These Terms of Service (“Terms”) are entered into by and between Profasee Inc. (“Profasee” “We”, “Us” or “Our”) and you (“Customer”, “You”, “Your” or “Yourself”). To enable You subscribe for the Profasee service(s) (the “Service(s)”), You must read and agree to be bound by these Terms, which include by reference all applicable Profasee policies and terms, including but not limited to the Privacy Policy, Cookie Policy, an applicable Customer Agreement and any Addendum thereto (collectively, the “Agreement”). The Agreement constitutes an agreement between You and Profasee governing Your use of the Services. In the event of any conflict between these Terms, the Customer Agreement, the Privacy Policy and the Cookie Policy, the provisions of the Customer Agreement shall prevail, followed by these Terms, then the Privacy Policy, and then followed by the Cookie Policy.

By accessing any Profasee digital platform (“Profasee Platform”) and using the Services as a Customer or as a Beta Tester, or as part of a subscription account package, You agree to all the terms of the Agreement. You are advised to check the Privacy Policy, Cookie Policy and these Terms from time to time for any updates or changes that may impact You. You hereby acknowledge and agree that Profasee may amend these Terms, the Privacy Policy and Cookie Policy at any time by posting the relevant amended and restated Terms on Your Account page and such amendments to the Terms shall be effective as of the date of posting. Your continued use of the Services and/or any Profasee Platform, following changes to the Privacy Policy, Cookie Policy and these Terms, constitutes Your unconditional agreement to any such changes. If You do not agree to any changes to the Terms, You may discontinue usage of the Service, and any licenses and/or authorization(s) to use the Services shall terminate.

Violation of any of these Terms may result in the suspension or termination of Your Account or License to use the Services at the sole discretion of Profasee.

1 General Definitions

1. 1.1 “Account” means Your account with Profasee utilized to access the Services.

2. 1.2 “Additional Fees” means the monies due from Customer to Profasee for (i) Customer’s use the Profasee Platform or Services outside of the scope of the Agreement, (ii) any additional work requested by Customer beyond the scope set forth in the Agreement, (iii) any additional work which is the subject of a written addendum signed by both Profasee and Customer, (iii) API fees, and (iv) fees for customized Integration.

3. 1.3 “Additional Services” means any services, which are subject to Additional Fees.

4. 1.4 “API” means an application programming interface that may be made available to You by Profasee to facilitate the incorporation of certain aspects of the Services into Your existing software and systems.

5. 1.5 “Beta Tester” means a party using the Services in a manner authorized by Profasee, where some or all of the particular services accessed by that party are not the final versions and are yet to be fully released for mainstream use by all other Customers of Profasee.

6. 1.6 “Beta Test Agreement” means the agreement utilized by Profasee to onboard Beta Testers, as may be amended from time to time.

7. 1.7 “Confidential information” means any information directly or indirectly disclosed by a party, or its parents, subsidiaries, affiliates, partners, subcontractors, or other related entities, to the other party or its parents, subsidiaries, affiliates, partners, subcontractors, or other related entities, in writing, orally or by inspection of tangible objects, which is designated as “Confidential”, “Private”, “Proprietary” or a similar designation or which a party would reasonably consider to be confidential. The Services, pricing, and market strategies, are Profasee’s Confidential Information without need to mark or designate the information as confidential or proprietary. 

8. 1.8 “Customer Agreement” means the document designated as the Customer Agreement, as may be amended from time to time, that specifically references and incorporates these Terms.

9. 1.9 “Customer Materials” means any and all information, data, materials, works, expressions, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer for processing by or through the Services, or (b) collected, downloaded, or otherwise received by Profasee for Customer pursuant to this Agreement or at the written request or instruction of Customer, including, without limitation, all personally identifiable information of Customer’s clients.

10. 1.10 “Documentation” with respect to Profasee means all materials, including Profasee-authored help content, product descriptions, training materials, drawings, diagrams, specifications, manuals and instructions that Profasee provides (either in digital or hard copy form) to assist and define Customer’s use of the Services, whereas Documentation with respect to the Customer may include, but is not limited to, a business license, government issued photo ID, the credit card on file, etc.

11. 1.11 “Subscription Fees” means the monies due from Customer to Profasee as consideration for the Services and Licenses in the Agreement in connection with the Services and also includes Additional Fees.

12. 1.12 “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trademarks (including Marks), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information as described herein, and all other intellectual property and all pending applications for any of the foregoing and including all renewals, extensions, revivals and all accrued rights of action.

13. 1.13 “Insolvency Event” means, in relation to either party, any of the following events: (a) the company commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws; (b) anyone commences an involuntary case against the company under title 11 of the United States Code or the corresponding provisions of any successor laws and either (i) the case is not dismissed by midnight at the end of the 60th day after commencement or (ii) the court before which the case is pending issues an order for relief or similar order approving the case; (c) a court of competent jurisdiction appoints, or the company makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code or the corresponding provisions of any successor laws) for the company or all or substantially all of its assets; or (d) the company fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.

14. 1.14 “Integration” means the Additional Service offered by Profasee, subject to Additional Fees, enabling a connection between the Profasee Platform and Services and a variety of certain third-party applications and services. 

15. 1.15 “License” means the licenses expressly granted herein by Profasee to Customer to use the Service.

16. 1.16 “Marks” means any word, symbol or device, or any combination thereof, used or intended to be used by a party to identify and distinguish the party’s or its third-party licensor’s products or services from the products or services of others, including without limitation trade names, trademarks, service marks and logos. “Customer Marks” refer to any Marks of Customer and includes third party marks Customer may provide to Profasee or that are incorporated in Product Information. “Profasee Marks” refers to Marks of Profasee and includes third-party marks Profasee may provide to Customer.

17. 1.17 “Plan” or “Subscription Plan” means a subscription option, whether billable monthly or annually, chosen by the Customer to access the Services.

18. 1.18 “Product Information” means all information and materials specifically related to Customer products that Customer provides or uploads to Profasee’s Website or otherwise stores in the Profasee Platform, or that Customer directs Profasee to collect on Customer’s behalf, including without limitation image files, text, templates, product descriptions, prices, Customer Marks, URLs and any other related information.

19. 1,19 “Representatives” collectively means the affiliates, directors, officers, shareholders, members, employees, subcontractors, permitted assignees and agents of a party.

20. 1.20 “Renewal Term” means the new Term following the expiry of a previous Term.

21. 1.21 “Security Obligation” means the Customer’s responsibility for maintaining the security of account login information (username and password).

22. 1.22 “Service” or “Services” means the services to be provided by Profasee, including without limitation Profasee’s ecommerce and advertising optimization products, applications and services, in each case in whatever format they may be offered now or in the future, any licensed software, code, or functionality, including but not limited to Customer’s access to the Profasee Platform. Services shall also include updates and upgrades subsequently provided to the Profasee Platform or the Technology. Services shall also include any Additional Services, which are subject to Additional Fees. 

23. 1.23 “Profasee” means Profasee Inc or any successor or assignee or subcontractor of Profasee.

24. 1.24 “Profasee Platform” means the cloud-based service provided by Profasee to its Customers.

25. 1.25 “Technology” means, collectively, the Profasee Platform and Services, Documentation, functionality, URLs and integrations that enable Customer access to the Profasee Platform, any Additional Services, analytics, transaction information, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports that are provided or used by Profasee in connection with the Services and any software or technology incorporated in or made available by Profasee through the Profasee Platform or Services, expressly excluding Customer Data, Product Information and Customer Marks unless otherwise stated in a writing signed by the parties.

