Terms of Service
This Terms of Service Agreement (“Agreement”) is made and entered into by and between PROFESTO SOFTWARE INC., a Delaware corporation, (either the “Company” or “Profesto”) and you (either a “Client” or “You”) as of the date set forth on the time stamp collected when accepting this Agreement online (the “Effective Date”).
Profesto directly, and through its website, https://profesto.net/ (the “Website”), offers customers the platform for employee records management (either a “Platform” or the “Service”).
This Agreement governs your rights and responsibilities relating to access and use of the services made available by the company.
PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
By signing up for the Service on behalf of a client, you confirm that you are duly authorized to represent the legal entity under which the client operates, and you accept the terms of this Agreement on behalf of a such legal entity, and any references to “you” in this Agreement refer to such legal entity, its affiliates and all the employees, consultants, and agents of those respective parties. You are responsible for all activity on the Service that occurs under your account.
This Agreement is an electronic contract that sets out the legally binding terms of your use of the Service. This Agreement may be modified by Profesto from time to time, such modifications to be effective upon posting by Profesto on the Website. By accessing and/or using the Platform, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.
1. Terms of Service
1.1 Profesto’s provision of any Service is subject to the terms of this Agreement. The Company will make the Services available to the Client promptly following the Effective Date in accordance with the terms of this Agreement. This agreement does not restrict the Company from providing or performing the same or similar services for any third party. The Company reserves the right in its sole discretion to (i) amend, modify, or withdraw any portion of the Services at any time for any reason it deems sufficient, or (ii) cease providing all or any portion of the Services.
2. Term and Termination
2.1 This Agreement will remain in effect (a) for as long as you have an active subscription for the Service or (b) if you elect to use the Service for a free trial period, and do not purchase a subscription before the end of such period, until the end of the free trial period (the “Term”).
2.2 Subscriptions you purchase commence on the start date specified when you complete the initial payment process and continue for the subscription term selected at the time of payment. If you add an additional subscription for a new service or module at a later date, the new service will commence on the start date specified at the time you added the new service and continue for the subscription term selected at that time. If you would like a separate instance of the Service for an affiliate, that affiliate must purchase its own subscription to the Service and separately accept these Terms of Service.
2.3 You are solely responsible for the proper cancellation of your subscription. You may cancel your subscription at any time by sending the cancellation request to Profesto at firstname.lastname@example.org.
2.4 The term of the Agreement depends on the payments made by the Client. It renews on a yearly or monthly basis, depending on the subscription selected by the Client.
2.5 The Company may terminate this Agreement in case of violation of payment obligations by the Client.
3. Modification of Service Agreement
3.1 Profesto may modify or update this Agreement at any time. In the event Profesto determines it is necessary to make a material modification to this Agreement, you will be notified of such change and asked to agree to such modified version of the Agreement affirmatively. Note, however, that your use of the Service after modifications to the Agreement become effective constitutes your binding acceptance of such changes. You may review the most current version of this Agreement at: https://profesto.net/terms-of-service
3.2 If you are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service, you agree that your sole and exclusive remedy is to terminate your subscription and discontinue use of the Service.
4. Payment Terms and Fees
4.1 Client agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://profesto.net/pricing, and the Client authorizes Profesto to debit the Client’s designated debit/credit card for all fees as they become payable. You will provide the Company with debit/credit card information. If You provide debit/credit card information to the Company, You authorize the Company to charge such card with any and all fees for the Service as listed in an Agreement for the initial subscription term and for any renewal subscription terms that apply.
4.2 Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar months in which the Client is enrolled in the Service, and such fees are applied in full for a given calendar month. Notwithstanding the foregoing, Profesto may invoice Client for any applicable outstanding fees, and Client shall pay such invoice within seven (7) days of receipt thereof. All fees are non-refundable, including upon cancellation of this Agreement, as stated in section 2.3.
4.3 Profesto reserves the right to change the fees for its Service from time to time. The Client will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to the Client, the Client may cancel the Service as provided herein prior to the time when such fee increase or change to this Agreement takes effect. Your continued use of the Service beyond the cancellation window constitutes your agreement to those changes. If Profesto is unable to collect fees due because of insufficient funds on your debit/credit card or for any other reason, you must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, plus other costs of collection as permitted by law.
4.4 The fees for Services do not include any taxes, levies, duties, or other governmental assessments of any kind, including, for example, sales, use, value-added, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder.
5. Intellectual Property Rights
5.1 As between the parties, Profesto owns and shall retain all rights and interest in and to (a) the Software, Service, and content, including all intellectual property rights therein, and (b) all operational and performance data related to your use of the Service, including, without limitation, which features are used, time spent using the Service and similar data created in connection with the Service, together with analysis of such operational and performance data and derived findings, correlations, discoveries, and other insights or learnings derived by Profesto from such analysis.
5.2 Subject to Client’s compliance with this Agreement, Profesto grants Client a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Profesto’s Content solely in connection with Client’s permitted use of the Platform for Client’s own behalf.
5.3 You retain all right, titles, and ownership interests in and to your Data. Profesto has no right, title, or interest in any personally identifiable information contained in or related to your Data.
