Terms and Conditions of Sale and Use

Updated: 17 November, 2009

Welcome to Triumphant Heart International! By using Triumphant Heart International, and signing up as a Client, you agree to be legally bound by these Terms and Conditions of Use (the “Terms and Conditions”), including those terms and conditions incorporated by reference. Please read these Terms and Conditions carefully. If you do not accept these Terms and Conditions, you may not use the Triumphant Heart International service. Triumphant Heart International may revise these Terms and Conditions at any time by updating this posting at http://www.triumphantheart.com/?page_id=43. You should visit this web page periodically to review the Terms and Conditions, because they are binding on you (http://www.triumphantheart.com/?page_id=43). In these Terms and Conditions, all services provided by and related to Triumphant Heart International, and all text, images, photographs, user interface, “look” and “feel”, data and other content included at triumphantheart.com from time to time (including, without limitation, the selection, coordination and arrangement of such content) are sometimes referred to as the “Web Site” and/or “Service.”

Privacy

Please review our Privacy Notice, which also governs your visit to the Web Site, to understand our practices.

Electronic Communication

When you visit the Web Site or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site with exception to some previsions described detailed below. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Copyright

All content included on this site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Triumphant Heart International, Inc. or its content suppliers and protected by United States and international copyright laws. The compilation of all content on this site is the exclusive property of Triumphant Heart International, Inc. and protected by U.S. and international copyright laws. All software used on this site is the property of Triumphant Heart International, Inc. or its software suppliers and protected by United States and international copyright laws.

Trademarks

TRIUMPHANT HEART INTERNATIONAL and other Triumphant Heart International, Inc. graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of Triumphant Heart International, Inc. in the U.S. and/or other countries. Triumphant Heart International’s trademarks and trade dress may not be used in connection with any product or service that is not Triumphant Heart International’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Triumphant Heart International, Inc. All other trademarks not owned by Triumphant Heart International, Inc. that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Triumphant Heart International, Inc.

Patents

One or more patents owned by Triumphant Heart International apply to this site and to the features and services accessible via the site. Portions of this site operate under license of one or more patents.

License and Site Access

Triumphant Heart International, Inc. grants you a limited license to access and make personal use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Triumphant Heart International, Inc. This license does not include any resale or commercial use of this site or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. This site or any portion of this site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Triumphant Heart International, In. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Triumphant Heart International, Inc. without express written consent. You may not use any meta tags or any other “hidden text” utilizing Triumphant Heart International, Inc.’s name or trademarks without the express written consent of Triumphant Heart International, Inc. Any unauthorized use terminates the permission or license granted by Triumphant Heart International, Inc.. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Web Site so long as the link does not portray Triumphant Heart International, Inc., or its products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any Triumphant Heart International, Inc. logo or other proprietary graphic or trademark as part of the link without express written permission.

Reviews, Comments, Communications, and Other Content

Visitors may post reviews, comments, photos, and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property 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.” You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Triumphant Heart International, Inc. reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.

If you do post content or submit material, and unless we indicate otherwise, you grant Triumphant Heart International, Inc. a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant Triumphant Heart International, Inc. and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Triumphant Heart International, Inc. for all claims resulting from content you supply. Triumphant Heart International, Inc. has the right but not the obligation to monitor and edit or remove any activity or content. Triumphant Heart International, Inc. takes no responsibility and assumes no liability for any content posted by you or any third party.

Copyright Complaints

Triumphant Heart International, Inc. respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow our Notice and Procedure for Making Claims of Copyright Infringement below.

Risk of Loss

All items purchased from Triumphant Heart International, Inc. are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.

Product Descriptions

Triumphant Heart International, Inc. attempts to be as accurate as possible. However, Triumphant Heart International, Inc. does not warrant that product descriptions or other content of this site is accurate, complete, reliable, current, or error-free.

Pricing

Except where noted otherwise, the List Price displayed for products on our website represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice; or the estimated retail value for a comparably featured item offered elsewhere. The List Price is a comparative price estimate and may or may not represent the prevailing price in every area on any particular day. For certain items that are offered as a set, the List Price may represent “open-stock” prices, which means the aggregate of the manufacturer’s estimated or suggested retail price for each of the items included in the set. Where an item is offered for sale by one of our merchants, the List Price may be provided by the merchant.

With respect to items sold by Triumphant Heart International, Inc., we cannot confirm the price of an item until you order; however, we do NOT charge your credit card until after your order has entered the shipping process. Despite our best efforts, a small number of the items in our catalog may be mispriced. If an item’s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.

Payment

Full payment is required immediately. No product or service shall be rendered until full payment has been made.

Returns & Refunds

We do not accept returns of any kind. All sales are final. No refunds.

Shipping

Unless otherwise noted, all items are shipped by United States Postal Service Media Mail. Most orders will be received between 7-10 business days. Free shipping only applies within the United States.

Disclaimer of Warranties and Limitation of Liability

THIS SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY TRIUMPHANT HEART INTERNATIONAL, INC. ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. TRIUMPHANT HEART INTERNATIONAL, INC. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.

TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, TRIUMPHANT HEART INTERNATIONAL, INC. DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TRIUMPHANT HEART INTERNATIONAL, INC. DOES NOT WARRANT THAT THIS SITE; INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE OR BY REPRESENTATIVES OF TRIUMPHANT HEART INTERNATIONAL; THEIR SERVERS; OR E-MAIL SENT FROM TRIUMPHANT HEART INTERNATIONAL, INC. ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TRIUMPHANT HEART INTERNATIONAL, INC. WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE OR THROUGH AN AUTHORIZED TRIUMPHANT HEART INTERNATIONAL REPRESENTATIVE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.

Applicable Law

By visiting the Web Site, you agree that the laws of the state of California, without regard to principles of conflict of laws, will govern these Conditions of Sale and Use and any dispute of any sort that might arise between you and Triumphant Heart International, Inc.

Disputes

With exception to Web Design Services, any dispute relating in any way to your visit to the Web Site or to products or services sold or distributed by Triumphant Heart International, Inc. or through the Web Site in which the aggregate total claim for relief sought by you exceeds $2,500 shall be submitted to arbitration under the rules and regulations of the American Arbitration Association. All costs of arbitration shall be divided equally between the parties. Any award may be enforced by a court of law. All disputes shall be adjudicated in any state or federal court in Orange County, California, and you consent to exclusive jurisdiction and venue in such courts. For more information about our dispute process for our Web Design Services, see below.

Site Policies, Modification and Severability

Please review our other policies, posted on this site. These policies also govern your visit to the Web Site. We reserve the right to make changes to our site, policies, and these Conditions of Sale and Use at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.

Our Address

Triumphant Heart International, Inc.
1442 E. Lincoln Avenue, #476
Orange, CA 92865

Notice and Procedure for Making Claims of Copyright Infringement

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the Web Site’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying Triumphant Heart International, Inc. that your copyrighted material has been infringed.

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed upon;
A description of where the material that you claim is infringing is located on the site, including the auction ID number, if applicable;
Your address, telephone number, and e-mail address;
A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Triumphant Heart International, Inc.’s Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows:

Copyright Agent

Triumphant Heart International, Inc.

1442 E. Lincoln Avenue, #476

Orange, CA 92865

phone: (888) 906-1158

fax: (888) 906-1157

Web Design Service

You acknowledge and agree that Triumphant Heart International shall have the right (but not the obligation) in its sole discretion, to pre-screen, refuse or remove any project and/or user provided content for any reason, including, but not limited to, those that violates these Terms and Conditions or is otherwise objectionable, including, without limitation, projects or content that is illegal, obscene, indecent, defamatory, incites religious, racial or ethnic hatred, or violates the rights of others. Activity that is brought to our attention which appears in our sole judgment to violate the law will be brought to the attention of the proper authorities. You acknowledge, consent and agree that Triumphant Heart International may access, preserve, and disclose your account information and content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms and Conditions; (c) respond to claims that any content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Triumphant Heart International, its clients and the public.

1. Triumphant Heart International Web Design Service Generally

(a) Description. The Triumphant Heart International Web Design Service is an online and in-person offering where individuals or entities that have signed up with Triumphant Heart International as clients (each, a “Client”) can submit specific assignments and project descriptions, including illustrative samples or other media (each, a “Creative Brief”), revise those Creative Briefs (each, a “Revision Brief”) and obtain responses (each, a “Response”) to those Creative or Revision Briefs from design experts retained by Triumphant Heart International (”Members”). Triumphant Heart International will provide you, as the Client, the Service according to the Package you have chosen. Your Responses will be created iteratively through a drafting cycle of Creative Briefs, Revision Briefs and Responses, ultimately resulting in a final Response conforming to your various Creative and Revision Briefs.

(b) Creative Brief and Responses. You are solely responsible for preparing and submitting detailed descriptions in each of your completed, hand-signed Creative Brief to Triumphant Heart International in person to a Triumphant Heart International representative or via United States Postal Service Registered Mail to our address, including providing samples illustrating your Creative Brief and any relevant deadlines. With your Creative Brief, you agree to supply any and all images, text, and content that you wish to be included in your project. You agree to supply your Creative Brief and all images, text, and content that you wish to be included in your project in a single submission. You agree that your Creative Brief and all images, text, and content that you wish to be included in your project may not be submitted in multiple parts. For each Response to a Creative Brief that you want to receive, a term sheet (a “Term Sheet”) will be generated that will contain, and be subject to, the terms and conditions you have established for the Creative or Revision Brief. Triumphant Heart International is under no obligation to review a Creative or Revision Brief or Term Sheet for any purpose, including accuracy, completeness of information, quality or clarity. Triumphant Heart International may decide, in its sole discretion, to deny a Creative or Revision Brief or a Term Sheet.