26. 1.26 “User(s)” means the individuals for whom Customer has procured subscriptions to the Services, as identified to Profasee, and may include, but are not limited to, individuals employed by You or otherwise working for You at Your direction, and who are authorized by You to access and use the Service, including You.

27. 1.27 “Website” means Profasee’s website (including without limitation profasee.com, and any successor URLs, mobile or localized versions and related domains and subdomains). 

2 Services and Support

1. 2.1 Profasee offers computer services by acting as an application service provider in the field of information management to host computer application software for the purpose of e-commerce, namely, enabling online retailers to monitor, calculate, optimize and dynamically set competitive prices sold through online marketplaces and ecommerce platforms through the use of artificial intelligence and predictive analytics. Our Services makes it easy for customers of Profasee ("Customers") to manage and optimize their digital ad campaigns across multiple ad networks including but not limited to those managed by Amazon, Google and Facebook.

2. 2.2 Profasee provides software as a service (SAAS) web platform featuring software for ecommerce metrics, ecommerce product pricing, business intelligence, and digital and online advertising analytics enabling optimization of inventory and pricing decisions in respect of products and services offered for sale in online marketplaces and websites, also including repricing and sales optimization, inventory replenishment optimization and decision making on launches of new products and general marketplace analysis reports.

3. 2.3 The Customer recognizes that Profasee is designed to act as the exclusive digital marketing and technology solution in relation to Amazon.com and affiliated sites and that engaging any other third parties or software solutions to carry out services that are the same or similar to the Services provided by Profasee may prevent Profasee from providing the Customer the Service.

4. 2.4 Certain features that Profasee offers in the Profasee Platform depend on data provided by Amazon and other sources. It is possible that Profasee may need to change or reduce functionality as a consequence of changes to the data made available by Amazon. If such a change is required and such change significantly impedes the Customer's ability to use Profasee’s Platform, an extraordinary right to terminate its subscription will be provided.

3 Account Onboarding Terms

1. 3.1 Minimum Age. Subject to applicable law(s) in Your local jurisdiction, You must be eighteen (18) years of age or older or at least the age of majority in the jurisdiction where You reside or from which You use the Services.

2. 3.2 Registration. To access and use the Services, You must register for a Profasee account (“Account”) by providing Your full legal name, corporate entity name (required where You are accessing the Services on behalf or for the benefit of a corporate entity), current address, phone number, a valid email address, and any other information indicated as required by the registration interface (“Registration”) and then accepting these Terms. 

3. 3.3 Approval of Registration. Profasee shall exercise its sole discretion in accepting or rejecting Your application for an Account, or canceling an existing Account, for any reason. The person signing up for the Services will be the contracting party (“Registered Owner”) for the purpose of these Terms, and will be the person who is authorized to use any corresponding account we may provide to the Registered Owner in connection with the Services. If You are signing up for the Services on behalf of a corporate entity of which You are an employee or agent, that corporate entity must be listed in the Registration, and the corporate entity shall be the Registered Owner. If You are signing up for the Services on behalf of such a corporate entity, then You represent and warrant that You have the authority to bind that corporate entity to these Terms.

4. 3.4 Maintenance. Profasee may temporarily suspend the Profasee Platform, Technology, or any Services, for maintenance from time to time. Profasee will advise Customer (via Live Chat or other electronic means such as email) in advance of maintenance, unless, in Profasee’s sole discretion, it is impossible or impractical to do so.

5. 3.5 Customer Responsibility for Users. Customers are responsible for ensuring that their Users comply with the terms of this Agreement and Customer is liable for breaches of the Agreement by the User.

6. 3.6 Service Control. Except as otherwise expressly provided in this Agreement, Profasee has and will retain sole control over the operation, provision, maintenance, and management of the Technology, Service and the Profasee Platform.

7. 3.7 Transmission. Customer acknowledges that Customer’s information and Customer’s Data (personal or otherwise) may be transmitted to, from, and/or outside the United States as a result of Profasee providing the Services.

8. 3.8 Communication. You acknowledge that Profasee will use the email address You provide as the primary method for communication, including any required notices. You must maintain Your current address and contact information in the Account menu and promptly update this information if You change jurisdictions. If You move You must promptly update Your location in the Account menu.

9. 3.9 Account Ownership Dispute. In the event of a dispute regarding Ownership, we reserve the right to request Documentation to determine or confirm Ownership. Documentation may include, but is not limited to, a scanned copy of Your business license, government issued photo ID, the last four digits of the credit card on file, etc. Profasee retains the right to determine, in our sole judgment, rightful Ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Owner, Profasee reserves the right to terminate or temporarily disable an Account until resolution has been determined between the disputing parties.

10. 3.10 Changes to Service. In its reasonable discretion, Profasee may discontinue offering the Service, Profasee Platform or Technology, in whole or in part, or modify any design, layout, features, functionality, tools or content of the Service, Profasee Platform, and/or Technology, at any time, for any reason or no reason, with or without notice to You (although Profasee has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions). Profasee will provide You with thirty (30) days’ prior written notice of any discontinuation of the Service, Profasee Platform or Technology.  If any discontinuance or modification of a material part of the Services, Profasee Platform, and/or Technology materially reduces functionality and materially and adversely impacts Customer’s substantive use of the Profasee Platform, Technology, or Services, as determined by Profasee, in its sole discretion, Customer sole and exclusive remedy is to may terminate the Agreement by providing at least thirty (30) days prior written notice to Profasee, and Profasee shall refund any amounts paid in advance by Customer for Services not yet received at the effective date of such termination. Any new features provided by Profasee which augment or enhance the current Service, Technology, and/or Profasee Platform, including the release of new tools or resources, updates and upgrades by Profasee, may result in Additional Fees, which shall be mutually agreed upon by the parties in writing. Prices for using the Services are subject to change upon thirty (30) days’ notice from Profasee prior to renewal. Such notice may be provided within the Customer Account page and/or via email. Profasee will make reasonable efforts not to materially deprecate Services during the Term; however, Profasee shall not be liable to You or to any third party for any modification, price change, suspension or discontinuance of the Services.

11. 3.11 Privacy Consent. By signing up for the Services, You expressly authorize Profasee to collect and use the contact information that You provide upon Registration, and any other personal data that You choose to provide to Us, to make the Services and technical support available to You, and to contact You from time to time about upgrades to the Services and technical support matters. Further, Your acceptance of these terms constitutes Your express consent to receive marketing communications from Profasee. If You wish to opt out of receiving these marketing communications, You may do so by using the “Unsubscribe” function in emails You receive from Profasee, or otherwise notifying Profasee in writing, to the mailing address below. You may also lodge a privacy-related question or request at https://profasee.com/privacy-policy/.

12. 3.12 Security Obligation. You have a Security Obligation to keep Your password secure. You shall be liable for any loss or damage from Your failure to observe Your aforesaid Security Obligation. You shall report any security breaches promptly to Profasee.

13. 3.13 Data Usage. By accepting these Terms, You authorize Profasee to import data from Your Channels and to make automated changes to Your data on Your Channels, including listing data, pricing, quantity, ads, and other data in accordance with the Documentation for the Services to which You are subscribed.

4 Proprietary Rights.

1. 4.1 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.  

2. 4.2 Profasee shall own and retain all right, title and interest in and to: (a) the Services and Software, all improvements, enhancements or modifications thereto; (b) any software, applications, algorithms, inventions or other technology developed in connection with Implementation Services or support; and (c) all intellectual property rights related to any of the foregoing.   

