Welcome to Prodeology! These Terms of Service (these “Terms") of Formagrid Inc, dba Prodeology ("we," "our," or "us") are an agreement that describes your rights and responsibilities as an Prodeology customer.
More specifically, these Terms govern how you may access and use: (i) Prodeology.com, its subdomains, and any other website where these Terms are posted; (ii) Prodeology’s online hosted services; and (iii) Prodeology’s "Software," meaning, collectively, our browser extensions, integrations, mobile applications, other downloadable apps, application programming interfaces ("APIs"), and tools and documentation ((i) through (iii) collectively, our "Service" or "Prodeology").
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. BY CREATING AN Prodeology ACCOUNT, CLICKING “SIGN UP”, “SIGN UP WITH GOOGLE”, “SIGN UP FOR FREE”, “SUBMIT”, OR THE LIKE INDICATING ACCEPTANCE ELECTRONICALLY, AGREEING TO THESE TERMS IN AN ORDER FORM OR OTHER ORDERING DOCUMENT REFERENCING THESE TERMS, OR BY ACCESSING OR USING Prodeology, WHETHER OR NOT YOU ARE A REGISTERED USER OF Prodeology, YOU SIGNIFY THAT: (I) YOU HAVE READ, HAVE UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS; (II) YOU HAVE READ, UNDERSTAND, AND AGREE TO COMPLY WITH OUR ACCEPTABLE USE POLICY, AS UPDATED FROM TIME TO TIME (“ACCEPTABLE USE POLICY”), AND IS INCORPORATED INTO THESE TERMS BY REFERENCE; AND (III) YOU HAVE READ, UNDERSTAND, AND ACKNOWLEDGE OUR PRIVACY POLICY. WE RESERVE ALL RIGHTS NOT EXPRESSLY GRANTED UNDER THESE TERMS.
THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT IN SECTION 14.2 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 14.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS IN SECTIONS 14.1 AND 14.2 OR UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 14.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
If you are an individual and you access or use Prodeology on behalf of a company, organization, principal, or other entity, such as your employer (each, together with its affiliates, an "Organization"), then: (i) these Terms of Service are an agreement between us and you and us and that Organization; (ii) you represent and warrant that you have the authority to bind that Organization to these Terms (and if you do not have the authority, you may not access or use Prodeology); (iii) your acceptance of these Terms will bind such Organization to these Terms; (iv) your individual right to access and use Prodeology may be suspended or terminated (and ownership and administration of your Prodeology Account may be transferred) if you cease to be associated with, or cease to use an email address associated with, owned by, or provisioned by, that Organization; (v) we may disclose information regarding you and your use of the Service, including Your Content (defined below), to such Organization, or to appropriate individuals associated with that Organization; and (vi) the terms “you” and “your”, as used in these Terms, refer to both you and such Organization. If you sign up for Prodeology using an email address associated with, owned by, or provisioned by an Organization, or if an Organization pays fees due in connection with your access to or use of Prodeology (or reimburses you for payment of such fees), or otherwise, then we may deem you, in our sole discretion, to be accessing and using Prodeology on behalf of that Organization. You represent and warrant that all information that you provide to us regarding any Organization on whose behalf you use Prodeology, including information identifying other users associated with such Organization or email domains owned by such Organization, is and at all times will be truthful, accurate, and complete, and that you will immediately notify us should any such information change or no longer be truthful, accurate, or complete.
You may use Prodeology only if you can form a legally binding contract with us (and on behalf of your Organization as applicable), and only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations. To use Prodeology, you must be at least 16 years old, and in some circumstances even older (please check your local law for the age of digital consent). You represent and warrant that you meet the applicable age requirements and are competent to agree to these Terms, or, if you are unable to form a binding contract under applicable law, you represent and warrant that you have your parent’s or legal guardian’s permission to use Prodeology, and that your parent or legal guardian is agreeing to these Terms concurrently. If you are a parent or legal guardian of an Prodeology user who is unable to form a binding contract under applicable law, you are agreeing to these Terms and you are responsible for such Prodeology user’s activity on Prodeology. Prodeology is not available to any users who were previously removed from the Service.
