PROFUSE SOLUTIONS INC. (“Profuse”) is a leader in comprehensive hosting solutions. This Service Agreement (“Agreement”) governs your purchase and use, in any manner, of all services provided by PROFUSE SOLUTIONS INC and (List following services)
You must accept all the terms within this Agreement prior to the use of any of Profuse’s services.
NOTWITHSTANDING, BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HERE AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.
This Agreement is entered into by and between PROFUSE SOLUTIONS INC. (place of incorporation) and you. This Agreement sets forth the general terms and conditions of your use of the products and services purchased (individually and collectively, the “Services”), and is in addition to (not in lieu) of any specific terms and conditions that apply to the particular Services.
The terms “we”, “us” or “our” shall refer to PROFUSE SOLUTIONS INC. The terms of “you”,”your”,”user” or “customer” shall refer to any individual, agent, or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. This agreement is made effective as of the date of your (first payment for use of the services) or the date of electronic acceptance. PROFUSE SOLUTIONS INC reserves the right to change or modify any of the terms and conditions contained in this Agreement, any Addendums and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Any changes or modification will be effective upon posting of the revisions on the PROFUSE SOLUTIONS INC Web site (the "Site"). Your continued use of Services following PROFUSE SOLUTIONS INC’S posting of any changes or modifications will constitute your acceptance of such changes or modifications.
The Services offered by Profuse are available only to Users who can form legally binding contracts under applicable law. By using the services offered by Profuse, you represent and warrant that you are (i0 at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, and (iii) are not a person barred from purchasing or receiving the Services under the laws of the United States or other applicable jurisdiction.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority (either actual or apparent authority) to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “you”, “your”, “User” or “customer” shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, PROFUSE SOLUTIONS INC. finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Profuse Solutions shall not be liable for any loss or damage resulting from Profuse Solution’s reliance on any instruction, notice, document or communication reasonably believed by PROFUSE SOLUTIONS INC. to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document, or communication, Profuse reserves the right (but undertakes no duty) to require additional authentication from you.
3.1 Term This Agreement shall be for an "Initial Term" as chosen by you in the Order Form located on this Site at the time you register for the Services. "Initial" is defined when the user uses the service and when the user has paid its fee. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide PROFUSE SOLUTIONS INC with notice of termination five (5) days prior to the end of the Initial Term or the Renewal Term. You must provide PROFUSE SOLUTIONS INC with your notice of termination by clicking on the "Cancel Service" button located on the Site or as otherwise provided by this Agreement. Upon clicking on the "Cancel Service" button, you will be asked to provide PROFUSE SOLUTIONS INC with sufficient customer identification information so that PROFUSE SOLUTIONS INC may properly identify you and your account. Any notice of termination will be effective following five (5) days after PROFUSE SOLUTIONS INC’S receipt thereof. Once customer makes purchase they are entitled to the service. PROFUSE SOLUTIONS INC Network will deliver its services at the fullest extent.
3.2 Termination Policy PROFUSE SOLUTIONS INC reserves the right to cancel a customer’s service at any time. Your termination request or notice must be submitted to PROFUSE SOLUTIONS INC in the manner described in Section 1.1. PROFUSE SOLUTIONS INC may terminate this Agreement at any time and for any reason by providing to you written notice five (5) days prior to the date of termination.
3.3 Default and Cure Default and Cure In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) business days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.
3.4 Charges You agree to pay for all charges or costs attributable to your use of the Service at the then current PROFUSE SOLUTIONS INC. prices, which shall be exclusive of any applicable taxes. You are responsible for the payment of all Federal, State, and Local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on PROFUSE SOLUTIONS INC’S net income.
3.5 Payment Payment must be received in full prior to account activation. All accounts must not have delinquent balances. Once payment is received, the account will client’s account will be activated. Each payment is due thirty (30) days from the day of the previous payment.
Customers will be notified via email 10 days prior to the account due date. Failure to make payment prior to the due date results in deactivation of the account anytime after payment is due.
A reactivation of the account requires a payment of 10% of the total monthly invoice amount in addition to the delinquent invoice amount.
Payment by money order must arrive on time. No Exceptions.
Payment for your service must be paid at the beginning of each billing cycle. Profuse solutions Inc. reserves the right to modify the pricing of each service, mid-cycle, and without prior warning. Future payments on all subsequent billing cycles shall be in accordance with the new pricing.