3. 4.3 Customer acknowledges and agrees that the Services and the Services Data are proprietary to Profasee. All right, title and interest, including all intellectual property rights, in and of the Services and the Services Data, and any materials therein, including computer code, algorithms, know-how, trade secrets, design, graphics, structure, selection, coordination, expression, “look and feel” and arrangement of the Services, and all derivatives, enhancements, modifications, and improvements thereto, conceived, reduced to practice, and/or developed during the term of this Agreement by either party, are and shall be the sole and exclusive property of Profasee. All trademarks, trade names, service marks, and copyrights in and pertaining to the Services are owned by Profasee. This Agreement does not grant Customer any intellectual property rights in the Services. The Customer is entitled to access and use the Services only in accordance with the terms of this Agreement and the Services are not sold or licensed in any other way. ALL RIGHTS TO THE SERVICES AND ANYTHING ELSE NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY PROFASEE.

5 Grant of Right of Access and Use.

Provided that Customer complies with the terms and conditions of this Agreement, Profasee grants to Customer a non-exclusive, non-transferable limited right to access and use the Services, subject to the following restrictions:

(a) The right acquired by Customer under this Agreement is solely to access and use the Services for Customer’s own internal business purposes.

(b) Customer may not: (i) reproduce or copy the Services in whole or in part; (ii) sell, license, assign, or transfer the Services to any party, or otherwise permit any party to access or utilize the Services; (iii) translate, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from, the Services; (iv) modify the Services or merge all or any part of the Services with another program; (v) prepare derivative works based on the Services; (vi) disable, damage or attempt to penetrate or hack the Services in any manner, including, without limitation, pursuant to an “ethical hack”; (vii) publish, offer or distribute the Services or any data therefrom in any manner; (viii) expose or feed the data from the Services via integration or otherwise to any third party; (ix) remove any proprietary notices, labels, or marks on the Services; nor (x) use the Services for any purpose other than as contemplated under this Agreement.

6 Licenses / Restrictions / Intellectual Property Ownership

1. 6.1 Licenses. Profasee grants You a limited, non-exclusive, non-assignable, non-transferable license, without right to sublicense, to access and use the Services during the Term solely on behalf of Yourself or Your company, as applicable, and not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without the express written permission of Profasee. Profasee reserves all rights not explicitly granted to You. Profasee grants You the non-exclusive right to use the Documentation solely in conjunction with Your use of the Services. Profasee and any applicable third parties reserve all rights in their respective Documentation. You grant Profasee all necessary rights to use the Customer Materials to provide the Services. The parties acknowledge and agree that these Terms do not in any way limit either party’s right at any time to independently develop, market, license, or otherwise distribute, any product in any manner that it chooses, provided that the party does so in accordance with these Terms. All rights not expressly granted to You in the Agreement are reserved and retained by Profasee.

2. 6.2 License Limitations, Restrictions and Responsibilities.

1. 6.2.1 Prohibited Actions. Customer shall not:

1. 6.2.1.1 except as expressly permitted by the Agreement, copy, reproduce, distribute, publish, display post or transmit, the Service, the Profasee Platform, or the Technology, in whole or in part; 

2. 6.2.1.2 license, sub-license, sell, resell, rent, lease, transfer, assign, distribute or otherwise exploit the terms of this License or make the Service available for access or use by any person(s) other than the Users; 

3. 6.2.1.3 use the Service to process any data unlawfully, in violation of the Agreement, or for any third party;

4. 6.2.1.4 allow any unauthorized access to, or use of, the Service;

5. 6.2.1.5 directly or indirectly (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Profasee or authorized within the Services); use the Services or any Software for the benefit of a third party. 

6. 6.2.1.6 use data mining, robots, crawlers, or spiders, or similar data gathering and extraction tools;

7. 6.2.1.7 frame or utilize framing techniques to enclose any Profasee Marks or other Intellectual Property (including images, text, page layout, or form) of Profasee;

8. 6.2.1.8 use any meta tags or any other "hidden text" utilizing Profasee’s name or Marks;

9. 6.2.1.9 use the Service in an unlawful manner including, but not limited to, the infringement of any third party or Profasee Intellectual Property or use the Service in breach of any third party’s privacy rights;

10. 6.2.1.10 use the Service for spamming or sending any unsolicited emails or information to any person or entity;

11. 6.2.1.11 use the Service in a manner that interferes with or disrupts the provision of the Service by Profasee to third parties;

12. 6.2.1.12 access or use the Service to circumvent or exceed the Services account limitations or requirements, or access or use the Service by any means other than through the interfaces that are provided by Profasee;

13. 6.2.1.13 use the Service to upload, store or transmit any malicious code or other similar harmful software such as viruses, malware or trojan horses; 

14. 6.2.1.14 use the Service to make any transmission, display or publication of any material which is of a defamatory, offensive, abusive or menacing character to any other person;

15. 6.2.1.15 engage in or permit any unauthorized distribution of any software or programming associated with the Service including, without limitation, placing Profasee’s software or programming on any physical or virtual servers or mediums;

16. 6.2.1.16 use the Service for any transmission, display or publication of any material in breach of any law dealing with privacy or data protection in any jurisdiction;

17. 6.2.1.17 remove or obscure any copyright, patent, trademark, trade secret or similar proprietary notice affixed to any Technology, the Service, or the Profasee Platform;

18. 6.2.1.18 use the Service, Profasee Platform, or Technology for the purpose of developing a product or service, or helping another develop a product or service, whether or not it is competitive with the Service, Profasee Platform or Technology;

19. 6.2.1.19 use the Service, Profasee Platform, or Technology for the purpose of bringing an Intellectual Property claim against Profasee;

20. 6.2.1.20 cause the breach of or interfere with Profasee’s agreements with third parties, including but not limited to, the Amazon Marketplace Developer Agreement; or

21. 6.2.1.21 use or allow others to use the Technology, the Service, or the Profasee Platform for any purpose not expressly authorized in the Agreement.

2. 6.2.2 No License in Technology. Except as expressly stated in the Agreement, no licenses or rights are granted by Profasee and nothing in the Agreement implies any license to Customer in the Technology, including, without limitation, the source code. The source code will not be accessible to any Customers or Users. Customer agrees that the underlying structure, sequence, organization and source code of the Technology are valuable trade secrets of Profasee, are confidential information, and shall remain strictly confidential.

3. 6.2.3 Limited Marks Licenses. Customer hereby grants to Profasee a limited, non-exclusive, non-assignable, non-transferable license, without right to sublicense, to use its Marks in order to perform the Services.  Any use of Customer’s Marks for publicity, advertising, and marketing shall be subject to Customer’s prior written consent in each instance. Profasee may not alter Customer Marks in any manner, or use Customer Marks in any manner that may dilute, diminish, or otherwise damage Customer’s rights and goodwill in its Marks Any usage of Customer Marks by Profasee will be a reproduction of exact copies and all use of the Marks is subject to the Customer’s usage guidelines as revised from time to time and available from the Customer.

4. 6.2.4 Documentation Licenses. Profasee grants Customer the non-exclusive right to use the Documentation solely in conjunction with Customer’s use of the Service, Technology, and Profasee Platform during the Term. Profasee and any applicable third parties reserve all rights in their respective Documentation.