Subject to your compliance with these Terms, you may access and use Prodeology during the Subscription Term (defined below), except as may be limited by your Organization. Except as we otherwise agree in writing or to the extent a restriction is prohibited by law, you must comply with our Acceptable Use Policy.
Your account on Prodeology (your "Prodeology Account") gives you access to the services and functionality that we may establish and maintain from time to time. We may maintain different types of Prodeology Accounts for different types of users. You acknowledge and agree that you do not own your Prodeology Account.
You may not use another user’s Prodeology Account without such user’s permission. You are solely responsible for the activity that occurs on your Prodeology Account, and you must keep your Prodeology Account password(s) strong and secure. You should notify us immediately of any breach of security or unauthorized use of your Prodeology Account. Any individual with administrator-level access to your Prodeology Account can modify your Prodeology Account settings, access and billing information. We will not be liable for any losses caused by any unauthorized use of your Prodeology Account, or for any changes to your Prodeology Account, including your ability to access your Prodeology Account or Your Content (defined below), made by any individual with administrator-level access to your Prodeology Account.
You may control certain aspects of your Prodeology Account profile and how you interact with Prodeology by changing the settings in your settings page. If you provide us with your email address, we may use the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other marketing or advertising messages, such as changes to features of Prodeology and special offers. If you do not want to receive such email messages, or by clicking the unsubscribe link within each marketing or advertising message. Opting out will not prevent you from receiving Service-related notices.
As between us and you, you (or your licensors) will own any and all information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from you (or on your behalf) by or through Prodeology ("Your Content"). For an Organizational account, we may assume, in our sole discretion, that all of Your Content belongs to that Organization. Notwithstanding the foregoing, you acknowledge and agree that we may retain, take possession of, delete, or deny you access to Your Content if we believe, in our sole discretion, that some or all of Your Content, or your use of Prodeology, violates these Terms (including our Acceptable Use Policy).
You (on behalf of yourself and your Organization, if applicable, and your other licensors) grant, and you represent and warrant that you have all rights necessary to grant, us an irrevocable, transferable, sublicensable (through multiple tiers), fully paid, royalty-free, and worldwide right and license to use, copy, store, modify, and display Your Content: (i) to provide, maintain, improve, and optimize use of Prodeology; (ii) to perform such other actions as authorized by you in connection with your use of Prodeology; and (iii) for any other purpose consistent with the Privacy Policy.
If you are an individual using Prodeology on behalf of an Organization and are collaborating with other employees or other individuals who have access to Your Content under your Prodeology Account, or if you share Your Content with other individuals within or outside of such Organization, the content on your Prodeology Account that you make available to such other individuals (as well as other information, such as the names and contact information of other individuals who have access to your workspace(s) or Your Content within Prodeology) will be visible, accessible, and, depending on their designated level of access, editable by such individuals.
You can remove Your Content from your Prodeology Account by deleting it. However, in certain instances, some of Your Content may not be completely removed. We are not responsible or liable for the removal or deletion of any of Your Content, or any failure to remove or delete such content.
In connection with Your Content, you represent and warrant that: (i) you have all necessary rights, licenses, and consents to provide, receive, access, and/or use Your Content and any other content you provide, receive, access, and/or use through or in connection with Prodeology; and (ii) Your Content and our use thereof as contemplated by these Terms and our Service will not violate any law or infringe any rights of any third party, including any intellectual property rights and privacy rights.
We take no responsibility and assume no liability for Your Content. You shall be solely responsible for Your Content and the consequences of posting it, publishing it, sharing it, or otherwise making it available on Prodeology. You shall be solely responsible and indemnify us for Your Content.