(c) Reviewing Responses. When Triumphant Heart International provides you with a Response, you are responsible for reviewing the Response. If you fail to promptly inform Triumphant Heart International that the Response is not reasonably responsive to the related Term Sheet or Creative Brief, you will be deemed to have accepted the Response. If you notify Triumphant Heart International that you think a Response is not reasonably responsive to the related Creative Brief in person to a Triumphant Heart International representative or via United States Postal Service Registered Mail to our address, a hand-signed Revision Brief containing information regarding amendments or modification to be made to the initial Response. After you provide Triumphant Heart International with a hand signed Revision Brief, Triumphant Heart International will provide you with a subsequent Response that conforms to the additional criteria you requested. Triumphant Heart International is not responsible for the content of Responses developed to the extent that such Responses are prepared to conform to your Creative or Revision Briefs.

(d) Revision Cycles. Revision cycles generally consist of 1-3 additional compositions that incorporate changes you request in a Revision Brief. The purpose of the revision process is to create Responses that move your project forward in the specific direction you have determined. You may request significant changes in the first and second cycles, and the Responses generated might be quite different in nature from the original composition you selected. By the third revision request, your requests shall be modifications of the current composition only. Revision requests that depart from the then-current composition will be honored and completed in a timely manner, however; Triumphant Heart International reserves the right to charge $300 for each such Revision. No revision work, which requires payment, will be started without your authorization. The Revision cycle ends when you provide Triumphant Heart International an original, hand-signed and dated Revision Brief AND Proofs stating that no further revisions are necessary. You will provide Triumphant Heart International with an original, hand-signed and dated Revision Brief and Proof via United States Postal Service Registered Mail or in person.

(e) Delivery. Upon Triumphant Heart International’s receipt of an original, hand-signed and dated Revision Brief stating that no further revisions are necessary, Triumphant Heart International shall make delivery of your package. At this time, in the case of website packages, your package shall be online and available to the public and your old website will be deleted and removed. For website packages, at time of delivery, only the text, images, and content submitted with your Creative Brief will be online. For website packages, you agree that your website may experience a 72-hour period of unavailability to the public while your package is being delivered. In the case of print packages, see your package details for delivery information.

(f) Feedback. Upon delivery of your package, you will submit to Triumphant Heart International an original, hand-signed and dated Feedback form that indicates that Triumphant Heart International has satisfied its contractual obligations to you. You will provide Triumphant Heart International such a Feedback form via United States Postal Service Registered Mail or in person. In the case of website packages, upon delivery of your package you will have 15 days to submit such a Feedback form to Triumphant Heart International. If Triumphant Heart International has not received such a Feedback form from you, you agree that your access to your website package shall be interrupted and your website will be removed from public access until such time you submit such a Feedback form. In the case of print packages, you will submit such a Feedback form immediately and will delivery of your print package shall be made.

(g) Packages. You may select from the following Product Packages:

Sure Foundation Package: Front page, with custom graphics and text provided by you. ONE template that can be used for an unlimited number of “pages” and “posts”. Wordpress enabled website. Does not include cost of web hosting services and domain registration. You provide the text and images.

Small Business and Community Package: Front page, with custom graphics and text provided by you. “Three” inner page designs, including: a “pages” template that can be used for unlimited pages; a “individual” template that can be used to display unlimited articles (products); and a “posts” template that can be used to display current and past blog posts. Website users cannot submit comments or engage in conversation through the site. Wordpress enabled website. Does not include cost of web hosting services and domain registration. You provide the text and graphics.

Profit or Non-Profit Package: Front page, with custom graphics and text provided by you. “Three” inner page designs, including: a “pages” template that can be used for unlimited pages; a “individual” template that can be used to display unlimited articles (products); and a “posts” template that can be used to display current and past blog posts. Website users can submit comments to blog “posts”. Does not include a user or profile page, user photos, emoticons or other such user-specific features. Wordpress enabled website. Shopping cart or donor system enabled. Does not include cost of web hosting services, domain registration, donor system and shopping cart services. You provide the text and graphics.

Corporate Package: Front page, with custom graphics and text provided by you. “Three” inner page designs, including: a “pages” template that can be used for unlimited pages; a “individual” template that can be used to display unlimited articles (products); and a “posts” template that can be used to display current and past blog posts. Wordpress enabled site. Comments and user-sign-in enabled. Constituent management enabled using Blackbaud Sphere. Shopping cart or donor system enabled. Does not include cost of web hosting services, Blackbaud Sphere service, domain registration, and shopping cart services. You provide the text and graphics.

Sure Edit: Your document will be proofed for general grammatical errors and spelling errors. Stylistic recommendations will be made. Final product will be in the form similar to that of the specimen/sample included when you submit your creative brief when you submission is digital. If your submission is not digital, your product will be delivered to you in a digital format. Revisions cycles shall be limited to one revision cycle. Further revisions can be purchased at a price determined by Triumphant Heart International.

Extended Package: For clients who have purchased Sure Foundation, Small Business and Community, Profit or Non-Profit, or Corporate Package only. Up to 25 of the following jobs per month: page placement or update (including text and image placement) or page removal; online newsletter publication using Aweber or Constant Contact service, website traffic report, login or credential change. Please note that this package does not provide template products, such as those that make changes to the graphic interface of your pages. Furthermore, Aweber, Constant Contact, and other service fees are not included in this package price. Submissions of Creative Briefs must be done online through our secure system at http://www.triumphantheart.com/?page_id=27.

