End User License Agreement
Notice to User: Please read the following End User License Agreement (“EULA”) carefully because it will apply to your access to and use of the Arborgold® web and mobile applications (the “Apps”), and constitute a legally binding agreement between you and Tree Management Systems, Inc. (“Arborgold”). By downloading or using the Apps, you agree to the terms of this EULA. If you do not accept the terms of this EULA, do not access the Apps.
DESCRIPTION OF THE APPS. This EULA governs your use of the Apps, including, without limitation, the use of all content such as text, information, images, and audio.
LICENSE GRANT. Subject to the terms of this EULA, Arborgold hereby grants to you a limited, nonexclusive, nontransferable license to access and use the Apps solely for your professional business use. You may not rent, lease, sell, sublicense, assign, reverse engineer, disassemble, modify, loan, distribute, export or otherwise transfer, or allow others to use the Apps, technology or other information, including any printed materials of the same, nor may you create derivative works of or otherwise modify the same. This license will automatically terminate without any refund of your license fee if you do not comply with the terms of this EULA. You may not use, download, or export the Apps in violation of any applicable laws or regulations. You agree that you will not export or re-export the Apps in any form in violation of the laws of the United States or any foreign jurisdiction. By using these Apps, you represent and warrant that you are not (a) a national or resident of any country to which the United States has embargoed goods, or (b) on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Denial and Prohibition Orders.
ACCESS. In order to use the Apps, you will need access to the World Wide Web, either directly or through devices that access web-based content, and that such access may not be available if you do not have an internet connection or for other reasons. You acknowledge and agree that by using the internet to use the App, you may incur charges from your wireless carrier, internet service provider or other method of internet access, depending upon your contract or plan with your provider. You acknowledge that payment of any such charges or any service fees associated therewith are solely your responsibility. In addition, you must provide all equipment necessary to make such a connection to the World Wide Web. You agree that your use of the Apps will be in accordance with all requirements of your wireless carrier, internet service provider or other method of internet access.
CONDUCT AND CONTENT. As a condition of your continuing use of the Apps, you promise that you will not use the Apps for any purpose that is unlawful or prohibited by this EULA. Any unauthorized use of the Apps is expressly prohibited, and we reserve the right to delete inappropriate material and to suspend or terminate the license of any person who uses the Apps for an unauthorized purpose.
You should understand that all messages, data, text, photographs, graphics, and other materials or information transmitted via the Apps (except information that we post) (“User Content”), are the sole responsibility of the person from which an item of User Content originated.If you upload, post, send a message or otherwise transmit any User Content, you are responsible for its compliance with this EULA. Although we have the right to, we do not screen, edit or control User Content. We do not accept responsibility for the truthfulness, accuracy or suitability of User Content. Under no circumstances will we be liable in any way for any User Content, including errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, sent in a message or otherwise transmitted via the App.
If You choose to distribute or share proprietary information. Tree Management Systems, Inc. reserves the right to terminate your apps without notice. Tree Management Systems, Inc. will not be required to repay any subscription that was paid in advance. Tree Management Systems may monitor your compliance with these requirements to detect abuse.
You agree not to use the Apps to:
- upload, post, send in a message or otherwise transmit any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise offensive;
- impersonate any person or entity;
- disguise the authorship or origin of any User Content you transmit;
- upload, post, send in a message or otherwise transmit any User Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, intellectual property, proprietary information and confidential information);
- upload, post, send in a message or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, send in a message or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or any other form of solicitation;
- upload, post, send in a message or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- disrupt the normal flow of dialogue, cause a screen to “scroll” faster than normal, or otherwise act in a manner that negatively affects other users’ ability to engage in orderly exchanges;
- interfere with or disrupt servers or networks connected to the Apps;
- “stalk” or otherwise harass another; or
- collect, store or share personal information about other users.
We reserve the right, in our sole discretion, to block or remove any objectionable User Content that you transmit or make available via the App. Without limiting the breadth of our right, you are advised that we have the right to remove any User Content that violates this EULA or is otherwise objectionable (in our sole determination).