To the extent you receive our Software, subject to your compliance with these Terms, during the applicable Subscription Term, we grant to you a non-exclusive, non-transferable, non-sublicensable right and license to use our Software solely as reasonably necessary for your use of Prodeology in accordance with these Terms.
You may cancel your Prodeology Account at any time through your Account Settings page, though we will be sorry to see you go. We may change Prodeology, stop providing Prodeology or features of Prodeology to you or to our users generally, or create usage limits for Prodeology. We may permanently or temporarily terminate or suspend your access to Prodeology without notice or liability, without cause or for any reason, including if in our sole discretion you violate any provision of these Terms. Upon termination, you continue to be bound by these Terms.
In our sole discretion, we may make available to you certain product features on a trial basis, and such trial may be designated by us as an alpha, a beta, a pilot, a limited release, a test period, a developer preview, or an evaluation, or using another similar term (“Product Trial”). You may participate in any Product Trial, subject to these Terms and any additional terms and conditions made available by us. You acknowledge that product features made available to you as part of a Product Trial (“Trial Features”) might contain bugs, errors, or omissions. Trial Features are provided to you for testing purposes only, on an “AS IS” basis, without any warranty, liability, indemnity, or performance obligations. Trial Features are not subject to any service level agreements or support commitments. Trial Features might never be made available for general use or otherwise be provided in a future version of our Service, and we may discontinue Trial Features, or revoke your access to Trial Features, at any time for any or no reason, in our sole discretion, without any liability to you. Discontinuing Trial Features, or making Trial Features inaccessible to you, may have the effect of making some or all of Your Content inaccessible to you.
You acknowledge and agree that Prodeology and all materials and content displayed or made available on Prodeology, and all software, algorithms, code, technology, and intellectual property underlying and included in or with Prodeology, and all intellectual property rights therein and thereto throughout the world (collectively and individually, our "Intellectual Property"), are our (or our licensors’ as applicable) sole and exclusive property. Except as explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any intellectual property rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any of our Intellectual Property.
You may choose to, or we may invite you to, submit comments, feedback, or ideas about Prodeology, including about how to improve our Service ("Feedback"). You agree that Prodeology will own any such Feedback, and that we are free to use the Feedback without any additional compensation to you, and to disclose the Feedback on a non-confidential basis or otherwise to anyone. You acknowledge that, by accepting your submission of Feedback, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
We may offer plans that you may sign up for that allow you to use certain aspects of Prodeology, either for free or for a fee (a "Subscription Plan"). We may change Subscription Plans, including by offering new services or features for additional fees and charges or by adding or amending fees and charges for existing Subscription Plans, in our sole discretion. Any change to a Subscription Plan’s pricing or payment terms will become effective in the billing cycle following notice of such change to you as provided in these Terms. Subscription Plans may set allotments for use of designated Service aspects. Use of Service aspects in excess of a Subscription Plan’s designated allotment may result in (additional) fees, and such fees will be included in a true-up invoice or charged automatically via the payment method associated with your Prodeology Account ("Payment Method").
For any paid Subscription Plan, you agree to make payments, and we may automatically charge your Payment Method, as described below, for so long as your Prodeology Account remains active. Subscription Plans may be offered for a set subscription period (each such period, a "Subscription Term"). If you elect to sign up for a paid Subscription Plan, you agree to the pricing and payment terms specified at checkout, at www.Prodeology.com/pricing, or as otherwise posted or communicated to you, as we may update them from time to time. You must provide Prodeology with a current, valid, accepted Payment Method. When you initiate a purchase transaction, you authorize us to provide your payment information to third parties so we can complete your transaction and to charge your Payment Method, in United States dollars, for the type of transaction you have selected (plus any applicable taxes and other charges) and any applicable recurring charges as described below. You will pay applicable taxes, if any, relating to any such transaction and are also responsible for any payment-related fees such as wire transfer fees, credit card processing fees, and foreign transaction fees. We currently use Stripe as our third party service provider for payment services, and by using Prodeology you agree to be bound by Stripe’s Services Agreement, currently available at https://stripe.com/us/legal. If your payment is not successfully settled for any reason, you remain responsible for any amounts not remitted to us. All payments for transactions are non-refundable and non-transferable except as expressly provided in these Terms.