(h) Branding, Advertisements, Links, and Archiving. You agree to display the text “Website by Triumphant Heart Intl, Inc.” linked to http://www.triumphantheart.com at the bottom of your entire website for a period no less than 36 months or until your website is made permanently inactive (whichever comes first). Furthermore, you agree that Triumphant Heart International may display up to six links of its choosing in the “footer” of your entire website for a period no less than 36 months or until your website is made permanently inactive (whichever comes first). You agree not to modify, disable, or remove the text “Website by Triumphant Heart Intl, Inc.” linked to http://www.triumphantheart.com or the six links during this time period. You may opt-out of this section of this agreement at any time for a single payment of $500. You agree that Triumphant Heart International shall place a file called “robots.txt” in your web hosting account that shall limit the ability of certain Internet services, hosts, and providers from archiving and indexing your website. If you wish to remove this file, you may do so after Triumphant Heart International has fulfilled its obligations to you. You agree that it is your sole responsibility to determine the effect this file shall have on your website’s ability to be visible by search engines or other Internet services, hosts, and providers, and take action accordingly.

(i) Client Accounts. When you register for the Service, you must pay for the Service via credit card, or other payment method expressly authorized by Triumphant Heart International. You will be charged for the Package you have selected. If you pay by credit card, you will be required to provide a valid credit card number and credit card billing address when registering as a Client. Triumphant Heart International will email you a receipt for the transactions in which you are involved. Our fee policy for Clients may change and we may decide to impose additional fees on Clients at any time; however, such additional fees will not apply to projects submitted before Triumphant Heart International implements any such change in fees.

(j) Refunds. If you are not satisfied with the initial Responses to your Creative Brief provided by Triumphant Heart International, and have paid the full fee up-front, you may request a refund by completing the Refund Request form within 3 days of the initial Responses being provided to you by Triumphant Heart International. The Refund Request form will be provided to you upon request. Upon timely receipt of the completed form, Triumphant Heart International will refund the total payment made by you, less a five hundred dollar ($500.00) service and processing fee. No refund will be given after the one or more of the initial Responses have been accepted. In addition, refunds are only available to the actual Client for whom the Project was created. No refund is available for design firms or for those who order our design services on behalf of another entity. Furthermore, you shall forfeit the right to the refund outlined above if you request additional revisions to any of the initial concepts. You shall also forfeit the right to a refund if you do not respond in a timely manner to a status notification from Triumphant Heart International, as described below. No refunds available for Extended Package fees. Should you receive a refund, you agree that your acceptance of the refund shall constitute your sole and exclusive remedy with respect to related Responses. Additionally, you acknowledge that you will have no right (express or implied) to use any Response or other work product, content, or media, nor will you have any ownership interest in or to the same.

(k) Cancellation. In the case of your purchase of the Extended Package: You may cancel at any time. Fees assessed for the current billing cycle will not be refunded. For all other ‘cancellation’ matters regarding other packages, please refer to ‘Refunds’.

(l) Return of Materials. You agree that Triumphant Heart International is not responsible to return, preserve, or protect any materials supplied by you with your Creative Brief or Revision Briefs. You agree that any materials supplied by you with your Creative Brief or Revision Briefs need not be returned to you by Triumphant Heart International.

(m) Project Duration. You agree to provide timely responses to any status notifications that Triumphant Heart International sends to you. You shall have 15 days to respond to each Creative Brief or Response sent to you. If after 15 days you have failed to respond, Triumphant Heart International will assume that your project is complete and the project shall be deemed completed. At such time, Triumphant Heart International will have no further obligation to you, and you will pay Triumphant Heart International pursuant to the provisions of these Terms and Conditions. Notwithstanding the foregoing, Triumphant Heart International reserves the right, in its sole discretion, to terminate your access to all or a portion of the Service, at any time, with or without notice. In the event of such termination, Triumphant Heart International will determine, in its sole discretion, whether you are entitled to any refund.

(n) Performance of Services. The manner in which the Service is to be performed and the specific hours to be worked by Triumphant Heart International shall be determined by Triumphant Heart International. You will rely on Triumphant Heart International to work as many hours as may be reasonably necessary to fulfill Triumphant Heart International ’s obligations under these terms.

2. Eligibility, Access, Use and Service

(a) Eligibility Requirements. To register as a Client, you must be at least 18 years of age, agree to these Terms and Conditions and Triumphant Heart International’s privacy policy (located at www.triumphantheart.com/privacy), and complete the registration procedure. By registering as a Client, you represent and warrant that you meet these eligibility requirements, that the information you include as part of the registration process is complete and accurate and, if you are registering on behalf of an entity, that you are authorized to bind that entity to these Terms and Conditions. If you purchase a web design package, you must contract with Nexcess.net for a Shared Hosting Plan including Wordpress service. Triumphant Heart International may accept or reject your registration in its sole discretion.