Upon entering into this Agreement, you must choose to pay either by direct charge to a credit or debit card, or receive an invoice and submit the invoice amount by money order. If you choose to pay by credit or debit card upon registering for the Services, you thereby authorize PROFUSE SOLUTIONS INC. to charge your credit or debit card to pay for any charges that may apply to your account. You must notify PROFUSE SOLUTIONS INC of any changes to your card account information including but not limited to: applicable account number, cancellation, or expiration of the account, billing address, or any information that may prohibit PROFUSE SOLUTIONS INC. from charging your account. If customer fails to notify PROFUSE SOLUTIONS INC of any changes to customer’s card account information prior to the account due date, PROFUSE SOLUTIONS INC. will deem the account payment delinquent after the account balance is due and deactivate customer’s account.
If for any reason PROFUSE SOLUTIONS INC is unable to charge your Payment Method for the full amount owed for the Services provided, or if Profuse receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, you agree that Profuse may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to you, of any domain names or Services registered or renewed on your behalf. PROFUSE SOLUTIONS INC also reserves the right to charge you reasonable "administrative fees" or "processing fees" for (i) tasks PROFUSE SOLUTIONS INC may perform outside the normal scope of its Services, (ii) additional time and/or costs PROFUSE SOLUTIONS INC may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by PROFUSE SOLUTIONS INC in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) disputes that require accounting or legal services, whether performed by PROFUSE SOLUTIONS INC staff or by outside firms retained by PROFUSE SOLUTIONS INC; (iii) recouping any and all costs and fees, including the cost of Services, incurred by PROFUSE SOLUTIONS INC as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with PROFUSE SOLUTIONS INC.
3.6 Refund Policy Customer has thirty (30) days beginning from the date of first payment to a trial period of Services. Within the initial thirty (30) days period, the customer has the right to cancel or demand a full refund if customer is not satisfied with the services. However, upon exceeding the initial thirty (30) days period, the customer will no longer be entitled to any refund and they will be billed until a cancellation is incited. Section 3.6 Refund Policy DOES NOT apply to any terms under Section 5 enforcement. If Customer’s account is suspended within the initial thirty (30) days for any reasons in violation of this Agreement the Customer waives the right to any refund under this section.
4.1 Applicable Use Policy The PROFUSE SOLUTIONS INC Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services. The Usage Policy is posted on PROFUSE SOLUTIONS INC’S Web site (or such other location as PROFUSE SOLUTIONS INC may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICYS. BY USING THE SERVICES, YOU AGREE TO HAVE READ, UNDERSTOOD, AND ACCEPTED THE TERMS UNDER THE USAGE POLICY AND TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. PROFUSE SOLUTIONS INC RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
4.2 Material and Product Requirements Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on PROFUSE SOLUTIONS INC’S equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by PROFUSE SOLUTIONS INC. PROFUSE SOLUTIONS INC will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", PROFUSE SOLUTIONS INC has the option at any time to reject the hosting of this material. PROFUSE SOLUTIONS INC will notify you when we deem your material is not server ready and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of PROFUSE SOLUTIONS INC. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not PROFUSE SOLUTIONS INC’S responsibility to provide this knowledge or customer support outside of the Services agreed to by you and PROFUSE SOLUTIONS INC. Profuse Solutions will only supply customer care in regards to the hardware and the accessibility of the Services to you. PROFUSE SOLUTIONS INC. will not provide customer support to assist you in manipulating any of your material in order to be compatible with Profuse Solution Inc’s hardware.
YOU AGREE TO BACK UP ANY AND ALL DATA OR FILES YOU HAVE STORED ON PROFUSE SOLUTIONS INC’S SYSTEM.
4.3 Bandwidth and Storage Usage You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If your use of any bandwidth or storage space exceeds the amount stated on your service package, you agree to pay for additional charges for the excess amount of use.
4.4 Content By entering into this agreement, you agree that all services provided by PROFUSE SOLUTIONS INC are to be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or Local law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, material that jeopardizes national security, or material protected by trade secret or other laws. The subscriber agrees to indemnify and hold harmless PROFUSE SOLUTIONS INC from any claims resulting from the subscriber's use of PROFUSE SOLUTIONS INC’S services which damages the subscriber or any other party.
