October 27, 2016

User Agreement



This is a legal agreement (“Agreement”) between you and Giving-Tree Associates d/b/a Passport For Good (“Giving-Tree”). This Agreement governs your use of our applications, scripts, instruction sets, and any related documentation (collectively “Software”). As used herein, “you” means a user of the Software, and in addition, when the user of the Software is provided access to the Software by a school and/or school district or other educational organization (an “Entity”), the term “you” also includes such Entity. You should carefully read this Agreement, the Giving-Tree Privacy Policy at http://www.passportforgood.com/about/privacy-policy/ and the Giving-Tree COPPA Privacy Policy http://www.passportforgood.com/coppa-privacy-policy (the “Privacy Policies”), which are incorporated into and are a part of this Agreement. By using the Software, you agree to this the terms of this Agreement and the Privacy Policies. If you have entered into another agreement with us concerning the Software, then the terms of that agreement controls where it conflicts with these terms.

1. How this Agreement Works.

1.1 Eligibility. You may only use the Software if you are allowed by law to enter into a binding contract, and you are in compliance with all applicable federal, state, and local laws (and all regulations and rules thereunder).

1.2 Privacy. The Privacy Policies at www.passportforgood.com govern any personal information you provide to us. By using the Software you agree to the terms of the Privacy Policies.

1.3 Order of Precedence. If there is any conflict between the terms in this Agreement and the terms of any other Giving-Tree terms and conditions related to the purchase of services related to, and use of, the Software, then the terms of that agreement controls where it conflicts with these terms.

1.4 Modification. We may modify, update, or discontinue the Software (including any of its portions or features) at any time without liability to you or anyone else. However, we will make reasonable effort to notify you before we make the change. We will also allow you a reasonable time to download your content.

2. Use of Service.

2.1 License. Subject to your compliance with these terms and the law, you may access and use the Software.

2.2 Giving-Tree Intellectual Property. We (and our licensors) remain the sole owner of all right, title, and interest in the Software. We reserve all rights not granted under these terms.

2.3 Storage. If and when the Software provides storage, we recommend that you continue to back up your content regularly. We may create reasonable technical limits on your content, such as limits on file size, storage space, processing capacity, and other technical limits. We may suspend your use of the Software until you are within the storage space limit associated with your account.

3. Account Information.

You are responsible for all activity that occurs via your account. Please notify Giving-Tree immediately if you become aware of any unauthorized use of your account. You may not (a) share your account information (except with an authorized account administrator) or (b) use another person’s account. Your account administrator may use your account information to manage your use and access to the Software.

4. User Conduct.

4.1 Misuse. You must not misuse the Software or content that we provide to you as part of the Software. For example, you must not:

(a) copy, modify, host, stream, sublicense, or resell the Software or content;

(b) enable or allow others to use the Software, or content using your account information;

(c) use the content or Software to construct any kind of database;

(d) access or attempt to access the Software by any means other than the interface we provided or authorized;

(e) circumvent any access or use restrictions put into place to prevent certain uses of the Software;

(f) share content or engage in behavior that violates anyone’s Intellectual Property Rights (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights.);

(g) upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;

(h) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(i) attempt to disable, impair, or destroy the Software;

(j) disrupt, interfere with, or inhibit any other user from using the Software (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way);

(k) engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages;

(l) place advertisement of any products or services in the Software except with our prior written approval;

(m) use any data mining or similar data gathering and extraction methods in connection with the Software; or

(n) violate applicable law.

4.2 Compliance with Family Educational Rights and Privacy Act (“FERPA”). By using the Software, any Educational Institutions or Educational Agencies, as those terms are defined under FERPA (“Educational Institution or Agency”), certify that they are in full compliance with FERPA. If we determine, in our sole discretion, that an Educational Institution or Agency is in violation of any of the provisions of FERPA, we reserve the right to immediately terminate such Educational Institution or Agency’s right to use and access the Software.

4.3 Compliance with Children’s Online Privacy Protection Act (“COPPA”). If you are an Entity authorizing a student under the age of 13 to access, or providing such a student with access to, or use of, the Software, you hereby represent and warrant that such student’s parents or guardians have agreed to the terms of this Agreement and the Privacy Policies on behalf of such student and that you have obtained all parental consents and permissions in connection with the access to, and use of, the Software, and you will otherwise comply with all federal, state, and local laws (and all regulations and rules thereunder) governing such student accessing and using the Software, including without limitation, COPPA. If we determine, in our sole discretion, that an Entity is in violation of any of the provisions of COPPA, we reserve the right to immediately terminate such Entity’s right to access or use the Software.