(b) Authorization to Use; Permitted Uses. You may access and use the Service solely in accordance with these Terms and Conditions and any posted policies and procedures that appear on the Web Site. You may provide Creative Briefs and obtain Responses only if you register as a Client. Any use of the Web Site is at your sole risk and responsibility. Subject to these Terms and Conditions, you may (i) display the Web Site on an Internet access device, and (ii) on an occasional, infrequent and ad hoc basis, and only in circumstances that constitute “fair use” under United States copyright law, print copies of insubstantial portions of the Web Site.

(c) Prohibited Uses. Except as expressly permitted in these Terms and Conditions, you may not display or print the Web Site and in no event may you broadcast, circulate, distribute, download, perform, publish, rent, reproduce, sell, store, transmit or create decorative works from the Web Site or initial Responses. Additionally, you agree to comply with all applicable laws (including, without limitation, any applicable export controls) in connection with your use of the Service, and with such further limitations or rules as may be set forth on the Web Site. Without limiting the foregoing, you agree not to transmit, distribute, post, communicate or store information or other material on, to or through the Web Site that (i) is copyrighted, unless you are the copyright owner; (ii) reveals trade secrets, unless you own them; (iii) infringes on any other proprietary or intellectual property rights of others, on the privacy or publicity rights of others, or any statutory right; (iv) is obscene, defamatory, threatening, harassing, abusive, hateful, or embarrassing to any other person or entity; (v) is sexually-explicit; (vi) constitutes advertisements or solicitations of business, chain letters or pyramid schemes; or (vii) contains viruses, Trojan horses, worms, time bombs, or other computer programming routines or engines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information. You further agree not to (a) use any incomplete, false or inaccurate biographical information or other information for purposes of registering as a Client; (b) delete or revise any material or other information of any other user of Triumphant Heart International; (c) take any action that imposes an unreasonable or disproportionately large load on the Web Site’s infrastructure; (d) use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any activity being conducted on the Web Site; (e) use or attempt to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Web Site, other than the search engine and search agents available from Triumphant Heart International on the Web Site and other than generally available third-party web browsers (e.g., Microsoft Internet Explorer and Netscape Navigator); or (f) attempt to decipher, decompile, disassemble or reverse-engineer any of the software comprising or in any way making up a part of the Web Site.

(d) Web Site Security. You are prohibited from violating or attempting to violate the security of the Web Site, including, without limitation, (i) accessing data not intended for you or logging into a server or account that you are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any user, host or network, including, without limitation, by way of submitting a virus to, or overloading, “flooding”, “spamming”, “mailbombing” or “crashing”, the Web Site; (iv) sending unsolicited email to any user of the Web Site, including promotions and/or advertising of products or services; or (v) forging any TCP/IP packet header or any part of the header information in any email or posting generated in connection with the Service. Violations of system or network security may result in civil or criminal liability. Triumphant Heart International will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. Triumphant Heart International reserves the right to review postings on the Web Site, to remove any postings, and to terminate your ability to communicate with, or post to, the Web Site at any time without notice, in its sole discretion. Triumphant Heart International will use commercially reasonable efforts not to disclose any information you communicate with, or post to, the Web Site, but reserves the right to disclose such information to the extent necessary to satisfy any applicable law, regulation, legal process or governmental request, and the right to edit, refuse to post or to remove any information or materials, in whole or in part.

(e) Operation of Web Site. Triumphant Heart International shall not be responsible for any delays or interruptions of, or errors or omissions contained in, the Web Site. Triumphant Heart International reserves the right, but shall not be required, to correct any such delays, interruptions, errors or omissions. Although Triumphant Heart International intends to use commercially reasonable efforts to make the Web Site and Service accessible, Triumphant Heart International makes no representation, warranty or covenant that the Web Site or Service will be available at all times or at any time. Various circumstances may prevent or delay availability, including telecommunications and/or server problems. Triumphant Heart International may at any time discontinue the Web Site in whole or in part, may change or eliminate any transmission method, and may change transmission speeds or other signal characteristics. Triumphant Heart International shall not be responsible for any loss, cost, damage or liability that may result from any of the circumstances, actions or inactions described in this paragraph.

(f) Your Responsibility to Protect Your Data: You understand and agree that prior to contacting or allowing Triumphant Heart International to perform its services, it is your responsibility to back-up the data, software, information or other files stored on any and all volumes that you own, rent, and/or utilize on which your site is stored, accessed, or will be stored or accessed. You acknowledge and agree that Triumphant Heart International shall not be responsible under any circumstance for any loss or corruption of data and/or software.

3. Registration, Password, User Identity

(a) Your User Identity. When you register as a Client, you will create a user identity (your “User Identity”), which will be your identity for purposes of interacting with other users through the Web Site, email, and other correspondence. Your User Identity will include certain personal information, such as, the industry in which you operate. However, your user name need not be your real name. During the registration process, the fields requesting information that will be made available to others as part of your User Identity are identified. You are responsible for ensuring that you are comfortable making such information available to other Web Site users.