Examples of prohibited content or links include (but are not limited to):
5.1 Investigation of Violations Profuse Solutions may investigate any reported or suspected violations of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, customers and/or third parties. The investigation includes but is not limited to: review of currently stored materials, review of past stored materials, diagnostics and analysis of stored material to comply with the laws of local, State, Federal, and all other reasonable investigations under the law. PROFUSE SOLUTIONS INC. will not access or review the content of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
PROFUSE SOLUTIONS INC. may suspend your access to your materials until PROFUSE SOLUTIONS INC. has completed its investigation. During this time, you will not be credited the time of the suspension for the investigation.
5.2 Removal; Account Termination Policy PROFUSE SOLUTIONS INC reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, PROFUSE SOLUTIONS INC may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on PROFUSE SOLUTIONS INC’S systems, (d) remove or destroy any data and files, and/or (e) disabling or removing any hypertext links to third party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by PROFUSE SOLUTIONS INC which, in PROFUSE SOLUTIONS INC’S sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes PROFUSE SOLUTIONS INC to civil or criminal liability or public ridicule. It is PROFUSE SOLUTIONS INC’S policy to terminate repeat infringers. A repeat offender is defined as a User who was issued at least one (1) warning of violation and who fails to correct the violation to comply with this agreement. PROFUSE SOLUTIONS INC’S right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If PROFUSE SOLUTIONS INC takes corrective action due to such possible violation, PROFUSE SOLUTIONS INC will not be obligated to refund to you any fees paid in advance of such corrective action.
PROFUSE SOLUTIONS INC may also terminate a User's access to this Site or the Services found at this Site if PROFUSE SOLUTIONS INC has reason to believe the User is a repeat offender. If PROFUSE SOLUTIONS INC terminates your access to this Site or the Services found at this Site, PROFUSE SOLUTIONS INC may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
PROFUSE SOLUTIONS INC reserves the rights to terminate, suspend, and/or refuse service to anyone at any time for violating any terms of the Terms of Service.
5.3 Disclosure Rights To comply with applicable laws and lawful governmental requests, to protect PROFUSE SOLUTIONS INC’S systems and customers, or to ensure the integrity and operation of PROFUSE SOLUTIONS INC’S business and systems, PROFUSE SOLUTIONS INC may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on PROFUSE SOLUTIONS INC’S servers and systems. PROFUSE SOLUTIONS INC also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
6.1. Your License Grant to PROFUSE SOLUTIONS INC You hereby grant to PROFUSE SOLUTIONS INC a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to PROFUSE SOLUTIONS INC a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
6.2 PROFUSE SOLUTIONS INC Materials and Intellectual Property All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by PROFUSE SOLUTIONS INC or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by PROFUSE SOLUTIONS INC to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of PROFUSE SOLUTIONS INC or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by PROFUSE SOLUTIONS INC during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
6.3 Trademarks You hereby grant to PROFUSE SOLUTIONS INC a limited right to use your trademarks, if any, for the limited purpose of permitting PROFUSE SOLUTIONS INC to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.
PROFUSE SOLUTIONS INC. will strive to provide the hardware and services consistent to the industry’s highest standard. YOU SPECIFICALLY AKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES OFFERED BY PROFUSE SOLUTIONS INC SHALL BE AT YOUR OWN RISK AND THAT THE SERVICES ARE PROVIDED “AS IS”,”AS AVAILABLE” AND”WITH ALL FAULTS”. PROFUSE SOLUTIONS INC.’S OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITEDTO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROFUSE AND IT’S OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPREESENTATION OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND PROFUSE SOLUTIONS INC ASSUMES NO LIABLITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY PROFUSE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIAVE) WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
7.1 Customer and/or Third Party Acts PROFUSE SOLUTIONS INC is not responsible in any manner for any nonconforming Services to the extent caused by you or your customers. In addition, PROFUSE SOLUTIONS INC is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond PROFUSE SOLUTIONS INC’S reasonable control.
7.2. No Express or Implied Warranty ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY PROFUSE SOLUTIONS INC UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY FACT OR LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT PROFUSE SOLUTIONS INC EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH PROFUSE SOLUTIONS INC’S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. PROFUSE SOLUTIONS INC DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED THIS AGREEMENT, PROFUSE SOLUTIONS INC DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT.