Your subscription continues until canceled by you or we terminate your access to or use of Prodeology in accordance with these Terms. Unless and until canceled by you, all Subscription Plans will automatically renew for renewal terms equal in length to the original Subscription Term. If you do not want a Subscription Plan to renew, you must cancel it before the end of the Subscription Term via the account settings page on your Prodeology Account). If you purchase a Subscription Plan, we (or our third-party payment processor) will automatically charge you each year or month, as applicable, on the anniversary of the commencement of your subscription, using the payment information you have provided, until you cancel your subscription. By agreeing to these Terms and electing to purchase a Subscription Plan, you acknowledge that your Subscription Plan has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your subscription by you or us.
If we cancel or terminate your Subscription Plan, except in the event of your breach or failure to pay fees when due, we will grant you a prorated refund for the remaining unused portion of your Subscription Term. If you cancel or terminate your Subscription Plan, your right to use Prodeology will continue until the end of your then-current Subscription Term and then terminate without further charges. Notwithstanding the foregoing, if you live in the European Union or Turkey and cancel your Subscription Plan within fourteen (14) days of purchase, you will be eligible for a refund of any payments made for the canceled Subscription Term, and, if you request such a refund, your right to use Prodeology will terminate immediately upon cancellation of your subscription. Subject to the preceding sentence, if you cancel or terminate your Subscription Plan, unless required by law, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF ANY FEES PAID FOR THE THEN-CURRENT SUBSCRIPTION TERM AT THE TIME OF CANCELLATION.
Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).
Any credits that may accrue to your Prodeology Account (for example, as a result of a promotion or referral program, or a Subscription Plan downgrade) will expire one year following their accrual, or upon expiration or termination of your Prodeology Account, whichever is earlier. Notwithstanding the foregoing, any credits accrued to a workspace on a free Subscription Plan will expire if the workspace’s Subscription Plan is not upgraded to a paid Subscription Plan within ninety (90) days of accrual, unless otherwise specified. Credits have no currency or exchange value, and are not transferable or refundable.
We may make available software to access our Service via a compatible mobile device ("Mobile Applications"). You may incur mobile data charges from your wireless provider in connection with the Mobile Applications, and you agree that you are solely responsible for any such charges. We grant you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for your Prodeology Account on one or more mobile devices owned or leased solely by you, solely in accordance with these Terms. You acknowledge that we may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof. We or our third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in these Terms, is void.
If you acquire any Mobile Applications from any third-party app store, such as the Apple App Store: (i) you acknowledge that these Terms are between you and us only, and not with such third party; (ii) your use of such Mobile Applications must comply with such third party’s then-current app store terms and conditions; (iii) such third party is only a provider of the app store where you obtained such Mobile Applications; (iv) we, and not such third party, are solely responsible for our Mobile Applications; (v) such third party has no obligation or liability to you with respect to such Mobile Applications or these Terms; and (vi) you acknowledge and agree that such third party is a third-party beneficiary to these Terms as it relates to such Mobile Applications.
We care about the privacy of our users. By using Prodeology you acknowledge that we may collect, use, and disclose your personal information and aggregate and/or anonymized data as set forth in our Privacy Policy, available at www.Prodeology.com/privacy, and acknowledge that you may have your personal information collected in, used in, transferred to, and processed in the United States. If your use of the Service requires us to process any personal data or personal information within Your Content, as these terms are defined in and in accordance with applicable privacy laws or regulations, we will do so at all times in accordance with our Privacy Policy and any applicable Data Processing Addendum (our "DPA"). You may access and sign our DPA here. Once executed, the DPA will be incorporated into these Terms by reference. In the event of any conflict between the DPA and the remainder of these Terms, the DPA will govern.
