PROFECTA TERMS OF SERVICE
Welcome to Profecta, the collaborative Product Management platform. We keep your product requirements, tasks, and reports all in one place.
Profecta (www.profecta.io) is owned and operated by IdeaLyst, Inc., (“Profecta”). In these Terms, “we”, “us”, or “our” refer to Profecta, and “you” and “your” refer to the individual or entity that uses the Services. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its Users, its Administrators, and its affiliates to these Terms. If you are accessing the Services in your capacity as a United States government entity, you are responsible to complying with special US Government Terms which are applicable to you.
1. Acceptance of Terms
Profecta provides a website and/or mobile application technology platform, software, processes and services which allow users to collaborate, communicate, organize, archive, and share so that they can more efficiently and effectively execute tasks, projects, documents, programs, and most any other endeavor (collectively the “Services”). By using the Services, you agree to comply with and be legally bound by these Terms of Service (“Terms”), whether or not you become a registered user of the Services. These Terms govern your access to and use of the Services and constitute a binding legal agreement between you and Profecta.
IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE THAT SECTION 24 OF THESE TERMS OF SERVICE CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH US ARE RESOLVED. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW.
“Profecta Content” means all Content that Profecta makes available through the Services, including any Content licensed from a third party, but excluding User Content.
“Content” means text, graphics, images, music, software, audio, video, reports, scripts, information or other materials.
“User” means a person who completes Profecta’s account registration process and includes, without limitation, Owners and Administrators, each as defined below.
“User Content” means all Content that any User shares, displays, posts, uploads, publishes, submits or transmits through the Services.
Profecta reserves the right, in its sole discretion, to modify or discontinue, temporarily or permanently, any aspect of the Services at any time and without prior notice. Profecta may also modify these Terms at any time, but if we do so we will post the modification on the website or via the mobile application. Modifications to these Terms will automatically take effect upon posting; provided, however, that material changes to the Terms will be effective as to an existing registered User thirty (30) days after posting. By continuing to access or use the Services after we have posted a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to stop accessing or using the Services.
4. Eligibility: Digital Signature
The Services are intended solely for persons who are 18 or older, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service.
By registering for a User Account, or by clicking to accept these Terms, you are deemed to have executed these Terms electronically, effective on the date you register your Account, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your creating of a User Account constitutes an acknowledgement that you are able to electronically receive, download, and print these Terms, and any amendments.
5. User Account Registration
To access and use the Services, you must register an account (“User Account”) and become a User. We offer two ways to create a User Account - direct registration using an email address, or registration via a third party services. You may cancel your User Account at any time.
Direct Registration: To create a User Account by using your email address, follow the prompts on the website or mobile application.
Registration via Third Party Service: You may also create a User Account via certain third party service or social networking site (“TPS”) (including, but not limited to, Slack, Facebook) (each such account, a “TPS Account”) by following the prompts on the Site. You represent that you are entitled to disclose your TPS Account login information to us and to grant us access to your TPS Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable TPS Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such TPS providers.
However you create a User Account, you agree to provide accurate, current and complete information and to update such information to keep it accurate, current and complete. You agree to safeguard your password and that you are solely responsible for any activities or actions under your User Account, including all User Content, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your User Account.
You represent and warrant that any User Content or User Account information that you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) comply with all applicable laws, tax requirements, licenses, rules and regulations that may apply to you and (b) not conflict with the rights of third parties. Profecta assumes no responsibility for User Content, User Account information, or for any User’s compliance with any applicable laws, rules and regulations (including tax requirements).
6. Managed Accounts
The Services may include an option for you to register yourself as the owner of an account for many Users (a “Managed Account”). A Managed Account owner (“Owner”) may assign another User to manage and run a team or channel under a Managed Account (“Administrator”). An Owner may invite other individuals with a User Account to become Managed Account Administrators or Managed Account Users (each with their own password). The total number of Managed Account Administrators or Users is limited to the maximum number permitted for your account. Owners are responsible for maintaining the confidentiality of login, password, and account and for all activities that occur under the Managed Account, including the activities of Administrators or Users.