7.3 Your Warranties and Representations to PROFUSE SOLUTIONS INC You warrant, represent, and covenant to PROFUSE SOLUTIONS INC that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content and/or any software that you install or provide does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
8.1. Limitations ON EVENT SHALL PROFUSE SOLUTIONS INC HAVE ANY LIABILITY FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO PROFUSE SOLUTIONS INC, DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. PROFUSE SOLUTIONS INC SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF PROFUSE SOLUTIONS INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY EVENT, THE LIABILITY OF PROFUSE SOLUTIONS INC TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO PROFUSE SOLUTIONS INC BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY PROFUSE SOLUTIONS INC UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE PROFUSE SOLUTIONS INC FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM EXCESS OF THE LIMITATION STATED IN THIS SECTIO6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
8.2. Interruption of Service You hereby acknowledge and agree that PROFUSE SOLUTIONS INC will not be liable for any temporary delay, outages or interruptions of the Services. Further, PROFUSE SOLUTIONS INC shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, packet loss, server crashes, communications or third-party supplier failure).
8.3. Maintenance You hereby acknowledge and agree that PROFUSE SOLUTIONS INC reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. PROFUSE SOLUTIONS INC will use reasonable efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.
8.4 Limitation of Liability
IN NO EVENT SHALL PROFUSE SOLUTIONS INC, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (envy) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT PROFUSE SOLUTIONS INC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CLAIMS, ACTIONS, CONTROVERSIES OR DISPUTES ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES FOUND AT THIS SITE MUST BE SETTLED BY BINDING ARBITRATION IN THE STATE OF CALIFORNIA. THE ARBITRATION SHALL BE CONDUCTED ON A CONFIDENTIAL BASIS PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY ARBITRATION ARISING OUT OF YOUR CLAIMS, ACTIONS, CONTROVERSIES SHALL COMMENCE WITHIN ONE (1) CALENDAR YEAR OF THE OCCURRENCE OF THE ALLEGED CLAIM, ACTION, CONTROVERSY, OR DISPUTE. OTHERWISE YOUR CLAIMS, ACTIONS, CONTROVERSIES SHALL BE PERMANENTLY WAIVED.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL PROFUSE SOLUTIONS INC’S TOTAL AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
8.5 Liability for Other Materials
PROFUSE SOLUTIONS INC shall take no responsibility for the contents, materials, or otherwise links to such contents or materials hosted on its servers input by individuals including but not limited to you, your agents, and anyone/entity acting on your behalf.
You will defend, indemnify and hold harmless PROFUSE SOLUTIONS INC and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnities") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnities by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your use of the Services, including any improper or illegal uses; (iv) any claim by an agent or former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by PROFUSE SOLUTIONS INC; or (v) any claim relating to your services or products, or your installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).
10.1 Confidentiality The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.
10.2. Notices All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.
10.3. Choice of Law and Forum SUBSECTION 8.4 OF THIS AGREEMENT IS INCORPORATED HERETO IN ITS ENTIRETY UNDER THIS SUBSETION. THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF TEXAS.
10.4. Entire Agreement This agreement includes in full an agreement each and every kind between PROFUSE SOLUTIONS INC and User concerning the services and all preliminary negotiations and agreement of any kind or nature are merged in this agreement. No oral agreement or implied covenants or implied covenants made in connection with this agreement shall be enforceable unless otherwise included in this agreement. This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.
10.5. Assignments You may not transfer or assign your rights, duties, or obligations under this Agreement without PROFUSE SOLUTIONS INC’S prior written consent. PROFUSE SOLUTIONS INC may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.
10.6. No Waiver PROFUSE SOLUTIONS INC’S waiver to enforce the strict performance of any provision of this Agreement will not constitute a waiver of PROFUSE SOLUTIONS INC’S right to subsequently enforce such provision or any other provisions under this Agreement.
10.7. Severability If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications. Partial invalidity does not cause the entire agreement to be unenforceable.
10.8. Survival All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
10.9. Modification PROFUSE SOLUTIONS INC reserves the right to add, delete, or modify any provision of its Terms and Condition, Acceptable Usage Policy at any time without notice