We store and preserve User Content in accordance with established policy and may disclose it if required by law or in the good faith belief that such disclosure is reasonably necessary (a) to comply with legal process, (b) to enforce this EULA, (c) to respond to claims that any User Content violates the rights of third parties, or (d) to protect the rights, property and personal safety of Arborgold, its employees, and its licensed trainers.
We may transmit and store your User Content over various networks, computer servers and other technological means, and we may modify your User Content to conform and adapt it to technical requirements of connecting networks or devices.
We will immediately suspend or terminate the rights of any user license that we believe, in our sole discretion, is being used to disseminate spam or other unsolicited bulk messages. In addition, because damages are difficult to quantify, you agree to immediately pay us liquidated damages of U.S.$25.00 for each piece of spam or unsolicited bulk messages transmitted under, or otherwise associated with, your user license.
You represent and warrant that (i) you will comply with all applicable privacy, data protection, data security and marketing laws, and any other laws applicable to the processing of personal information; (ii) to the extent you provide us personal information of another person, you represent and warrant that you have permission to do so and have provided any required notice and obtained any required consent to do so; and (iii) to the extent you process any personal information received through the App, you are authorized to do so and you will only process such information within the scope of your authority, in compliance with applicable laws, and subject to any required data subject notice and consent, and other data subject rights. If you are accepting these Terms and Conditions on behalf of your company or in your capacity as a representative of your company, you represent and warrant that you have the full authority to do so and to bind your company to these Terms and Conditions.
Your database information is confidential. It will not be disclosed to any outside party unless we are required to do so by law—for example, under subpoena from a court of competent jurisdiction. ArborGold software is not intended to hold credit card data, Social Security numbers, dates of birth, driver’s license numbers, bank account numbers, or similar data. You agree not to hold Tree Management Systems liable for any breach of data security.
EU Users. For users located in the EU, you acknowledge that your personal data is transferred to the United States and other jurisdictions as set out above, and that such transfer is necessary for the performance of our contractual obligations to our customers and users of the App.
Non-EU Users. If you are located outside the EU, you expressly consent to the transfer of personal information to Arborgold in the United States, which may not provide equivalent levels of data protection as your home jurisdiction. If you do not consent to the transfer of your personal information, we will not be able to provide the Apps to you. You may withdraw your consent to further transfers at any time by emailing us at email@example.com; to accommodate your request we will terminate your account.
SURVIVAL. The provisions of Sections 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17 and 18 shall survive any termination or expiration of these Terms and Conditions.
BACKUPS AND DATA RESTORATION. Arborgold regularly creates encrypted back-ups of your database and application preferences. Encrypted back-ups are retained for a ongoing period of 90 days. As an Arborgold user, it is your responsibility to maintain the quality of your database with information. To request a back-up or restoration of your application database files, you must contact Arborgold Client Support services.
CHANGES. Arborgold may choose to provide updates to the Apps from time to time in its sole discretion. To the extent that you choose to download or use any such updates to these Apps, you acknowledge that you will be bound by the version of this EULA which is applicable as of the time you download and use any such update to the App.
This Agreement is subject to revision with the provision of future copies, the provision of any upgrade, or with the sale or other provision of any program interacting with the Software.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE APPS ARE AT YOUR SOLE RISK. THESE APPS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT (i) THE APPS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPS WILL BE ACCURATE OR RELIABLE, OR (iii) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER WE NOR OUR OFFICERS, DIRECTORS, EMPLOYEES, LICENSED TRAINERS, AFFILIATES, CONTRACTORS, VENDORS OR LICENSORS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) YOUR USE OF OR INABILITY TO USE THE APP; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA OR OTHER USER CONTENT; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APP; OR (iv) ANY OTHER MATTER RELATING TO THE APP.
INDEMNIFICATION. You agree to indemnify, defend and hold harmless Arborgold, its affiliates, officers, directors, employees and suppliers from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or allegedly arising out of your use of the App, User Content, breach of this EULA, or violation of any rights of another.