5. 6.2.5 Usage Restrictions. You may access and use the Services solely: (a) via the Internet or a dedicated communications line, (b) in accordance with the Documentation, and (c) for its intended purpose, as expressly stated herein. You may not mirror on Your website any portion of the Services or other licensed software, or display through Your website any results pages or other information from any of the Services that Profasee has licensed for Your use. Unless Profasee expressly authorizes it, You may not permit: (a) contractors or other third parties to use or access the Services for the third parties’ business use or benefit, and (b) use of or access to Services as or by an agency or service provider. You may not circumvent, or assist a third party to circumvent, any restrictions detailed in these Terms. You must not place an unreasonable or disproportionately large load on the Services as determined by Profasee in its sole discretion. Profasee may limit or restrict Your access if Your activities unreasonably or disproportionately burden any Services. If Profasee limits or restricts Your access under this Section, Profasee shall use commercially reasonable efforts to provide notice and information to You regarding such action as soon as, in Profasee’s sole discretion, it is practical to do so. You represent and warrant that You will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Services. Except as expressly stated in these Terms, no licenses or rights are granted by Profasee and nothing in these Terms implies any license to You in the Services. No rights to any source code are granted and You shall not Yourself, or through any third party, reverse engineer, disassemble, decompile or otherwise attempt to derive source code or design information regarding the Services and You are not permitted to make any modifications to the Services. You may not remove or obscure any copyright, patent, trademark, trade secret or similar proprietary notice affixed to any Services. You agree that the underlying structure, sequence, organization and source code of the Services are valuable trade secrets of Profasee and shall remain strictly confidential. You may not use, and may not allow Channels to use, the Services for any purpose not expressly detailed herein. You may not use the Services for the purpose of bringing an Intellectual Property claim against Profasee or for the purpose of developing a product or service, or helping another develop a product or service, that is competitive with the Services.

3. 6.3 Intellectual Property Ownership

1. 6.3.1 IP Materials. You own all information and materials related to Your products that You provide, upload to, or store in the Services, or that You direct Profasee to collect on Your behalf, including without limitation image files, text, templates, product descriptions, prices, Your Marks, URLs, and any other related information (“Customer Materials”). Profasee (or its licensors) exclusively owns all right, title and interest in and to the Services, the Documentation, access to Profasee online communities and forums, and Profasee Marks (“Profasee Materials”). You hereby assign to Profasee all intellectual property rights in the Services that You may have acquired by law or otherwise. You shall not challenge, directly or indirectly, any of Profasee’s (or its licensors’) rights to the Services.

2. 6.3.2 Profasee Rights. Profasee may access, monitor, remove content within, or disable Your access to the Services if: (a) a Channel requests that Profasee do so, (b) Profasee, in its sole discretion, believes it may incur liability because of Customer Materials, (c) Profasee is required to do so by law, government order or other legal process, or (d) to enforce these Terms. If Profasee exercises its rights under (a)-(d), Profasee shall use reasonable efforts to provide You with notice and information regarding such actions. At no additional charge to You, Profasee will provide periodic updates to the Services. Profasee may temporarily suspend access to the Profasee Platform, or any Services or both, for maintenance from time to time. Profasee will give advance notice of maintenance, unless, in Profasee’s sole discretion, it is impractical to do so.

3. 6.3.3 Customer’s Rights. Customer owns all right, title and interest in the Product Information, Customer Materials, and Customer Marks. Customer acknowledges and agrees that, in connection with the provision of the Services, Profasee may store and maintain Customer Data and Product Information for a period of time consistent with Profasee’s standard business processes for the Services. Customer grants Profasee a limited, revocable, non-exclusive, non-transferable (except in connection with an assignment of this Agreement), sublicensable license to use, access, store and process the Customer Data and Product Information to the extent necessary to provide the Services and otherwise fulfill its rights and obligations under this Agreement. And Customer grants Profasee a royalty-free, worldwide, perpetual, irrevocable, right to use, modify, distribute, publish, display, and incorporate into the Services any suggestions or feedback provided Customer or any Users related to the operation or functionality of the Service. Following expiration or termination of this Agreement or Customer’s account, Profasee may deactivate the applicable Customer’s account and delete any data, including Customer Data and Product Information, associated therewith. Prior to such deactivation, Customer may export the Customer Data. Upon such deactivation, if Customer has paid Profasee in full any Fees and Additional Fees due under this Agreement, Profasee may, in its sole discretion, provide for the exportation of Customer Data for a period of up to thirty (30) days following deactivation of Customer’s Account. Notwithstanding the foregoing, nothing in this Agreement is intended to prevent Profasee from generating and using the Technology, Service or Profasee Platform for purposes of providing, measuring, improving and marketing Profasee’s products and services; provided that Profasee shall not disclose to any third party any information that is identifiable as Customer Data. And notwithstanding anything to the contrary herein, Profasee may, for any purpose chosen in Profasee’s sole discretion, compile, use, sell, license, rent or otherwise disclose to any third party, and retain in perpetuity, Resultant Data and Customer shall not have any rights whatsoever with respect to any materials that result from such use of Resultant Data.

4. 6.3.4 Notification of Unauthorized or Breaching Use. You must notify Us immediately in the event that You become aware of any actual or attempted unauthorized access to or use of the Service, Profasee Platform, or Technology in breach of this Agreement.

7 Payment of Fees

1. 7.1 Fees. You will pay the Fees applicable to Your subscription to Services, which shall consist of a recurring usage fee (“Subscription Fee”), and, if applicable, as described in the details of Your Plan on the Account page, You will also be charged a variable GMV Fee (“GMV Fee”). GMV or “Gross Merchandise Value” means the sum equal to the value of Customer’s products processed for sale using the Services (for example, sold on a Channel or Customer’s e-commerce website). GMV excludes shipping, sales tax, and, where applicable, VAT and GST, if the Channel itemizes these amounts. GMV is calculated at the time of completion of checkout by a buyer. For purposes of calculating GMV, GMV is converted to the appropriate currency on a daily basis (using Greenwich Mean Time (GMT) as the standard time) applying the applicable rates at http://www.currencysystem.com/currencyserver/feeds/ or a similar service that Profasee reasonably designates from time to time.

2. 7.2 Subscription Fees and GMV Fees are referred to collectively as the “Fees.” Fees are paid as follows:

1. 7.2.1 Monthly Subscription Plan. If You are on a Monthly Subscription Plan, then You will automatically be charged Subscription Fees in advance for use of the Services during the next Month, using Your credit card on file, once a Month on the anniversary of Your monthly subscription date (“Renewal Date”);

2. 7.2.2 Annual Subscription Plan. If You are on an Annual Subscription Plan, then You will automatically be charged Subscription Fees in advance for use of the Services during the next Year, using Your credit card on file, once a Year on the anniversary of Your annual subscription date (“Renewal Date”);

3. 7.2.3 GMV Fees. If applicable, as described in the details of Your Plan on the Account page, after the end of each calendar month, You will be charged an additional GMV Fee on all GMV above the level associated with Your Plan and at the rate associated with Your Plan.

4. 7.2.4 Changes to Plan. If You make a change to Your plan, You are responsible for all outstanding Fees that apply at the time of the change.

3. 7.3 Billing Method. You must keep a valid credit card on file with us to pay for all incurred and recurring Fees. Profasee will charge applicable Fees to the credit card account that You authorize (“Authorized Card”), and Profasee will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in the said currency.

4. 7.4 Fee Payment. Fees and Additional Fees are due and payable per the terms of the Customer Agreement. If an automatic payment processing fails, Profasee may demand payment of the Fees, Additional Fees which are due, and any failed/returned payment fees, and temporarily disable the Customer’s access to the Technology, Service and/or Profasee Platform until full payment is made.