5. Fees and Payment.

5.1 Taxes and Third-Party Fees. You must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.

5.2 Credit Card Information. If you do not notify us of updates to your payment method, to avoid interruption of your use of the Software, we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.

6. Your Warranty and Indemnification Obligations.

6.1 Warranty. By uploading your content to the Software, you agree that you have: (a) all necessary licenses and permissions, to use and share your content and (b) the rights necessary to grant the licenses in these terms.

6.2 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your content, your use of the Software, or your violation of these terms.

7. Disclaimers of Warranties.

7.1 The Software is provided “AS-IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. We make no commitments about the content within the Software. We further disclaim any warranty that (a) the Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Software will be effective, accurate, or reliable; (c) the quality of the Software will meet your expectations; or that (d) any errors or defects in the Software will be corrected.

7.2 We specifically disclaim any liability for any actions resulting from your use of any Software. You may use and access the Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Software.

8. Limitation of Liability.

8.1 We are not liable to you or anyone else for: (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; and (b) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (x) resulting from loss of use, data, or profits, whether or not foreseeable, (y) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (z) arising from any other claim arising out of or in connection with your use of or access to the Software. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.

8.2 Our total liability in any matter arising out of or related to these terms is limited to U.S. $100 or the aggregate amount that you paid for access to the Software during the three- month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.

8.3 The limitations and exclusions in this Section 8 apply to the maximum extent permitted by law.

9. Termination.

9.1 Termination by You. You may stop using the Software at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees.

9.2 Termination by Us. If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. We may, at any time, terminate your right to use and access the Software if:

(a) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);

(b) you fail to make the timely payment of fees for the Software, if any;

(c) we are required to do so by law (for example, where the provision of the Software to you is, or becomes, unlawful); or

(d) we elect to discontinue the Software, in whole or in part, (such as if it becomes impractical for us to continue offering Software in your region due to change of law).

9.3 Survival. Upon expiration or termination of these terms, any perpetual licenses you have granted, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of these terms, some or all of the Software may cease to operate without prior notice.

10. Export Control Laws.

The Software, content, and your use of the Software and content, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Software and content. You agree to comply with all the laws, restrictions, and regulations.

11. Arbitration.

Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties hereby agree to use one (1) arbitrator. The place of arbitration will be Albany, New York, United States of America.

Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Software or content in violation of the Agreement you agree that Giving-Tree is entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

12. Compliance with Licenses.

If you are a business, company, or organization, then we may, no more than once every 12 months, upon seven 7 days’ prior notice to you, appoint our personnel or an independent third party auditor who is obliged to maintain confidentiality to inspect (including manual inspection, electronic methods, or both) your records, systems, and facilities to verify that your installation and use of the Software is in conformity with its valid licenses from us. Additionally, you will provide us with all records and information requested by us in order to verify that its installation and use of the Software is in conformity with your valid licenses from us within 30 days of our request. If the verification discloses a shortfall in licenses for the Software, you will immediately acquire any necessary licenses, subscriptions, and any applicable back maintenance and support. If the underpaid fees exceed 5% of the value of the payable license fees, then you will also pay for our reasonable cost of conducting the verification.

13. Modification.

We may modify these terms or any additional terms that apply to the Software to, for example, reflect changes to the law or changes to our Software. You should look at the terms regularly. We will post notice of modifications to these terms on this page. We will post notice of modified additional terms in the applicable Software. By continuing to use or access the Software after the revisions come into effect, you agree to be bound by the revised terms.

14. Miscellaneous.

14.1 Notice to Giving-Tree. You may send the notices to us to at the following address: Giving-Tree Associates, LLC d/b/a Passport For Good, 159 Delaware Avenue #226, Delmar, New York 12054.

14.2 Notice to You. We may notify you by email, postal mail, postings within the Software, or other legally acceptable means.

14.3 Entire Agreement. These terms and the Giving-Tree Terms and Conditions of Sale constitute the entire agreement between you and us regarding your use of the Software and supersede any prior agreements between you and us relating to the Software.

14.4 Non-Assignment. You may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without our written consent and any such attempt will be null and void. We may transfer our rights under these terms to a third party.

14.5 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.

14.6 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.