(b) Access Numbers, Passwords, and Password Access. You shall keep confidential, shall not disseminate, and shall use solely in accordance with these Terms and Conditions, your User Identity, registration identification and password for the Web Site. You shall immediately notify Triumphant Heart International if you learn of or suspect: (i) any loss or theft of your User Identity, registration identification or password, or (ii) any unauthorized use of your registration identification or password or of the Web Site. In the event of such loss, theft, or unauthorized use, Triumphant Heart International may impose on you, at Triumphant Heart International’s sole discretion, additional security obligations.

(c) Security Breaches and Revision. If any unauthorized person obtains access to the Web Site as a result of any act or omission by you, you shall use your best efforts to ascertain the source and manner of acquisition and shall fully and promptly inform Triumphant Heart International. You shall otherwise cooperate and assist in any investigation relating to any such unauthorized access.

4. Ownership; Rights to Use

(a) Web Site and Service Generally. Except as expressly contemplated under these Terms and Conditions, as between Triumphant Heart International and you, Triumphant Heart International will own all right, title and interest in and to all copyright, trademark, service mark, patent, trade secret or other intellectual property and proprietary rights in and to the Web Site and Service, in all media now known or later devised, to the fullest extent provided under United States and international law. You shall not remove, conceal or alter any copyright notice, byline information, disclaimer, restriction or other notice on the Web Site or any portion thereof. You shall not use or permit any third party to use the name, trademarks, trade names, or trade dress of Triumphant Heart International, including “Triumphant Heart International”, without the prior written consent of Triumphant Heart International, as determined in its sole discretion, for each such use.

(b) Creative and Response Briefs. Upon submission of a Creative or Response Brief or any other information or media provided by you in connection with your use of the Service (collectively, the “Client Information”), Triumphant Heart International and its agents shall have all rights and licenses necessary to use such Client Information for the purpose of obtaining Responses and for archival purposes.

(c) Rights of Triumphant Heart International. Upon your submission of Client Information to the Service, you grant Triumphant Heart International and its agents a royalty-free, perpetual, irrevocable, sublicenseable, exclusive, worldwide right (including any moral rights) and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform and display (in whole or in part), and/or incorporate in other works, in any form, media, or technology now known or later developed, such Client Information, for the full term of any intellectual property rights that may exist in such Client Information to the extent necessary to provide you with the Service and Responses.

(d) Rights of Clients. Subject to your compliance with these Terms and Conditions, you shall own the final the Response composition provided to you by Triumphant Heart International (the “Final Product”). You shall not, however, own any materials, media or other content generated during any revision cycles leading up to the Final Product, and Triumphant Heart International expressly reserves all right, title and interest in and to the same. You acknowledge and hereby grant to Triumphant Heart International a royalty-free, irrevocable exclusive worldwide right to use Creative and Revision Briefs, individual Responses provided to you, and Final Product for internal and archival purposes, and in order to display and promote the Triumphant Heart International Service. Triumphant Heart International retains the rights to all artwork concepts and other content not selected by you. You acknowledge that your ownership rights under these Terms and Conditions are limited to the Final Product, and that no trademarks or service marks in or to any Final Product are being conveyed under these Terms and Conditions. You hereby acknowledge that Triumphant Heart International shall have no obligation or duty to perform trademark, service mark or copyright searches or inquiries, or the like, in order to validate the propriety or legality of the Final Product. Accordingly, you are encouraged to perform your own independent searches with regard to the Final Product. Furthermore, you acknowledge that Triumphant Heart International shall have no responsibility or obligation of any kind to assist you in seeking state or federal intellectual property protection (i.e., without limitation, trademark or copyright registration) for the Final Product, nor shall Triumphant Heart International be responsible for otherwise assisting you in any way in your attempt to perfect your rights in or to the Final Product.

5. Nondisclosure and Privacy

Triumphant Heart International intends to use commercially reasonable efforts to follow its privacy policy, as such privacy policy may be changed from time to time at Triumphant Heart International’s sole discretion. Notwithstanding the foregoing, Triumphant Heart International cannot and does not assume any responsibility or liability for any information submitted to the Web Site or for the use or misuse of any information submitted by you or any other person, including, without limitation, any information accessed by a hacker or by any other malicious act.

6. Disclaimers; Indemnification; Limitations of Liability

(a) Responsibility for Content. Triumphant Heart International shall not be responsible for any use that is or is not made of the Web Site or the Service. Without limiting the foregoing, Triumphant Heart International makes no representations, warranties or covenants regarding, and does not guarantee, the truthfulness, accuracy, or reliability of any information or other material (including, without limitation, any Creative Brief, Term Sheets, Responses or User Identity) that are communicated through, or posted to, the Service, whether by Members, Clients, Triumphant Heart International or otherwise, nor does Triumphant Heart International endorse any opinions expressed by any user of the Web Site, including any Member or Client. Without limiting the foregoing, Triumphant Heart International makes no representations, warranties or covenants regarding the validity of the rights to Responses granted pursuant to these Terms and Conditions. You acknowledge that any reliance on information or other material, including, without limitation, any information related to a particular Package or your project, Term Sheet, Response or User Identity, communicated through the Service, or posted to the Web Site, will be at your own risk. Without limiting the foregoing, you agree and acknowledge that you use each Response at your own risk and that you are responsible for taking any actions you deem reasonable to determine whether your use of a Response will infringe any statutory or third-party intellectual property, privacy or publicity rights. Without limiting the foregoing, you agree and acknowledge that you use the Service at your own risk and that you are responsible for taking any actions you deem reasonable to determine your cost and liability for your use of the Service, including, but not limited to, bandwidth, licensing, hosting, and third-party services or products.