We have implemented measures designed to secure Your Content from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Your Content for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you provide Your Content at your own risk. You can learn more about our security practices at https://Prodeology.com/security .
Prodeology supports log-in using two-factor authentication (“2FA”), which is known to materially reduce the risk of unauthorized use of or access to the Service. Prodeology recommends that all users implement 2FA for their use of Prodeology. Notwithstanding anything to the contrary in these Terms, we will not be responsible for any damages, losses, or liability to you or anyone else if such damages, losses, or liability would have been prevented by the use of 2FA.
Prodeology respects the rights of copyright holders, as described in our Copyright Policy. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please use the process outlined in the Copyright Policy, which is incorporated into these Terms by reference.
OUR SERVICE MAY CONTAIN LINKS TO THIRD-PARTY MATERIALS THAT ARE NOT OWNED OR CONTROLLED BY US, WE MAY REFER YOU TO CERTAIN THIRD PARTIES WHO PROVIDE INDEPENDENT SERVICES RELATING TO OR SUPPORTING YOUR USE OF OUR SERVICE, AND CERTAIN FUNCTIONALITY OF OUR SERVICE MAY REQUIRE YOUR USE OF, OR MAY BE COMPATIBLE WITH, THIRD-PARTY SERVICES, SITES, INFORMATION, MATERIALS, PRODUCTS, APPLICATIONS, EXTENSIONS (INCLUDING EXTENSIONS FROM THE Prodeology MARKETPLACE), OR SERVICES (EACH, A "THIRD-PARTY SERVICE"). IF YOU USE A THIRD-PARTY SERVICE, YOU ARE SUBJECT TO AND AGREE TO THE THIRD PARTY’S TERMS OF SERVICE (OR OTHER APPLICABLE TERMS AND CONDITIONS) AND PRIVACY POLICY MADE AVAILABLE BY OR VIA THE THIRD-PARTY SERVICE. WE DO NOT ENDORSE OR ASSUME ANY RESPONSIBILITY FOR ANY SUCH THIRD-PARTY SERVICE (EVEN WHERE WE PERFORM A REVIEW OF THE FUNCTIONALITY OR SECURITY OF SUCH A THIRD-PARTY SERVICE, SUCH AS AN EXTENSION DEVELOPED BY A THIRD-PARTY AND MADE AVAILABLE THROUGH THE Prodeology MARKETPLACE). IF YOU ACCESS A THIRD-PARTY SERVICE FROM OR WITH Prodeology OR SHARE YOUR CONTENT ON OR THROUGH ANY THIRD-PARTY SERVICE, YOU DO SO AT YOUR OWN RISK, AND YOU UNDERSTAND THAT THESE TERMS AND OUR PRIVACY POLICY DO NOT APPLY TO YOUR USE OF SUCH SERVICES. YOU EXPRESSLY RELIEVE US FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY SERVICE.
You agree to defend, indemnify, and hold us and our affiliates, agents, suppliers, or licensors (and our and their employees, contractors, agents, officers, and directors) harmless from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including attorney’s fees) arising from: (i) your access to or use of Prodeology; (ii) your violation of any aspect of these Terms, including your breach of any of your representations and warranties; (iii) your violation of any third-party right, including any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule, or regulation; (v) Your Content, including without limitation any misleading, false, or inaccurate information in Your Content; (vi) your willful misconduct; or (vii) any third party’s access to or use of Prodeology with your username(s), password(s), or other security code(s).
OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF OUR SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE, OUR SUBSIDIARIES, OUR AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT ANY CONTENT ON OUR SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT OUR SERVICE WILL MEET YOUR REQUIREMENTS; THAT OUR SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT OUR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF OUR SERVICE OR ANY DOWNLOAD OF CONTENT THROUGH THE USE OF OUR SERVICE.