5. 7.5 Failure to Pay Subscription Fees. If we are not able to process payment of Fees for any reason, including payment failure using the Authorized Card, unaccepted License agreement, or unaccepted Subscription pricing, You will be notified and be given seven (7) days to correct the payment issue. During that period, we will make subsequent attempts to process payment using the Authorized Card. If those attempts are not successful, we will suspend Your Subscription at the end of the seventh (7^th) day. We will continue to make attempts to process payment using the Authorized Card for seven (7) additional days, during which time You will not have access to the Services unless the payment processing is successful, at which point, Your access will be restored. If we are still unable to process payment at the end of the fourteen (14)-day suspension period, we will terminate Your Subscription and all Services.

6. 7.6 Fee Changes. In its sole discretion, Profasee reserves the right to modify its Fees in any manner, as applicable (Customer to be advised by electronic communication, such as email), to be effective at the start of a Renewal Term. To avoid liability for any such modified Fees during a Renewal Term, Customer must timely terminate the Agreement prior to the commencement of the next Renewal Term in accordance with the procedures set forth under these Terms.

7. 7.7 Fees Non-refundable. All Fee payments are final. Profasee does not provide refunds or credits of Fees, even if You terminate prior to expiration of the Term, unless a refund is allowable under these Terms in the circumstances.

8. 7.8 Taxes. In addition to the Fees under these Terms, Customer agrees to pay all applicable taxes related to the activities contemplated by these Terms, including without limitation any sales, use or ad valorem taxes, and excluding taxes based upon Profasee’s net income. You are responsible for: (a) identifying to Profasee its main tax location where You will access the Services, and (b) remitting all applicable taxes to the appropriate local, state, national and international authorities. You shall reimburse Profasee for any taxes, interest and penalties levied against Profasee if You fail to remit. Where obligated by applicable law, Profasee will, for Your benefit, collect all applicable local, state, national or international taxes that are owed as a result of Your use of the Profasee Platform or Service, and remit collected taxes to the appropriate taxing authority based on Your main billing address of record.

9. 7.9 Breach of Payment Obligation. A failure to pay any Fees or Additional Fees when due is a material breach of the Agreement. If Customer fails to pay any Fees when due, then one hundred (100%) of the remaining balance due for the total of all Fees, including Additional Fees, under the remaining Term of the Agreement shall immediately become due. This section shall survive termination of the Agreement.

8 Term and Termination

1. 8.1 Term. Your access to the Services shall be for the period You select during signup (“Term”). If You select an annual Term, You may only downgrade Services during the last thirty (30) days of that Term. The Services will renew automatically at the end of Your current Term for successive periods, each equal to the length of Term You have selected, unless You terminate Your Subscription prior to the Renewal Date as provided for under these Terms.

2. 8.2 Termination. 

1. 8.2.1 You may terminate Services by terminating Your Subscription from the Account page in Your Account or as provided hereunder. Upon termination of the Subscription by either party for any reason:

1. 8.2.1.1 Profasee will cease providing You with the Services associated with the Subscription;

2. 8.2.1.2 any outstanding balance owed to Profasee for Your use of the Services through the effective date of such termination will immediately become due and payable in full; and

3. 8.2.1.3 Your Service with Profasse will become unavailable for Your use.

2. 8.2.2 In addition to any other remedies it may have, either party may also terminate the Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of the Agreement.  Customer will pay in full for the Services up to and including the last day on which the Services are provided.  All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability. 

3. 8.3 Termination for Cause

1. 8.3.1 Termination by Customer for Cause. Customer may terminate the Agreement other than at the end of a Term upon a thirty (30)-day written notice to Profasee, which notice shall expressly state all of the reasons for the termination under this provision in adequate detail. The Customer shall proceed to terminate the Agreement if, and only if, Profasee has materially breached the Agreement and Profasee has not cured the breach within thirty (30) days after the written notice of the breach (provided, however, that where the Profasee is diligently pursuing the cure but cannot practicably cure within thirty (30) days, no termination will occur so long as Profasee has commenced pursuing the cure within thirty (30) days of such notice).

2. 8.3.2 Termination by Profasee for Cause. Profasee may terminate this Agreement other than at the end of a Term upon written notice (which shall expressly state all the reasons for the termination under this provision in adequate detail) to the Customer where: Customer has materially breached the Agreement and Customer has not cured the breach within thirty (30) days after written notice of the breach (provided, however, that where the Customer is diligently pursuing the cure but cannot practicably cure within thirty (30) days, the foregoing will not apply so long as Customer has commenced pursuing the cure within thirty (30) days of such notice), (ii) upon Customer’s failure to pay Fees or Additional Fees when due, and (iii) upon Customer’s material breach of any other provision of the Agreement.

3. 8.3.3 Termination without Cause. Either party may terminate the Agreement, upon written notice, with or without cause, at least thirty (30) days before the end of a Term, which shall be effective at the end of such Term.

4. 8.3.4 Mutual Termination. Parties may terminate the Agreement as may be stated in a writing signed by both of the parties.

5. 8.3.5 Legal Requirement for Termination. The Agreement may be terminated to the extent permitted by law, if Profasee suffers an Insolvency Event.

4. 8.4 Effect of Expiration or Termination. Upon expiration or termination of these Terms, the licenses granted under these Terms shall terminate immediately. For financial and governmental audit needs, Customer Materials will be retained by Profasee for the minimum period required by applicable law after expiration or termination and for a further period of time as may be determined by Profasee in its sole discretion.

5. 8.5 Notwithstanding the foregoing, Profasee reserves the right to modify or terminate the Subscription or Your Account, with or without reason, without notice at any time. Your continued use of the Services, if any, beyond the termination date shall be pursuant to these Terms.

9 Suspension and Termination of the Service

We reserve the right to suspend or terminate your access to the Service at any time in our sole discretion if we believe you have violated these Terms or the Restrictions and Responsibilities terms in section 6.2.

10 Data Access

1. 10.1 The Customer is obliged to provide Profasee will all the data necessary for performance of the services as contractually agreed upon.

2. 10.2 The data will usually by delivered by connecting the advertising and or retail accounts of the Customer (e.g. Amazon MWS, Amazon Seller Central, Amazon AMS, Amazon Advertising API) to the Customer's Organization account on the Platform via an application programming interface (API). This linking will give the Platform access to the available advertising and/or retail sales data to allow its analysis. Once an account has been connected to the Profasee platform, advertising and retail sales data will be synced to Profasee’s databases on an ongoing basis, regardless of whether the Customer is currently a paid subscriber, until such time that the Customer revokes API access or that the Customer requests the deletion of their account. Instructions to delete a Profasee account are available here.

11 Confidentiality

1. 11.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Profasee includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Profasee to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Each Party remains sole owner of the intellectual property rights it owned prior to the execution of the Agreement. Customer authorizes Company to collect, use, analyze and process Customer Data, to combine the Customer Data with Profasee Data in order to perform the Service for the Customer. Profasee shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, Profasee shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Profasee will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

2. 11.2 Non-Confidential Information. Confidential Information does not include any information that: (a) is or becomes publicly available through no action or inaction of the receiving party, (b) is already in the receiving party’s possession at the time of disclosure and is not subject to confidentiality obligations, (c) the receiving party obtains from a third party without a breach of the third party’s obligations of confidentiality, (d) the receiving party independently develops without use of the disclosing party’s Confidential Information, or (e) a party agrees in writing is free of restrictions. 

