Master Service Agreement
This Master Service Agreement (this “Agreement”) is between Technology Marketing Toolkit, Inc., a Tennessee corporation (“TMT”), and the person or entity listed on the Order Form linked to these terms ("Customer").
TMT and Customer agree as follows:
1. Definitions. This section contains the definitions for terms used frequently in this MSA. Capitalized words used in this Agreement, including the preamble, have the meanings that follow, not the plain English meaning. Customer should refer to this section for the meanings of capitalized words encountered while reading this Agreement.
1.1. “Agreement” means this MSA together with the applicable Order Form between TMT and Customer.
1.2. “Customer Data” means data, information, and materials that are uploaded by or on behalf of Customer or that are accessed by TMT in connection with Customer’s use of the Subscription or Service.
1.3. “Effective Date” means the date on which TMT accepts the applicable Order Form that incorporates this Agreement.
1.4. “Fees” means the amount Customer must pay to TMT for each Subscription listed in the Order Form.
1.5. "Order Form“ means an electronic or physical ordering document, webform, or any other structured information describing Customer’s purchase of Services from TMT. (For example, a document listing the Services, term, pricing, and quantity of Services purchased.)
1.6. “Service” means one or more of the TMT platform, TMT Website, and TMT Content as listed in the Order Form.
1.7. “Subscription” means access to a Service in exchange for the Fees.
1.8. “Subscription Term” means the duration of the Subscription listed in the Order Form.
1.9. "TMT Content” means, without limitation, information, whether electronic, written, or verbal, teleseminars, marketing strategies, sales scripts, marketing templates, membership portals, illustrations, examples, and other services, and ALL MATERIALS posted to any TMT Website.
1.10. “TMT Website” means any website or any subdomain thereof owned, operated, controlled, or populated by TMT.
2. Order Acceptance and Cancellation. When Customer accepts an Order Form, whether unassisted through a TMT Website, with the assistance of a TMT representative via telephone or electronic messages (including email, text, or chat), in person, or otherwise, Customer submits to TMT an offer to buy the Services listed in the Order Form under the terms and conditions of this MSA. TMT must accept the Order Form before TMT is obligated to sell the Services to Customer. TMT may choose not to accept an Order Form at its sole discretion, even after TMT sends Customer a confirmation email with an order number and details of the Services ordered or makes the Services available to Customer.
3. Term and Termination.
3.1. Term. The term of this Agreement begins on the Effective Date and ends on the later of a termination of this Agreement or the natural expiration of Customer’s last remaining Subscription Term. Customer may not cancel or receive a refund for Subscriptions. A new contract will begin automatically after the last day of each Subscription Term for the same length of time as the original subscription, unless Customer gives TMT notice of its intention not to renew. TMT must receive notice not to renew no earlier than sixty days and no later than thirty days before the end of the Subscription Term for the Subscription not to be renewed.
3.2. Termination for Cause. TMT may terminate this Agreement or any Order Form:
3.2.1. immediately without notice for any Customer breach of Sections 4, 6, or 7; or
3.2.2. thirty calendar days after Customer receives notice of a breach of this Agreement and fails to completely cure any breach detailed in the notice to TMT’s satisfaction.
3.3. Suspension. TMT may suspend any Service and Customer’s use of the Subscription:
3.3.1. should Customer breach any term of this Agreement, including without limitation failing to pay the Fees when due; or
3.3.2. If continued provision or use of Services poses a risk to TMT, Customer, other customers, or the public at large, or other in its sole discretion (for example, a security breach).
3.4. Effect of Termination. Upon any termination of this Agreement or a Subscription:
3.4.1. Customer’s license to access and use the TMT Content is automatically terminated;
3.4.2. Customer shall immediately delete from its systems and servers all TMT Content;
3.4.3. Upon TMT's written request, Customer shall promptly provide TMT with written certification of such deletion;
3.4.4. Customer shall promptly pay all unpaid Fees, including Fees that would have been payable through the end of the Subscription Term had the Agreement or Subscription not been terminated early.