7. Services Fees
If you use Services that are made available for a fee, you will be required to select a payment plan (“Plan”) and provide your credit card or other payment instrument information. If you have not previously created any User Account, you will not be charged any fee for your first 30 days and may cancel your User Account within that time without incurring any charges. If you do not cancel your User Account within that time, you agree to pay Profecta in accordance with the Plan terms set forth on the Services website and these Terms, and you authorize Profecta or its third-party payment processors to bill your payment instrument in advance on a periodic basis in accordance with such terms. If you cancel your User Account, it will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
You may also be offered the opportunity to purchase additional features (like more storage) or access additional tools for a separate fee. Any fees for the additional features or tools will be disclosed on the Profecta website or application, and will be payable via your credit card or other payment instrument on file with us at the time of the purchase.
If you dispute any charges you must let us know within sixty (60) days after the date that any charge is assessed. All amounts paid are non-refundable and we reserve the right to change our prices in the future. If we increase our prices for your Service plan, we will provide you notice of the change on our website and by email at least 30 days before the change takes effect. Your continued use of the Services after the price change goes into effect constitutes your agreement to pay the changed amount. We may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
You understand and agree that you are solely responsible for determining, withholding, or remitting any Tax applicable to your use of the Services in consultation with your tax advisors. Profecta cannot and does not offer Tax-related advice. “Tax” means any sales taxes, value added taxes (VAT), goods and services taxes (GST), other local, municipal, provincial, state and federal taxes, charges or fees of any kind, and other withholding and personal or corporate income taxes.
9. User Affirmations, Conduct and Use
By submitting the User registration form, you represent, warrant and agree to the following:
- You are at least 18 years of age, are authorized to submit a User registration, and have full power and authorization to enter into these Terms.
- You are solely and fully liable for all User Content, conduct, postings and transmissions that are made under your user name and password.
- You either are the sole and exclusive owner of all User Content that you make available through the Services or you have all permissions, rights, licenses, consents and releases that are necessary to grant to Profecta the rights in such User Content, as contemplated under these Terms.
- You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Services and Content.
- Neither your User Content, nor your posting, uploading, publication, submission or transmittal of the User Content or Profecta’s use of the User Content (or any portion thereof) on, through or by means of the Services, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- You accept and agree that we have no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Content and other communications maintained by the Services. You acknowledge that we may establish general practices and limits concerning use of the Services and may modify such practices and limits from time to time. We retain the right to create limits on use and storage at our sole discretion at any time with or without notice, and reserve the right to log off users who are inactive for an extended period of time.You further represent, warrant and agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations.
- impersonate any person or entity, including, but not limited to, a Profecta employee, Administrator, Owner, or other User, or falsely state or otherwise misrepresent your affiliation with a person or entity.
- use the Services to “stalk” or otherwise harass another.
- sublicense, resell, rent, lease, transfer or assign the Services or its use, or offer the Services on a time share basis to any third party.
- use manual or automated software, devices, scripts robots, other means or processes to access, “scrape”, “crawl” or “spider” any web pages or other services contained in the Services or Content.
- copy, store or otherwise access any information contained on the Services or Content for purposes not expressly permitted by these Terms.
- interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use the Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers.
- use the Services in connection with the distribution of unsolicited commercial email ("spam") or advertisements.
- use automated scripts to collect information or otherwise interact with the Services.
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
- systematically retrieve data or other content from our Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.
- use, display, mirror or frame the Services, Profecta’s name, any Profecta trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Profecta’s express written consent.
- access, tamper with, or use non-public areas of the website or application, Profecta’s computer systems, or the technical delivery systems of the Services or any third-party provider system.
- attempt to probe, scan, or test the vulnerability of any Profecta system or network or breach any security or authentication measures.
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Profecta or any of Profecta’s providers or any other third party (including another user) to protect the Services or Content.
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information.
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content.
- use the Service in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems.
- advocate, encourage, or assist any third party in doing any of the foregoing.
Profecta will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Profecta may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms. You acknowledge that Profecta has no obligation to monitor your access to or use of the Services or User Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Profecta reserves the right, at any time and without prior notice, to remove or disable access to any User Account or User Content that Profecta, at its sole discretion, considers to be in violation of these Terms, objectionable for any reason, or otherwise harmful to the Services.