6. Warranties, Limitations, and Disclaimers
6.1 Profesto represents and warrants as follows: (a) the Service will perform substantially in accordance with the specifications generally provided by Company in connection with the Service documentation; (b) the provision of the Service will comply with all privacy and data protection laws applicable to our business; (c) we will not sell personal information provided by you, and we will retain, disclose, or use personal information provided by you only for purposes of providing the Service; and (d) any professional services performed for you by the Company will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
6.2 Profesto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur. During such maintenance periods, the Platform may be inaccessible and unavailable, with or without notice to the Client.
6.3 Client’s use of the Service and content is entirely at the Client’s own risk. Profesto is not providing legal, tax, regulatory, financial, employment, or other professional services or advice. Any information provided by Profesto via the Platform is meant for informational purposes only and should not be interpreted as professional advice.
6.4 Except for a party’s violation of the other party’s intellectual property rights, gross negligence, or willful misconduct, in no event will either party be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this agreement.
6.5 In no event shall the Company’s liability for any and all claims arising out of or related to this Agreement, whether in contract, warranty, tort, or under any other theory of liability, exceed in the aggregate the amount paid to the company by the entity making such claims, for client’s use of the services in the 12 months preceding the first incident giving rise to such claims.
6.6 Profesto is not responsible or liable for (i) Client’s Content or anyone’s reliance on Client’s Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from Client’s delay in providing, or Client’s failure to provide, Company with information necessary for its provision of Services; (iv) unauthorized third-party actions taken in Client’s Account and any transactions, consequences, or Claims arising therefrom; (v) Client’s negligence or any negligence of Client’s Account Administrator or Authorized Representative; (vi) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by Client through reasonable efforts; (vii) Client’s failure, or the failure of its authorized representatives, to properly follow Company’s instructions with respect to the Services.
6.7 You hereby warrant that:
6.7.1 Your Content, and each and every part thereof, is an original work by you, or you have obtained all rights, licenses, consents, and permissions necessary in order to use and (if and where relevant) to authorize Profesto to use, Your Content according to these Terms of Service, including, without limitation, the right to upload, reproduce, store, transmit, distribute, share, publicly display, publicly perform, make available and otherwise communicate to the public Your Content, and each and every part thereof, on, through or via the Websites, any and all Services and any third party services.
6.7.2 Your Content and the availability thereof on the Platform does not and will not infringe or violate the rights of any third party, including, without limitation, any intellectual property rights, performers’ rights, rights of privacy or publicity, or rights in confidential information.
6.7.3 You have obtained any and all necessary consents, permissions, and/or releases from any and all persons appearing in Your Content in order to include their name, voice, performance, or likeness in Your Content and to publish the same on the Websites and via any third-party services.
6.7.4 Your Content, including any comments that you may post on the Websites, is not and will not be unlawful, offensive, abusive, defamatory, obscene, racist, sexually explicit, ethnically, or culturally offensive, indecent, will not promote violence, terrorism, or illegal acts, or incite hatred on the grounds of race, gender, religion or sexual orientation.
6.7.5 Your Content does not and will not create any liability on the part of Profesto, its subsidiaries, affiliates, successors, assigns, and their respective employees, agents, directors, officers, and/or shareholders.
6.8 Profesto reserves the right to remove Your Content, suspend or terminate your access to the Platform and/or pursue all legal remedies if we believe that any of Your Content breaches any of the foregoing representations or warranties or otherwise infringes another person’s rights or violates any law, rule, or regulation.
7.1 You agree to indemnify and hold Profesto, its subsidiaries, affiliates, officers, agents, and other partners and employees harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, arising out of or related to:
7.1.1 Your use of the Service and/or Websites in violation of this Agreement and/or arising from a breach of this Agreement, including without limitation your representations and warranties set forth above.
7.1.2 Any third-party claim of infringement of copyright or other intellectual property rights or invasion of privacy arising from the hosting of Your Content on the Websites, and/or your making available thereof to other users of the Websites, and/or the actual use of Your Content by other users of the Websites or related services in accordance with these Terms of Service and the parameters set by you with respect to the distribution and sharing of Your Content.
7.1.3 Any activity related to your account, either by you or by any other person accessing your account with or without your consent, unless such activity was caused by the act of Profesto.
8.1 Any dispute between the parties arising from this Agreement, the Parties shall attempt to resolve such dispute with negotiations first.
8.2 This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware, without reference to conflict of laws principles.
8.3 Any legal action or proceeding with respect to this Agreement must be brought in the courts of the State of Delaware and/or the United States District Court for the District of Delaware.
9.1 This Agreement, including all applicable Service Terms, constitutes the agreement between Profesto and Client regarding the Service and content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The Client may not assign this Agreement, by operation of law or otherwise, without Profesto’s prior written consent. Any attempt by the Client to assign or transfer this Agreement without such consent will be null. Profesto may freely assign or transfer this Agreement without restriction.
9.2 Any notices or other communications provided by Profesto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Profesto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such 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 the Company. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
10. Contact Information
10.1 If the Client has any questions about this Agreement or the Service, the Client may contact Profesto via phone at (872) 266-2221, via email at email@example.com, or send us mail at 7234 W North Ave Ste 208, Chicago, IL 60707