(b) Disclaimer of Guarantee and Estimate. Although Triumphant Heart International may offer an opinion about possible results, Triumphant Heart International cannot guarantee any particular result. You acknowledge that Triumphant Heart International has made no promises about the outcome, and that any opinion offered by Triumphant Heart International in the future will not constitute a guarantee. Nothing in the Service and nothing in Triumphant Heart International’s statements to you will be construed as a promise or guarantee about the outcome of the matter. Triumphant Heart International makes no such promises or guarantees. Triumphant Heart International’s comments about the outcome of the matter are expressions of opinion only. Any estimate of fees regarding services, given by Triumphant Heart International shall not be a guarantee. Actual fees may vary from estimates given.

(c) Links to Third-Party Services. The Web Site may contain links to third-party web sites or other services (the “Linked Content”). The Linked Content is not under the control of Triumphant Heart International and Triumphant Heart International is not responsible for the Linked Content, including, without limitation, links contained in the Linked Content, or any changes or updates to Linked Content. Triumphant Heart International is providing Linked Content to you only as a convenience, and the inclusion of such Linked Content is not an endorsement by Triumphant Heart International of such Linked Content. If you decide to access any Linked Content, you do so at your own risk.

(d) Disclaimer of Warranties. THE SERVICE AND THE RESPONSES ARE PROVIDED “AS IS.” TRIUMPHANT HEART INTERNATIONAL MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING IN ANY WAY TO THE WEB SITE, INCLUDING ANY PART THEREOF, OR ANY WEB SITE OR OTHER CONTENT OR SERVICE THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGH THE WEB SITE, INCLUDING ANY TERM SHEET, RESPONSE, USER IDENTITY OR LINKED CONTENT. TRIUMPHANT HEART INTERNATIONAL DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRIUMPHANT HEART INTERNATIONAL DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL (i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE WEB SITE, OR ANY PART THEREOF; (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE WEB SITE; AND (v) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NON-PERFORMANCE, OR OTHER ACTS OR OMISSIONS BY TRIUMPHANT HEART INTERNATIONAL OR ANY THIRD PARTY. FURTHERMORE, THERE IS NO WARRANTY THAT THE WEB SITE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON.

(e) Release from Claims. The Service serves solely as a venue for the creation of work and Triumphant Heart International does not regularly screen or censor any information or material posted to the Web Site. Although Triumphant Heart International makes commercially reasonable efforts to determine the identity of Clients, Triumphant Heart International cannot and does not confirm that any Client or other user is who they claim to be or that any Client or other user has the qualifications he or she claims to have. Because Triumphant Heart International does not and cannot be involved in user-to-user dealings or control the behavior of participants on the Web Site, if you have a dispute with one or more users, you hereby release Triumphant Heart International (and our affiliates, agents and employees) from claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

(f) Indemnification. You hereby agree to defend, indemnify and hold harmless Triumphant Heart International and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees from any action, claim, demand, or liability arising from or relating to your violation of any of these Terms and Conditions or use of the Web Site or Service, and any expenses incurred in connection therewith, including, without limitation, reasonable attorneys’ fees.

(g) Limitation of Damages. IN NO EVENT SHALL THE COMPANY OR ANY THIRD PARTY BE LIABLE TO YOU OR ANY OTHER PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES ARISING UNDER OR IN ANY WAY RELATED TO THE WEB SITE OR SERVICE, INCLUDING ANY PART THEREOF, OR THESE TERMS AND CONDITIONS OR ANY OTHER CONSENT (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, TRADING LOSSES, AND DAMAGES THAT RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE SERVICE) EVEN IF TRIUMPHANT HEART INTERNATIONAL OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TRIUMPHANT HEART INTERNATIONAL’S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL AMOUNT YOU PAID TO TRIUMPHANT HEART INTERNATIONAL FOR YOUR PACKAGE UNDER THESE TERMS AND CONDITIONS.

(h) Referrals to Third-Party Services. Triumphant Heart International may refer you to third-parties for services (the “Third-Party Service”). The Third-Party Service is not under the control of Triumphant Heart International and Triumphant Heart International is not responsible for the Third-Party Service, including, without limitation, any contract or service you retain with such Third-Party Service. Triumphant Heart International is providing Referrals to Third-Party Services to you only as a convenience, and the referral to such Third-Party Services is not an endorsement by Triumphant Heart International of such Third-Party Services. If you decide to inquire, or establish any contract with any Third-Party Service, you do so at your own risk.

7. Communication

By using the Triumphant Heart International Service, you agree to receive, via email or otherwise, status notifications, a monthly newsletter, and carefully selected special offers and promotions for certain products and services that we believe could be of value to our Clients. This is essential to maintaining the low-cost of our services. You are free to unsubscribe from any newsletters we send to you at any time. Triumphant Heart International may or may not use a third party to send email or otherwise contact you, however, your personal identifying information will never be disclosed or shared with another party in a manner inconsistent with Triumphant Heart International’s privacy policy.