3. 11.3 Legal Disclosure. If either party receives a subpoena or other validly issued judicial process requesting, or is required by a government agency to disclose the other party’s Confidential Information, the receiving party shall notify the disclosing party, unless doing so would violate the subpoena or process, and, upon the disclosing party’s request shall reasonably cooperate to seek confidential treatment or to obtain an appropriate protective order to preserve the confidentiality of the Confidential Information at the disclosing party’s sole expense. All confidentiality obligations survive the Term and shall remain in effect until such Confidential Information ceases being Confidential Information through no fault of the receiving party or if the parties agree in writing to terminate their confidentiality obligations, provided, however, that any item of Confidential Information that constitutes a “trade secret” (as such term is defined in the Uniform Trade Secrets Act as adopted by the State of Delaware) shall remain subject to non-disclosure under this Agreement for as long as such item continues to constitute a “trade secret” (as so defined).

4. 11.4 Breach of Confidentiality. The parties agree that breach of this confidentiality obligation will cause irreparable damage that cannot be fully remedied through the payment of monetary damages and that the injured party has the right to obtain injunctive relief for any such breach or threatened breach without the obligation of posting bond, in addition to any other remedies available at law or in equity. Notwithstanding the foregoing, either party may make disclosures as required by law as reasonably advised by its legal counsel without the consent of the other party and in such event, the disclosing party will provide at least five (5) business days prior written notice of such disclosure unless prohibited by law and/or the Agreement. Subject to its confidentiality obligations, Profasee reserves the right to provide the Services to Your competitors and makes no promise of exclusivity in any particular market segment.

12 Customer Responsibilities

1. 12.1 Privacy / Security / Cookies. You must have and enforce a privacy policy that complies with all applicable laws, rules and regulations including without limitation the treatment of all personal information in accordance with European Union and other non-U.S. applicable laws and governing authorities to the extent that You sell into international marketplaces or otherwise is subject to the laws of those authorities. You must secure buyer information and not allow buyer information to be disclosed except in accordance with Your privacy policy. You must establish security processes to protect personal information in accordance with applicable laws and at least as restrictive as industry standards, but no less than reasonable care. You acknowledge that Your information and Your buyers’ information (personal or otherwise) may be transmitted to the United States or European Union and other non-U.S. jurisdictions as a result of Profasee providing the Services. In cases in which the Data Protection Law of the European Union applies to the provision of Services, the parties will comply with all the applicable data protection agreement terms. For the purposes of this Section, applicable Data Protection Law has the meaning attributed to this term in this URL: https://profasee.com/terms/privacy-policy. You acknowledge and agree that Your use of the Services, including information transmitted to or stored by Profasee, is authorized by Your privacy policy and any terms and conditions You may have in place with Your customers. You understand that Your Customer Materials (not including buyer and credit card information) may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Customer and credit card information is always encrypted during transfer over networks and also when stored at rest. As a condition to use the Service, Technology, and/or Profasee Platform, Customer must ensure that Customer’s privacy statement discloses the use of “cookies” or similar technologies that may be used by Customer or a third party (including Profasee) to track browsing and purchasing habits, and such use of “cookies” complies with all applicable laws, rules and regulations, foreign law, treaties, and conventions, including any opt in and opt out requirement.

2. 12.2 CCPA. In cases where Profasee handles the Personal Information of California residents on Customer’s behalf in connection with the Services, the parties will comply with the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq. (“CCPA”) and the following terms will apply: (a) Profasee at all times under these Terms is acting as Customer’s Service Provider and has been engaged by Customer for the Business Purpose of providing the Services detailed in these Terms; (b) Profasee will not Sell Personal Information it handles in connection with the Services; (c) Profasee will not retain, use or disclose Personal Information for any purpose other than for the specific Business Purposes authorized by Customer; and (d) To the extent required by applicable law, Profasee will provide a mechanism for Customer to handle individual requests involving Personal Information, or assist Customer in handling such requests. All capitalized terms in the foregoing sentence not otherwise defined in these Terms shall have the meaning detailed in the CCPA. 

3. 12.3 Suspension of Access. Profasee may suspend or terminate Customer’s access to the Services immediately, without prior notice to Customer, if Profasee believes, in good faith, that Customer is utilizing the Services for any illegal, abusive, or disruptive purpose. In addition, notwithstanding any other provision of this Agreement, Customer acknowledges that Profasee shall have the right to restrict or suspend Customer’s access to the Services if in Profasee’s sole determination any of the following circumstances occurs: (i) full or partial interface failure; (ii) a breach in the security of the Services; (iii) a material breach by Customer of Customer’s obligations under this Agreement; or (iv) in order to comply with applicable law.

4. 12.4 Languages. The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and Profasee’s Terms of Service available in another language, the most current English version of the Terms of Service will prevail.

5. 12.5 Channel Accounts. You are responsible for opening and maintaining in good standing Your own accounts with the applicable Channels and agreeing to, and complying with, all applicable requirements of the applicable Channels. You authorize the Us on Your behalf, to access the Channels with which You have established a Channel account to retrieve and post information in furtherance of the Services. You are responsible for all third-party Fees payable to Channels and other third-party providers and unless expressly agreed to otherwise with Profasee, You will pay those fees directly to the Channels in accordance with their applicable payment terms.

6. 12.6 Compliance with Laws. The parties agree that at all times during the Term they comply with all applicable laws, rules and regulations and codes as updated from time to time related to their performance of their obligations under these Terms and, as to You, activities that You undertake in connection with Your use of the Services, including without limitation those governing the online sale of goods and services, those governing anti-bribery and anti-corruption, including without limitation the U.K. Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”), respectively, and U.S. export controls and trade sanctions and economic embargoes. You shall not use the Services for any illegal or unauthorized purpose.

7. 12.7 Product Information and Customer Materials. Customer is responsible for providing all Product Information and Customer Materials in local languages and for providing buyer support in those local languages, unless expressly stated in a writing signed by the parties.

13 Aggregated Data.

While Customer Data shall remain the property of Customer, Profasee is permitted to aggregate and anonymize Customer Data and/or other data that Customer provides to Profasee or that is related to Customer’s use of the Services (“Aggregated Data”), provided that such Aggregated Data is anonymized and does not identify to any third party that Customer is the source of the Aggregated Data. Profasee shall be the owner of the Aggregated Data and reserves the right to use, license, and sublicense the Aggregated Data.

14 Beta Testing 

1. 14.1 Beta Testers. Profasee may, in its sole discretion, offer eligible Customers the opportunity to be Beta Testers of the Service or new features or versions of the Service from time to time, in a manner authorized by Profasee, and as subject to the Agreement.

2. 14.2 Beta Test Period. If You subscribe to the Service as a Beta Tester for a period of time (“Beta Test Period”), the length of any such Beta Test Period may vary and will be indicated at the time You register for Your subscription.

3. 14.3 Expiration. You will be notified when Your Beta Test Period will expire. If Your Beta Test Period expires and You have not subscribed to a paid subscription to the Service, You will still be able to access some of the Service (very limited features), but You will no longer be able to manage orders, view inventory reports, or access other features at Profasee’s sole discretion.

4. 14.4 Subject to the Agreement. If You subscribe to the Service as a Beta Tester, You are subject to the terms of the Beta Test Agreement and these Terms. Profasee may discontinue the Beta Testing at any time in its sole discretion. The Services as provided during the Beta Test Period may not work the same way as a final version. Profasee may change or not release a final version of such Service in its sole discretion.

5. 14.5 Confidentiality. The Services provided during the Beta Test Period and all materials relating thereto are Profasee’s Confidential Information.