4. Intellectual Property.
4.1. Copyright. TMT is the author of all past, present, and future TMT Content, including but not limited to text, graphics, logos, icons, images, video clips, audio clips, digital downloads, data compilations, and software. TMT Content is the property of TMT.
4.2. Trademarks. Graphics, logos, page headers, icons, scripts, and services names included in or made available through any Service, TMT Content, or TMT Website are trademarks or trade dress of TMT. Customer shall not use TMT’s trademarks or trade dress without TMT’s express written permission. All other trademarks not owned by TMT are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by TMT. Click here to see a non-exhaustive list of TMT’s trademarks.
4.3. TMT Content License. TMT grants to Customer a non-exclusive, non-transferable, and non-sublicensable license, during the Subscription Term, to reproduce, perform, display, transmit, and distribute TMT Content solely for the purposes of marketing and promoting Customer’s business.
4.4. TMT Content License Restrictions. The license granted in Section 4.3 is subject to the following restrictions:
4.4.1. Customer shall not include TMT Content on any Customer website other than as expressly permitted herein and in accordance with all terms and conditions of this Agreement.
4.4.2. Customer shall not make the TMT Content available, or otherwise use the TMT Content, except as expressly licensed pursuant to Section
4.3. Any use by Customer of the TMT Content as expressly provided herein requires a separate written agreement between TMT and Customer, and TMT has no obligation to enter into any such agreement.
4.4.3. Customer shall not permit framing, in-line linking, appearing in a new window, or otherwise of TMT Content.
4.4.4. Customer shall not edit, alter, modify, combine with other content, or create any derivative works of the TMT Content other than in accordance with TMT’s instructions.
4.4.5. All other uses of the TMT Content that do not comply fully with the provisions of this Section are beyond the scope of the license granted to Customer. Any violation of this Section by Customer is a material breach of this Agreement that is incapable of cure.
4.5. Customer Data. Customer grants to TMT a non-exclusive, irrevocable, worldwide license to use, process, and possess Customer Data for the purpose of providing the Service or Subscription.
5. TMT OBLIGATIONS
5.1. During the Subscription Term, TMT shall provide:
5.1.1. access to the Subscription or Service; and
5.1.2. the license described in Section 4.3;
6. CUSTOMER OBLIGATIONS
6.1. Customer shall:
6.1.1. Pay the Fees when due;
6.1.2. display with TMT Content the appropriate copyright and trademark notices and any other source attribution required by TMT;
6.1.3. not alter, remove, or obstruct any such notices or attribution included with any TMT Content as delivered by TMT;
6.1.4. Provide the license to the Customer Data; and
6.1.5. not use any Service without a valid Subscription or payment of Fees.
7. REPRESENTATIONS AND WARRANTIES
7.1. Customer represents and warrants that Customer:
7.1.1. will not (nor by action or inaction will it allow or enable any third party to) copy, publish, modify, transmit, share, lease, rent, sell, or participate in the sale of TMT Content or Services, in whole or in part;
7.1.2. has the rights required to grant TMT the license to use, process, and possess Customer Data;
7.1.3. will not (a) solicit and/or market to clients and customers of TMT identified on the Site or who participate or post in any online forum or page on the Site; (b) disparage TMT or its clients or customers on this Site or any website owned or controlled by TMT; (c) transmit unsolicited messages, chain letters or unsolicited commercial email; (d) transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (e) transmit files, graphics, software, or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, or other intellectual property right of any person; (f) transmit viruses, Trojan horses, or any other malicious code or program; (g) engage in systematic retrieval of data or other content from this website to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from TMT by use of scrapers or other tools; or (h) engage in any other activity deemed by TMT to be in conflict with the spirit or intent of this Agreement;
7.1.4. is solely responsible for providing, maintaining and ensuring compatibility with the TMT Website, Subscription, Services, all hardware, software, electrical and other physical requirements for Customer use of the TMT Website, Subscription, and Services, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs, and services required to access the TMT Website, Subscription, and Services;
7.1.5. will maintain confidentiality of its account, membership, and password;
7.1.6. will restrict access to and secure, with no less than commercially reasonable security standards (e.g., NIST, ISO 27001), computers and TMT Content;
7.1.7. accepts responsibility for all activities that occur under its account, membership or password, including payment of Fees incurred whether or not authorized; and
7.1.8. will use Services only as permitted by law.