The Services, Profecta Content, and other Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Services and Profecta Content, including all associated intellectual property rights, are the exclusive property of Profecta and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
All trademarks, service marks, logos, trade names and any other proprietary designations of Profecta used herein are trademarks or registered trademarks of Profecta. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
11. License to Services, Content, and User Content
Subject to your compliance with these Terms, Profecta grants you a limited, non-exclusive, non-sublicenseable, revocable, non-transferable license to access any Services and view any Content to which you are permitted access and in accordance with these Terms.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Profecta or its licensors, except for the licenses and rights expressly granted in these Terms.
12. License Grant to User Content
We may, in our sole discretion, permit Users to share, display, post, upload, publish, submit or transmit their User Content or that of other Users. By making available any User Content on or through the Services, you hereby grant to Profecta a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to create derivative works, sublicense, use, edit, view, copy, adapt, modify, distribute, license, sell, host, market, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, store and otherwise fully exploit such User Content on, through, or by means of the Services as currently exist or may be developed in the future. Profecta does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
Profecta reserves the right to use your name as a reference for marketing or promotional purposes on the website and in other communication with existing or potential customers. Please send an email to email@example.com if you would prefer not to be used as a reference.
The Services may contain links to third-party websites or resources. You acknowledge and agree that Profecta is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the Content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Profecta of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Profecta may include advertisements on its own behalf or paid advertisements on behalf of interested companies and/or individuals on the Services. By clicking on the advertisements, the User may be shifted to a Web site of the advertiser or receive other messages, information, or offers from the advertiser. Users acknowledge and agree that Profecta is not liable for the privacy practices of advertisers or the content of their Web sites, information, messages or offers. Users are wholly liable for all communications with advertisers and for all transactions subsequently executed.
15. Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website location are covered by a single notification, a representative list of such works at that website;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Profecta's designated Copyright Agent to receive notifications of claimed infringement is Profecta c/o IdeaLyst, Inc., email: firstname.lastname@example.org, mailing address: 42808 Christy Street, Suite 225, Fremont, CA 94538. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.
Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the User Submission that has been removed or to which access has been disabled and the location at which the User Submission appeared before it was removed or disabled;
- A statement that you have a good faith belief that the User Submission was removed or disabled as a result of mistake or a misidentification of the User Submission; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Santa Clara, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Profecta may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Profecta's sole discretion.
16. Termination and User Account Deactivation
These Terms will continue in full effect unless and until your User Account or these Terms are terminated as described herein. Services plans that are paid monthly will automatically renew for additional months, and Services plans that are paid annually will automatically renew for additional years. You have the right to deactivate your account at any time by using the account deactivation interface provided at yourtenantname.profecta.io/settings where yourtenantname is the subdomain defined by you or your Tenant Admin during Sign Up. Only Owners have the ability to deactivate and delete Managed Accounts. All accrued rights to payment and rights granted to Profecta, as well as the terms below, shall survive termination of these Terms.
We may, in our discretion and without liability to you, with or without cause, with or without prior notice, and at any time: (a) terminate these Terms or your access to our Services, and (b) deactivate or cancel your User Account. Upon termination we will promptly pay you any amounts we reasonably determine we owe you in our discretion. In the event Profecta terminates these Terms, or your access to our Services or deactivates or cancels your User Account you will remain liable for all amounts due hereunder. You may cancel your User Account at any time by contacting Profecta. Please note that if your User Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Services.
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. THE SERVICES AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PROFECTA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PROFECTA MAKES NO WARRANTY THAT THE WEBSITE, APPLICATION, SERVICES, OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. YOU ACKNOWLEDGE AND AGREE THAT PROFECTA DOES NOT REVIEW, ENDORSE, VERIFY, EVALUATE, WARRANT OR GUARANTEE ANY CONTENT.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR USER CONTENT, COMMUNICATIONSAND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE TO INDEMNIFY AND HOLD PROFECTA HARMLESS IN CONNECTION WITH ANY CLAIM AND ANY DAMAGES OR EXPENSES ARISING FROM YOUR USE OF THE SERVICES.
18. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND CONTENT VIA THE SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS WHETHER IN PERSON, BY PHONE, ONLINE OR OTHER MEANS, REMAINS WITH YOU. NEITHER PROFECTA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERYING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUR OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, FROM ANY COMMUNICATIONS OR INTERACTIONS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PROFECTA HAS BEEN INFORMED OF THE POSSBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL PROFECTA’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT AND IN CONNECTION WITH ANY INTERACTIONS WITH ANY OTHER USERS, EXCEED THE AMOUNTS YOU HAVE PAID IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100) IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PROFECTA AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Profecta and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Services or Content or your violation of these Terms; (b) your User Content; (c) your (i) interaction with any User, (ii) reliance on any information exchanged via the Services, or (iii) creation of a User Account; (d) your violation of any third party right, including without limitation any copyright, property, or privacy right; (e) any claim that you or your User Content caused damage to a third party; (f) your use of the Service in or in any way related to a hazardous environment requiring fail-safe controls (including, without limitation, operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems). Profecta shall have the right to control all defense and settlement activities.
You may not assign or transfer these Terms, by operation of law or otherwise, without Profecta’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Profecta may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Unless otherwise specified herein, any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Profecta (i) via email to the email address on your account or (ii) by posting to the website or via the application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. You may provide notice to us by email at email@example.com.
22. Controlling Law and Jurisdiction
You agree that (i) the Services shall be deemed solely based in California, and (ii) the Services shall be deemed a passive website that does not give rise to personal jurisdiction over Profecta, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. You and we agree to submit to the personal jurisdiction of a state court located in San Francisco, California for any actions for which the parties 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 party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution Provision below.
YOU AND PROFECTA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED.
These Terms are intended to govern the agreement between Profecta and you to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
24. Dispute Resolution Provision
You and Profecta agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services (collectively “Disputes”) will be resolved according to the provision of this section.
Informal Resolution. We will first try to resolve any Dispute informally. Accordingly, neither of us may start a formal proceeding (except for Disputes described in Section 10.4 below) for at least 30 days after one of us notifies the other of a Dispute in writing. Notice of the Dispute will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You will send your notice by email to firstname.lastname@example.org AND to the address listed directly below. For Administrators, we will send our notice to the email AND U.S. mailing address associated with your account.
Formal Resolution. If the Dispute is not resolved informally, we agree that it will be resolved by binding arbitration and not in courts of general jurisdiction; except that each party retains 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 party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
You acknowledge and agree that you and Profecta are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Profecta otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org and a separate form for California residents at www.adr.org.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Profecta otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Profecta submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $10,000, Profecta will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
No Class Action. YOU AND PROFECTA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Changes. Notwithstanding the provisions of the “Modification” section above, if Profecta amends this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms) you will be notified in accordance with these Terms. You may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Profecta’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Profecta in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Enforceability. If the “No Class Action” section of this Dispute Resolution Provision is found to be unenforceable, or if the entire Dispute Resolution Provision is found to be unenforceable, then the entirety of the entirety of the Dispute Resolution Provision will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described above will govern any action arising out of or related to these Terms.
Right to Opt Out of Arbitration and Class Action/Jury Trial Waiver: You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying us in writing within 30 days of the date you first registered for the Services. To opt out, you must send a written notification to Profecta c/o IdeaLyst, Inc., Attn: Legal, 42808 Christy Street, Suite 225, Fremont, CA 94538 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. Alternatively or in addition, you may send this written notification to firstname.lastname@example.org.
25. International Users
Profecta makes no claim that the Services or Content are appropriate or may be downloaded outside the United States. If you access the Services from a location outside the United States, you do so at your own risk and are responsible for compliance with all applicable laws, rules, regulations or decrees of your jurisdiction.
26. Export Control and Restricted Countries
You may not use, export, re-export, import, or transfer the application except as authorized by United States law, the laws of the jurisdiction in which you obtained the application, and any other applicable laws. In particular, but without limitation, the application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.
27. Feedback and Reporting Misconduct
We welcome and encourage you to provide feedback, comments and suggestions (collectively “Feedback”) for improvements to the Site, Application and Services. You may submit feedback by emailing us at email@example.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of Profecta and you hereby irrevocably assign to Profecta all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Profecta’s request and expense, you will execute documents and take such further acts as Profecta may reasonably request to assist Profecta to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
If you feel any User is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of fraud, or (iii) engages in any other disturbing conduct, you agree to immediately report such person to the appropriate authorities and to Profecta.
The failure of Profecta to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Profecta. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Content.
29. Notice to California Residents.
If you are a California resident, under California Civil Code § 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
30. Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Profecta and you regarding the Services, Content and any Chats or Profiles made via the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Profecta and you regarding the same.