15 Representations and Warranties

1. 15.1 Customer’s Warranty and Limitations. 

1. 15.1.1 Customer represents and warrants that Customer will not engage in the activities prohibited in this Agreement and the Product Information and Customer Materials (i) is owned (or validly licensed for all uses required under the Agreement) by Customer or is in the public domain, (ii) does not constitute defamation, libel, or obscenity, (iii) does not result in any consumer fraud, product liability, or breach of contract, or cause injury to any third party and (iv) does not contain, and will not introduce into the Technology, Service and/or the Profasee Platform, any viruses, Trojan horses, worms, spyware, time bombs or other forms of malware, malicious code or computer programming routines which may interfere with or disrupt the Services and/or Profasee Platform.

2. 15.1.2 Customer represents and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Profasee against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Profasee has no obligation to monitor Customer’s use of the Services, Profasee may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3. 15.1.3 Customer represents and warrants that each Customer Website that utilizes any Service shall contain all of the appropriate disclosures regarding the collection and use of user data as required by applicable laws and Customer shall fully comply with all of the privacy-related laws and industry privacy guidelines of each country in which it has users.  Without limiting the foregoing, each Customer Website that utilizes any Service shall include, where required by law, an opt-in mechanism and any required notices including but not limited to a legally sufficient privacy policy.

2. 15.2 Profasee’s Warranty and Limitations. Profasee represents and warrants that:

1. 15.2.1 it has the right to provide the Service as contemplated under these Terms and that the provision of the Service in accordance with these Terms does not and will not infringe any Intellectual Property rights of third parties in locations where the Services are provided. Upon Profasee’s determination, in its sole discretion, that the use of the Service infringes upon the rights of any third party, Profasee may, at its sole discretion and own cost and expense and without further liability or obligation to Customer, either: (i) procure the right for Customer to continue to license the Service, (ii) modify the Service in such a way that the use thereof does not infringe on the rights of third parties, or (iii) terminate the Agreement by notice to Customer and refund any Fees paid in advance for the license to use the Service during the remaining (on a pro rata basis) unused portion of the Term after the termination date, if any. Profasee shall have no liability or obligation with respect to any infringement claim if the infringement is caused by: (i) a modification made by Customer to an item, software, or Service supplied by Profasee or a modification made by Profasee at Customer’s request, (ii) use of the Service, in an application or environment, or other than as intended under the Agreement, (iii) Customer’s unauthorized use of the Services, (iv) Profasee acting in accordance with Customer’s specifications or guidelines, or (v) the combination, operation or use of the Service, with other third party product(s) not supplied by Profasee;

2. 15.2.2 the Technology, the Service and Profasee Platform do not currently contain, and Profasee will not intentionally introduce into the Technology, Service and/or the Profasee Platform, any viruses, Trojan horses, worms, spyware, time bombs or other forms of malware, malicious code or computer programming routines; and

3. 15.2.3 the Service will operate and function substantially as described on the Website. Such warranty shall only apply if the applicable Service has been utilized by Customer in accordance with the Documentation, these Terms, and applicable laws, rules and regulations, foreign law, treaties, and conventions. Such warranty is made to and for the benefit of Customer only. Customer’s sole and exclusive remedy for Profasee’s breach of this warranty shall be that Profasee shall use commercially reasonable efforts to modify the Services to achieve in all material respects the functionality described in the Agreement and, if Profasee is unable to restore such functionality, Customer shall be entitled to terminate this Agreement and receive a pro-rata refund of the Fees paid under the Agreement for the unused portion of the then current Term and Profasee shall have no further liability or obligations. Profasee shall have no obligation with respect to a warranty claim unless notified in writing of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent in accordance with this Agreement.

16 Disclaimers / Limitation of Liability

1. 16.1 Channel Access and Availability. Profasee does not control, and is not responsible for: the (a) quality, safety or legality of products or services available through Channels, (b) truth or accuracy of the content from Channels, or (c) availability or technical capabilities of Channels or links to Channels. Profasee is not responsible for content supplied by third parties, or for actions You take in reliance on that content. Profasee has no liability to You for failures based on services not provided by Profasee. In its sole discretion, Profasee may change available Channels from time to time including without limitation discontinuing or adding new Channels. 

2. 16.2 Change in Service Structure. From time to time, Profasee may change the Services’ structure, features, layout, design or display, as well as the scope and availability of the information and content therein, without prior notice. Changes of this type by their very nature may result in glitches or cause inconvenience of some kind. Customer agrees and acknowledges that Profasee does not assume any responsibility with respect to, or in connection with the introduction of such changes or from any malfunctions or failures that may result therefrom.

3. 16.3 Compliance with Applicable Law. Customer bears sole and exclusive responsibility for complying with any applicable laws regarding its use of the services, including, but not limited to, any laws and regulations regarding the protection of personal information. Profasee takes no responsibility for any claim which may arise out of or in connection with customer’s use of the services in breach of applicable law.

4. 16.4 Liability Cap. Profasee is not liable to you or any third party for the failure of a person to enter into a transaction by means of your use of the Services or other software licensed. You are solely responsible for all selection of parties with whom You do business, and for terms and conditions of Your agreements with those parties and with Channels. Profasee has no responsibility for the quality or availability of goods or services provided by You, any buyer's ability to pay, any third party's compliance with the terms of a transaction, or for any injury, loss or damage caused or alleged to have been caused by the goods or services obtained by a buyer or sold by You through use of the services. Profasee shall not be liable to You for any lost profits, loss of data, or any form of indirect, special, incidental, punitive, or consequential damages of any character from any causes of action of any kind with respect to these terms, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not You have been advised of the possibility of such damage. 

5. 16.5 Limitation of Liability. To the maximum extent permitted by applicable law, and except in the event of intentional misconduct or breach of Profasee’s confidentiality obligations, Profasee, including its employees, directors, officers, shareholders, advisors, and anyone acting on its behalf, will not be liable for any indirect, incidental, consequential, special, statutory or punitive damages, losses (including loss of profit, loss of business or business opportunities and loss of data), arising from, or in connection, with this agreement, any use of, or the inability to use the services or the output data, any reliance upon the output data, or any error, incompleteness, incorrectness or inaccuracy of the services or the output data.

6. 16.6 Aggregate Liability. Profasee’s aggregate liability under these terms will not exceed the amounts You paid during the twelve-month period immediately preceding the date the claim arose, for Customers on an annual Subscription Plan and the amount you paid during the one-month period immediately preceding the date the claim arose, for Customers on a monthly Subscription Plan. You are responsible for reading and understanding the documentation as it relates to Your use of the services. You are responsible for contacting Profasee to request clarification on how to use the Services prior to accessing or using that Service. Profasee is not responsible for the results of Your use of the services as described in the Documentation.

7. 16.6 Disclaimer of Warranties. Your use of the Services is at Your sole risk. The Services are provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory. Profasee makes no warranties, whether express, implied or statutory, with respect to the Services or Profasee Marks. Profasee disclaims any and all warranties with respect to the Services and Profasee Marks including without limitation any warranties against infringement and implied warranty of merchantability or fitness for a particular purpose, and warranties that the services will operate uninterrupted, securely, defect-free, or error-free. Profasee makes no representations or warranties regarding the Services’ localization to a particular market including without limitation local language, local support of taxes, payment or shipping carriers. Profasee makes no warranty regarding the accuracy, timeliness, truthfulness, completeness, security, or reliability of any content obtained through the Services or from any Channel or third-party interface.