7.2. ALL INFORMATION, WEB SITES, SERVICES, PRODUCTS, OR OTHER ITEMS PRESENTED TO CUSTOMER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTY EITHER EXPRESSED OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, TECHNOLOGY MARKETING TOOLKIT, INC. DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, SUITABILITY, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE. TECHNOLOGY MARKETING TOOLKIT, INC. DOES NOT WARRANT OR GUARANTEE THE RESULTS, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE PRODUCTS, INFORMATION BOTH WRITTEN AND VERBAL, MATERIALS, AND SERVICES PROVIDED TO CUSTOMER ON THIS WEBSITE OR IN ANY OTHER TECHNOLOGY MARKETING TOOLKIT, INC. PRODUCT OR SERVICE. WE ALSO DO NOT WARRANT OR GUARANTEE THE ACCURACY, CORRECTNESS, OR RELIABILITY OF ALL INFORMATION, WRITTEN, VERBAL, OR OTHERWISE. THE ENTIRE RISK AS RELATED TO THE USE, RESULTS AND PERFORMANCE OF THE PRODUCTS, SERVICES, AND INFORMATION PROVIDED IS ASSUMED BY CUSTOMER, THE USER, AND THEREFORE CUSTOMER IS RESPONSIBLE FOR ANY COST OF SERVICING, REPAIR, CORRECTION, OR LIABILITY AS A RESULT OF USING THE PRODUCTS, SERVICES, AND INFORMATION PROVIDED BY TECHNOLOGY MARKETING TOOLKIT, INC. ON THIS WEBSITE OR IN ANY OTHER PRODUCT OR SERVICE OFFERED BY TECHNOLOGY MARKETING TOOLKIT, INC. TMT OWES NO DUTIES TO CUSTOMER OTHER THAN THOSE ARISING OUT OF THIS CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES.
8. LIMITATION OF LIABILITY
8.1. THE LIMITATIONS DESCRIBED IN THIS SECTION ARE MATERIAL TO THIS AGREEMENT AND ARE AN ESSENTIAL PART OF THE CALCULATION OF THE FEES. MODIFICATIONS OF THIS SECTION SIGNIFICANTLY ALTER TMT’S BARGAINED-FOR CONSIDERATION. TMT WOULD NOT PROVIDE CUSTOMER WITH THE SUBSCRIPTIONS UNLESS IT COULD RELY ON THE LIMITATIONS IN THIS SECTION.
8.2. UNDER NO CIRCUMSTANCES WILL TMT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THESE TERMS AND CONDITIONS, THE TMT WEBSITE, ANY TMT SERVICE, ANY LINKED SITE OR THE INTERNET GENERALLY, INCLUDING BUT NOT LIMITED TO, CUSTOMER’S USE OR INABILITY TO USE THE SERVICES, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICES, DELAY, FAILURE, UNAUTHORIZED ACCESS OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE TMT WEBSITE OR ANY LINKED SITE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE TMT WEBSITE OR ANY LINKED SITE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF TMT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ANY EXCLUSIVE REMEDY FAILA OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE UNAVAILABLE.
8.3. IN NO EVENT WILL TMT’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY DIRECT DAMAGES, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EXCEED THE SUM OF THE FEES CUSTOMER ACTUALLY PAID TO TMT FOR THE APPLICABLE SUBSCRIPTION DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE ASSERTION.
8.4. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO CUSTOMER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MIGHT HAVE ADDITIONAL RIGHTS.
9.1. Customer shall indemnify, defend, and hold TMT, its subsidiaries, affiliates, directors, officers, shareholders, agents, and employees (“TMT Indemnitees”), harmless from and against any loss, damage, liability, cost, or expense, of any kind, including attorneys’ and experts’ fees, in connection with a third party claim, demand, proceeding, or otherwise, arising out of or related to Customer’s use of any TMT Website, or Service, or any violation by Customer or any of Customer’s agents, employees, independent contractors, authorized or unauthorized users accessing Customer’s accounts, subscriptions, memberships, or passwords, of this Agreement or the terms and conditions specific to Customer’s purchase of any Subscription or Service or Customer Data.