FEDERAL LAW, SOME STATES OR PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH OUR SERVICE; AND/OR (VII) YOUR DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES YOU PAID TO US HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO WHEN THE CLAIM AROSE OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
From time to time, either party to these Terms (the "Disclosing Party") may disclose or make available to the other (the "Receiving Party") non-public, proprietary, or confidential information of the Disclosing Party (“Confidential Information”). Confidential Information includes any information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology and marketing information. Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of the Receiving Party's breach of this Section 13; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in the Receiving Party's possession prior to the Disclosing Party's disclosure thereof; or (iv) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information.
The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially-reasonable degree of care; (ii) only use the Disclosing Party's Confidential Information, and only permit it to be accessed or used, for the purpose of exercising its rights or performing its obligations under these Terms, for the purpose of exploring a business relationship (or changes to the business relationship) between the parties, or for any other purpose consistent with the Privacy Policy; and (iii) not disclose any of the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party's service providers or financial/legal advisors who need to know the Confidential Information and are bound to confidentiality obligations at least as restrictive as those in these Terms.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially-reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party's sole cost and expense, a protective order or other remedy.
Each of the parties to these Terms acknowledges that the other party will be irreparably harmed if Confidential Information of the other is distributed in breach of this Section, and that such other party would not have an adequate remedy at law in the event of such an actual or threatened breach. Therefore, each of the parties agrees that the other party shall be entitled to seek injunctive relief against any actual or threatened breaches of this Section by the other party without the necessity of showing actual damages or showing that monetary damages would not afford an adequate remedy.
You agree that: (i) we will be deemed solely domiciled in the State of California; and (ii) our Service will be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms will be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) ( “FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 14.2 and preempts all state laws to the fullest extent permitted by law. If the FAA is determined not to apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in San Francisco, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco, California is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. This section 14.2 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of our Service, including receipt of any advertising, marketing, or other communications from us; (c) any transactions through, by, or using our Service; or (d) any other aspect of your relationship or transactions with us, directly or indirectly, as a user or consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms.
If you are a new user, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing us at support@prodeology.com with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at support@prodeology.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim through binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, the Arbitration Agreement shall control. The arbitration will be conducted in the U.S. county where you live or San Francisco, California, unless you and we agree otherwise. If you are using Prodeology for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using Prodeology for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and we agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, or any provision of these Terms, is unconscionable or illusory or any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
NOTHING IN THIS SECTION WILL BE DEEMED AS PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.
IF THIS ARBITRATION AGREEMENT IS FOUND TO BE VOID, UNENFORCEABLE, OR UNLAWFUL, IN WHOLE OR IN PART, THE VOID, UNENFORCEABLE, OR UNLAWFUL PROVISION, IN WHOLE OR IN PART, SHALL BE SEVERED. SEVERANCE OF THE VOID, UNENFORCEABLE, OR UNLAWFUL PROVISION, IN WHOLE OR IN PART, SHALL HAVE NO IMPACT ON THE REMAINING PROVISIONS OF THE ARBITRATION AGREEMENT, WHICH SHALL REMAIN IN FORCE, OR THE PARTIES’ ABILITY TO COMPEL ARBITRATION OF ANY REMAINING CLAIMS ON AN INDIVIDUAL BASIS PURSUANT TO THE ARBITRATION AGREEMENT. NOTWITHSTANDING THE FOREGOING, IF THE CLASS ACTION/JURY TRIAL WAIVER IS FOUND TO BE VOID, UNENFORCEABLE, OR UNLAWFUL, IN WHOLE OR IN PART, BECAUSE IT WOULD PREVENT YOU FROM SEEKING PUBLIC INJUNCTIVE RELIEF, THEN ANY DISPUTE REGARDING THE ENTITLEMENT TO SUCH RELIEF (AND ONLY THAT RELIEF) MUST BE SEVERED FROM ARBITRATION AND MAY BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION. ALL OTHER CLAIMS FOR RELIEF SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT SHALL BE ARBITRATED UNDER ITS TERMS, AND THE PARTIES AGREE THAT LITIGATION OF ANY DISPUTE REGARDING THE ENTITLEMENT TO PUBLIC INJUNCTIVE RELIEF SHALL BE STAYED PENDING THE OUTCOME OF ANY INDIVIDUAL CLAIMS IN ARBITRATION.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND WE AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND WE AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