17 Indemnification

1. 17.1 Customer Indemnification. You indemnify, defend, and hold harmless Profasee and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees), of whatever type or nature incurred by Profasee by reason of a third party claim or assertion (“Claim”) brought against Profasee and its Representatives arising out of or related to: (a) Your failure to comply with or breach of these Terms, (b) Your products listed, supplied or sold using the Services including without limitation Intellectual Property infringement claims and product liability claims, Customer Marks, ad content, and Customer Materials, (c) Your gross negligence or willful misconduct or that of Your employees or agents related to Your performance of Your obligations hereunder, and (d) misappropriation or fraud related to buyer information (personal or otherwise) or buyer funds. “Representatives” collectively means the affiliates, directors, officers, employees, permitted assigns and agents of a party.

2. 17.2 Profasee Indemnification. Profasee indemnifies, defends and holds You harmless from and against all Claims brought against You, arising out of or related to: (a) Your authorized use of the Services infringing on the Intellectual Property rights of a third party in the territory in which Services are provided, (b) Your authorized use of Profasee Marks (not a third party licensor’s marks) infringing upon a U.S. trademark and (c) any gross negligence or willful misconduct of Profasee or its employees or agents related to Profasee’s performance of its obligations under these Terms.

3. 17.3 Requirements of Indemnification. In order for the indemnification obligations of the indemnifying parties to apply, the indemnified party must promptly provide the indemnifying party with notice in writing of any Claim, promptly tender the control of the defense and settlement of any Claim to the indemnifying party (at the indemnifying party’s expense and with indemnifying party’s choice of counsel), cooperate fully with the indemnifying party (at the indemnifying party’s request and expense) in defending or settling the Claim including without limitation providing any information or materials necessary for the defense, and take all commercially reasonable steps to mitigate damages. The indemnifying party shall only be liable to the indemnified party for the amount of damages as determined in a final, non-appealable order of a court of competent jurisdiction or paid by way of settlement, but the indemnifying party shall have no liability for any settlement made by an indemnified party without the indemnifying party’s prior written consent, which may be withheld in the indemnifying party’s sole discretion. The indemnifying party will not enter into any settlement or compromise of any Claim without the indemnified party’s prior consent if the settlement would require admission of fault or payment by the indemnified party.

4. 17.4 Exclusions and Infringement Remedies. Upon Profasee’s sole determination that the use of the Services infringes upon the rights of any third party, Profasee may, at its sole discretion and own cost and expense, either: (a) procure the right for You to continue to license the Services, (b) modify the Services in such a way that the use thereof does not infringe on the rights of third parties, or (c) terminate Your license to the Services and these Terms by notice to You. Profasee shall have no liability or obligation with respect to any infringement claim if the infringement is caused by: (i) a modification You make to the Services or a modification Profasee makes at Your request, (ii) use of the Services in an application or environment other than as intended under these Terms, (iii) Your unauthorized use of the Services, (iv) Profasee acting in accordance with Your specifications or guidelines, or (v) the combination, operation or use of the Services with other third party product(s) not supplied by Profasee. You will indemnify, defend, and hold harmless Profasee and its Representatives from and against all Claims arising out of or related to any of the circumstances stated in this Section. The remedies stated in this Section are Your sole and exclusive remedies for the infringement of third-party Intellectual Property rights by Profasee.

18 Miscellaneous Provisions

1. 18.1 Relationship of the Parties. The parties are independent contractors. These Terms do not create any joint venture, partnership, agency or employment relationship between the parties.

2. 18.2 Governing Law and Dispute Resolution. The laws of the State of Delaware, without regard to its conflicts of laws’ provisions, govern the Agreement. Each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the applicable courts located in the state of Florida, for purposes of any action, suit or proceeding arising out of or relating to the Agreement, the customer hereby waives, and covenants that the Customer will not assert (whether as plaintiff, defendant or otherwise), any right to trial by jury in any forum in respect of any issue, claim, demand, action or cause of action arising out of or based upon these Terms, the subject matter hereof or any document relating hereto, in each case whether now existing or hereafter arising or whether in contract or in tort or otherwise. The Customer acknowledges that the Customer has had the opportunity to consult with counsel regarding all the terms herein, including this Section, that the Customer fully understands the terms herein, the content and effect, and that the Customer voluntarily and knowingly agrees to the terms herein, and that in the event of any ambiguity in the Agreement, any presumption that such ambiguity shall be construed against the drafter of the agreement shall not apply to the Agreement.

3. 18.3 Force Majeure. Neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under these Terms other than payment if, and to the extent that, the failure or delay is caused by events beyond such party’s reasonable control including without limitation acts of the public enemy or governmental body in its sovereign or contractual capacity, war, fire, floods, strikes, epidemics, pandemics, quarantine restrictions, unavailability of any Channel, or the Internet, civil unrest or riots, acts of terrorism, transportation delays, freight embargoes or unusually severe weather conditions. The affected party shall use commercially reasonable efforts to avoid or remove the causes of non-performance or delay, and shall continue performance whenever the causes are removed. If any non-performance or delay continues for more than thirty (30) days, these Terms may be terminated by the unaffected party without liability upon written notice to the affected party.

4. 18.4 Notice. Save as otherwise explicitly provided in the Agreement, any notice required or permitted by the Agreement shall be in writing and deemed delivered if delivered (a) by personal delivery when delivered, (b) by overnight courier upon written verification of receipt, (c) by certified or registered mail, return receipt requested, upon verification of receipt, or (d) upon transmission via email to a properly addressed email address as provided in the Customer Agreement as long as “NOTICE” or “LEGAL NOTICE” appears in the subject line of the email and the email is set up to show a delivery confirmation. Notices must be sent to the contacts and addresses in the Agreement, or any new address provided by the permitted notice methods, and in the case of Profasee, with a copy to the attention of General Counsel (and, if by email to: support@profasee.com). You may not claim, and hereby waive, any defense of lack of sufficient notice for Your failure to provide Profasee with Your current contact information.

5. 18.5 Amendments. Except as otherwise stated herein, any amendments to these Terms must be in writing and executed by the parties. 

6. 18.6 Assignment. Neither party may assign these Terms without the other party’s prior written consent, except that: (a) Profasee may assign these Terms without Your consent in the case of a reorganization, merger, consolidation, or sale of all or substantially all of its assets, and (b) Profasee may assign these Terms without Your consent to Profasee’s affiliates. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

7. 18.7 No Waiver. The failure of either party to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

8. 18.8 No Reliance. Each party represents and warrants to the other party that it is not relying on any promises, guarantees and/or assurances of the other party that are not otherwise expressly contained in the Agreement.

9. 18.9 Severability. If any provision of these terms is held or made invalid or unenforceable for any reason, the invalidity will not affect the remainder of these Terms and the severed provision shall be interpreted to be consistent with these Terms. 

10. 18.10 Headings. Section headings are for reference purposes only and in no way affect the meaning or interpretation of these Terms.

11. 18.11 Exhibits. All Exhibits, Schedules and other addenda referenced in the Agreement are incorporated into the Agreement by reference.

12. 18.12 Entire Agreement. These Terms and the documents they incorporate by reference constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all prior or collateral negotiations, proposals, agreements and understandings, whether oral or written, relating to the subject matter hereof (including, but not limited to, any prior versions of these Terms). Any representation, warranty, course of dealing or trade usage not expressly contained or reference in these Terms shall not be binding.

Profasee Inc.

850 N. 11^th Ave 

Hollywood, FL 33019

United States

Questions about these Terms should be sent to: support@profasee.com.

Last updated on: March 06April 15, 20232