10.1. Electronic Communications. When Customer uses TMT Services, or send e-mails, text messages, and other communications from Customer desktop or mobile device to TMT, Customer is communicating with TMT electronically. Customer consents to receiving communications from TMT electronically, such as e-mails, texts, mobile push notices, or other messages. All agreements, notices, disclosures, and other communications that TMT provides to Customer electronically satisfy any legal requirement that such communications be in writing.
10.2. TMT is not responsible for any third party content that may be accessed through its website, and reference to third party information, products or services at this or any linked site does not constitute an express or implied warranty or endorsement by TMT When Customer link to another site from this website, Customer leave this website and server controlled by TMT and enter into the jurisdiction of the linked site under the control of a third party for which TMT has neither responsibility nor control.
10.3. Governing Law. This Agreement is governed under the laws of the State of Tennessee. Under no circumstances will the laws of any other state be applied, even where such a result would be implicated by conflict of law principles. Customer hereby irrevocably consent to the personal and exclusive jurisdiction and venue of the federal and state courts located in and presiding over Williamson County, Tennessee regarding any and all disputes relating to this Agreement or Customer’s use of the Services.
10.4. Costs and Attorneys’ Fees. If TMT prevails in any action in law or equity in enforcing or concerning the parties’ rights and obligations under this Agreement, TMT will be entitled to reasonable fees of attorneys, accountants, experts, and other professionals, and costs and expenses in addition to any other relief to which it may be entitled. In addition to the Fees, Customer shall pay TMT any collections costs and expenses incurred to collect the Fees.
10.5. TMT may modify, amend, update and change this Agreement from time to time without notice to Customer. Customer shall regularly review this Agreement for updates. Customer
10.6. Customer Posts. Customer may submit reviews, comments, photos, videos, and other content and communications; and may submit suggestions, ideas, comments, questions, or other information, so long as the content does not violate the prohibited uses described above, is not illegal, obscene, pornographic, threatening, defamatory, invasive of privacy, infringing on intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam” or unsolicited commercial electronic messages. Customer may not use false email address, impersonate any person or entity, or otherwise mislead as to the origin of the content. TMT reserves the right (but does not have the obligation) to remove or edit such content. If Customer does post or submit material or content, unless TMT indicates otherwise, Customer grants TMT a non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, profit from, and display such content throughout the world in any media. Customer grants TMT and sublicensees the right to use the name that Customer submit in connection with such content, if it chooses. Customer further represents and warrants that Customer owns or otherwise controls all of the rights to the content that Customer posts; that the content is accurate; that use of the content Customer supply does not violate this Agreement and will not cause injury to any person or entity; and that Customer will indemnify TMT Indemnities pursuant to the indemnification provision contained herein for all claims resulting from the content Customer supplies. TMT has the right but not the obligation to monitor and edit or remove any activity or content. TMT takes no responsibility and assumes no liability for any content posted by Customer or any third party.
10.7. Entire Agreement. This Agreement together with the Order Form constitutes the entire agreement and understanding between Customer and TMT regarding the matters set forth herein. The terms of this Agreement supersede and any and all previous terms and conditions, including those incorporated into existing Order Forms, between Customer and TMT regarding the subject matter hereof, whether written or oral. For the purposes of clarity, the terms of existing Order Forms (e.g., description of Fees, Subscription Term, and Services) are not superseded unless that intent is expressly stated in the Order Form Only the terms and conditions incorporated in existing Order Forms are superseded by this Agreement. No agreement or other understanding purporting to modify (other than pursuant to § ) this Agreement is binding upon TMT unless otherwise agreed to by TMT in writing.
10.8. No Waiver. The failure of TMT to exercise or enforce any right or provision of this Agreement is not a waiver of such right or provision. Any provision of this Agreement that is invalid or unenforceable in any jurisdiction is ineffective only to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof; and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Customer expresses its intent to be bound by the terms and conditions of this MSA by clicking the “I Agree” button on the Order Form.
Any questions concerning this Agreement should be directed to:
Attention: Nicole Rodgers