You agree that it is your sole responsibility to maintain contact with Triumphant Heart International. You agree to notify Triumphant Heart International of any concerns or questions regarding the Service and/or these Terms and Conditions in writing by United States Postal Service Registered Mail to our address. You agree that you will respond to any written notification to you within 15 days of receipt in writing by United States Postal Service Registered Mail to our address. You agree that if after 15 days of your receipt of a written notification to you from Triumphant Heart International you have not sent a response in writing by United States Postal Service Registered Mail to our address, Triumphant Heart International has fulfilled its obligations to you under this agreement; at such time, Triumphant Heart International will have no further obligation to you.

8. Our Address

Triumphant Heart International, Inc.
1442 E. Lincoln Ave., #476
Orange, CA 92865

9. Defaults

(a) Notice. You agree that if Triumphant Heart International fails to abide by the obligations of these Terms and Conditions, you shall notify Triumphant Heart International in writing by United States Postal Service Registered Mail to our address. You agree Triumphant Heart International shall have the option to take corrective action that cures the default, if such corrective action is taken within 90 days of receipt of such a notice.

10. Miscellaneous Provisions

(a) Entire Agreement. These Terms and Conditions set forth the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede any and all prior oral or written agreements and understandings, and any and all contemporaneous oral agreements and understandings (excluding any associated agreements required by Triumphant Heart International (e.g., privacy policy) as a condition precedent to Clients’ use of the Service), between you and Triumphant Heart International regarding the subject matter of these Terms and Conditions. These Terms and Conditions with respect to the subject matter hereof supersede any and all prior oral or written agreements and understandings, and any and all contemporaneous oral agreements and understandings between you and Guy E. White. You agree that in the absence of any written agreement between you and Guy E. White in any previous matter, these Terms and Conditions shall apply.

(b) Amendment. No modification, amendment, or waiver of these Terms and Conditions or any part hereof shall be binding unless evidenced in writing and signed by Triumphant Heart International.

(c) Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision shall be deemed null and void, but the remaining provisions shall continue in full force without being impaired or invalidated in any way.

(d) Mutual Participation. The language of these Terms and Conditions shall be deemed to be the language mutually chosen by the parties and no rule of strict construction shall be applied against or in favor of either party hereto.

(e) Headings. The section headings and other headings contained herein shall not affect the meaning or interpretation of these Terms and Conditions.

(f) Choice of Law; Forum. These Terms and Conditions shall be governed by the substantive law of the State of California, without reference to any choice of law rules that would result in the application of the substantive law of any other jurisdiction. You agree any dispute relating in any way to your visit to the Web Site or to products or services sold or distributed by Triumphant Heart International, Inc. or through the Web Site in which the aggregate total claim for relief sought by you exceeds $2,500 shall be submitted to arbitration under the rules and regulations of the American Arbitration Association. All costs of arbitration shall be divided equally between the parties. Any award may be enforced by a court of law. With exception to those disputes submitted to arbitration, you agree all disputes shall be adjudicated in any state or federal court in Orange County, California, and you consent to exclusive jurisdiction and venue in such courts. The parties agree that any disputes arising out of or relating to these Terms and Conditions and not submitted to Arbitration shall be submitted to the federal courts having jurisdiction in Orange, California, or state courts having jurisdiction in the area in which such federal courts have jurisdiction, and the parties consent to the personal jurisdiction of such courts with respect to such disputes.

(g) Assignment. You may not assign or otherwise transfer (by operation of law or otherwise) any of your rights or duties hereunder unless Triumphant Heart International agrees in writing after receiving prior written notice. Any attempted assignment or other transfer without the requisite consent shall be null and void ab initio. Triumphant Heart International may assign or otherwise transfer any of its rights or the performance of any of its duties without your consent.

(h) Waiver. The waiver by Triumphant Heart International of a breach or a violation of any provision of these Terms and Conditions shall not operate as or be construed to be a waiver of any subsequent breach or violation of any provision of these Terms and Conditions.

(i) Independent Contractors. The parties and their respective personnel are and shall be independent contracts and neither party by virtue of these Terms and Conditions shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

(j) Force Majeure. If the performance of any part of these Terms and Conditions by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that such performance is prevented, hindered or delayed by such causes.

(k) Capacity. The parties hereby warrant and represent that they have all necessary rights and authority to execute these Terms and Conditions and to fulfill their obligations hereunder.

(l) Employees. The parties agree that any employees and authorized representatives who perform services under this agreement shall also be bound by these Terms and Conditions. You agree that your employees and authorized representatives may act alone in approving Responses and Revision Briefs on your behalf.

(m) Further Assurances. The parties hereto shall, at their own cost and expenses, execute and deliver such other documents, artwork, programming code and instruments and shall take such other action as may reasonably be required or appropriate to evidence or carry out the intent and purposes of these Terms and Conditions.

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