSCRIPTION AS DETAILED ABOVE IN SECTION 4. IN THE EVENT THE FOREGOING IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INEFFECTIVE, YOU HEREBY AGREE THAT THE COMPANY’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THE SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL NOT EXCEED THE SUBSCRIPTION FEES PAID BY YOU FOR THE SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES, THE COMPANY’S LIABILITY IS LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
  7. ACKNOWLEDGMENT: You acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions. You also agree that: (1) no oral or written information or advice given by the Company, its dealers, distributors, agents or employees shall in any way increase the scope of this Agreement, and you may not rely on any such information or advice; (2) the Company may modify this Agreement and the Services from time to time by electronic notice to you, and you agree to be bound by any such changes as evidenced by your continued use of the Services, (3) any amendments requested to this Agreement by you must be signed by both you and the Company in writing in order to be effective, (4) this Agreement, as amended, is the complete and exclusive statement of the agreement between the Company and you, and supersedes all proposals, oral or written, and any other communications you may have had prior to purchasing your license, and (5) your ongoing use of the Services constitutes acceptance of the terms of this Agreement, as amended.
  8. PRIVACY: You can view the Company’s Privacy Policy on its web site at http://www.terillion.com/privacy-policy/, which is incorporated herein by reference, as it is applicable to the Services. The Privacy Policy provides your rights and the Company’s responsibilities with respect to your personal information.
  9. NO OBLIGATION TO MONITOR: The Company intends to compile surveys, comments, and ratings about you and others. Although the Company reserves the right to edit or remove inappropriate content in the Company’s sole and absolute discretion, you hereby agree that the Company has no obligation whatsoever to remove content that you may consider inappropriate or misleading.
  10. THIRD PARTY ADVERTISING: You acknowledge and agree that the Company’s web site and other electronic storage platforms may contain third party advertising. You may object to the content of such third party advertising by contacting customer support; however, you waive the right to credits, refunds, etc., or to any claim for damages resulting from such third party advertising.
  11. OWNERSHIP OF INTELLECTUAL PROPERTY: You agree the Company and its Third Party Licensors, as applicable, hold all rights, title and interest in the Services, software, and data, including all surveys, comments, and ratings, and all other intellectual property, including other rights related to intangible property (collectively, “Intellectual Property”). You acknowledge that no title or interest in any such Intellectual Property is being transferred to you and you agree to make no claim of interest in any such Intellectual Property.
  12. INDEMNIFICATION: You agree to defend, indemnify and hold harmless the Company and its contractors, agents, attorneys, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding or demand related to your use of the Service or your breach of this Agreement.
  13. NOTICES: Notices to you concerning breach must be sent either to the email or postal address you have on file with the Company. Notices to the Company concerning breach must be sent to the corporate address listed on the Company’s web site, and must include “ATTENTION LEGAL” in order to be effective. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
  14. GOVERNING LAW: This Agreement shall be governed by the laws of the State of Utah, United States. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Salt Lake County, Utah.
  15. ASSIGNMENT: The Company reserves the exclusive right to assign or otherwise transfer any of its rights, interests or obligations under this Agreement to a third party without the prior written consent of Subscriber.
  16. MISCELLANEOUS: A party’s waiver of a breach or a default by the other party does not constitute a waiver of any succeeding breach of the same or any other provision. A party’s delay or omission to exercise or avail itself of any right, power, or privilege will not operate as a waiver of any right, power or privilege by such party. This Agreement constitutes the entire agreement between the parties with regard to the subject matter of the Agreement. The parties may not change the terms of this Agreement except by a writing signed by both parties.