TERMINATION. Your rights under this license will terminate automatically without notice from Arborgold and without refund of your license fee if you fail to comply with any term(s) of this EULA.
Failure to pay the monthly or yearly subscription fee within thirty (30) days of the due date will result in termination of the account. You agree that Tree Management Systems has no responsibility to preserve any data in an account that has been terminated. At your request, within thirty (30) days of termination of your account, a copy of your data will be provided to you.
Tree Management Systems may terminate your subscription if, in its sole judgment, your account is being used for attempted computer hacking, other illegal activity, or other activity that violates the terms of this Agreement.
PROPRIETARY RIGHTS. You acknowledge that (a) the Apps contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) Arborgold and/or third parties own and retain all right, title and interest in and to the Apps and software provided through or in conjunction with the Apps, including without limitation all Intellectual Property Rights therein and thereto. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree that you will not, and will not allow any third party to, (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or algorithms from the App, unless otherwise permitted, (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the App, (iii) use the Apps to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or (iv) remove, obscure, or alter Arborgold’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the App. Ownership of all trademarks and the goodwill associated therewith remains with Arborgold.
PROHIBITED USES OF APP. You agree not to resell the Apps or use of or access to the App. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the App.
ASSIGNMENT. You may not assign or transfer your rights under this EULA without the prior written consent of Arborgold. Arborgold may assign all rights and liabilities under this EULA to a subsidiary, affiliate or successor to all or a substantial part of its business and assets without your consent. Subject to the foregoing, this EULA will inure to the benefit of and be binding upon the successors and permitted assigns of the parties. Any assignment contrary to this section shall be null and void.
CUSTOMER AGREEMENT. You hereby represent and warrant that you are legally bound by this EULA when you access or use the App.
GENERAL. This EULA constitutes the entire agreement between you and us relating to your use of the Apps and governs your use of the App, superseding any prior agreements between you and us, or you and our licensed trainer(s). You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. This EULA and the relationship between you and us shall be governed by the laws of the State of Maryland, U.S.A. without regard to its conflict of law provisions. You and we agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within or applicable to Baltimore County, Maryland, U.S.A. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Apps or this EULA must be filed within one year after such claim of action arose or be forever barred.
Any unauthorized access, modification or change of any information, or any interference with the availability of or access to the Apps is strictly prohibited. We reserve all legal rights and remedies available to us and this disclaimer shall in no way be deemed a limitation or waiver of any other rights we may have.
Our failure to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision. If any provision of this EULA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this EULA remains in full force and effect. The Section titles in this EULA are for convenience only and have no legal or contractual effect.
DISPUTE RESOLUTION. This Software is provided as is, and you are responsible for maintaining your systems in good working order and for following good practices to maintain computer security. To the degree permissible by law, you release Tree Management Systems from all liability arising from your use of the Software. For example, you agree not to hold Tree Management Systems responsible for lost data or reports; any issues relating to third-party software you are using; your internet or connectivity issues; or any of the consequences or damages associated with data loss. If any dispute should arise between you and Tree Management Systems, the applicable laws shall be the laws of the United States and of the State of Indiana. You agree to binding arbitration in Monroe County, Indiana, under the applicable rules of the American Arbitration Association; any judicial review or action for enforcement of the arbitration decision shall be brought before the Monroe Circuit Court or the United States District Court for the Southern District of Indiana. You agree that Tree Management Systems shall not be responsible for the legal fees of any party other than itself. Liquidated damages shall be limited to the purchase price of the goods or services purchased from Tree Management Systems.
REFUNDS. The following products and/or services are not refundable:
- any fees for custom work (such as customizing Software, customizing forms, customizing reports, and/or importing data);
- any fees for implementation and/or training services; and
- annual and/or monthly subscription fees.
SYSTEM ADMINISTRATOR. Please report any violations of this EULA to the system administrator:
Arborgold Systems, Inc.
101 Kirkwood Avenue, Suite 312
Bloomington, IN 47404
Phone Number: (812) 269-8402
© 2018 Arborgold Systems, Inc. All rights reserved.