This Section 15 applies if you are a “Governmental Entity”, defined as the United States or any nation, state, municipality, or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, or court, whether domestic, foreign, or multinational, exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government, and any employee or official thereof. For purposes of the United States government, Prodeology is “commercial computer software” as defined at 48 C.F.R. § 2.101 and 48 C.F.R. § 252.227-7014(a)(1) and as the term is used in 48 C.F.R. §§ 12.212 and 227.7202, and the Service is a “commercial service” as defined in 48 C.F.R. § 2.101. The Service and related documentation is provided to all Governmental Entity customers and their users, for use by the Governmental Entity customer or on its behalf, subject to these Terms and with only those rights as are granted to all other customers and authorized users pursuant to the terms and conditions herein.
These Terms, including (by way of example only) Sections 4.3 (Renewals), 4.4 (Cancellations), 4.5 (Late Payments), 10 (Indemnity), 14 (Governing Law, Arbitration, and Class Action/Jury Trial Waiver), 19.1 (Assignment) apply to Governmental Entities and their authorized users except as prohibited by applicable law. If and to the extent any provision or term herein is so prohibited, such provision will be deemed modified only to the extent reasonably necessary to conform to applicable law but to give maximum effect to the provision or terms as written.
You understand and acknowledge that Prodeology may be subject to export control laws and regulations. You agree to comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither you, nor any person to which you make Prodeology available or that is acting on your behalf, or, if you are an Organization, any of your subsidiaries, or any of your or their directors, officers or employees, or any person owning 50% or more of your equity securities or other equivalent voting interests, is (i) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (ii) located within or a resident of, or a segment of the government of, any country or territory for which the United States maintains trade and economic sanctions or embargoes.
We may identify you as an Prodeology customer in our promotional materials. We will promptly stop doing so upon your request, which you may send using the “Message Support” link under the “Help” menu within Prodeology.
Prodeology provides various interactive services, including chatbot and managed chat functionality. You agree that we may monitor and retain a transcript of all communications with you via these interactive tools in order to provide the tools and for quality and verification purposes. Your use of any of these tools is governed by these Terms and Prodeology’s Privacy Policy.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior express written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
We may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as we determine in our sole discretion. We reserve the right to determine the form and means of providing notifications to our users, provided that you may opt out of certain notifications as required under applicable laws or as described in these Terms or our Privacy Policy. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. These Terms apply to and govern your access to and use of our Service effective as of the start of your access to or use of our Service, even if such access or use began before publication of these Terms. We may, in our sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. In such cases, we will update the ‘last modified’ date at the top of this page. When we change these Terms in a material manner, we will notify you that material changes have been made to these Terms, for example by posting the modified Terms on our website, by displaying a prominent notice within the Service, or through other communications. Your continued use of Prodeology after any change to these Terms constitutes your acceptance of the new Terms of Service. If you do not agree to any part of these Terms or any future Terms of Service, do not use or access (or continue to access) Prodeology.
These Terms, together with any amendments and any additional agreements you may enter into with us in connection with Prodeology, will constitute the entire agreement between you and us concerning Prodeology. None of our employees or representatives are authorized to make any modification or addition to these Terms. Any statements or comments made between you and any of our employees or representatives are expressly excluded from these Terms and will not apply to you or us or your use of Prodeology. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement will be unenforceable.
No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.
The provider of Prodeology is Paper Boat Ltd. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
If you have any questions about these Terms, please contact us at support@prodeology.com.
