Last Modified: December 6, 2019
1. The Services
a. Provision of Services. You may use the Services only in compliance with these Terms. You may use the Services only if you have the power to form a contract with us and are not barred under any applicable laws from doing so. You may use the Services to: provide us with files, information, folders, and other data ("Your Data"); provide others with Your Data; and send communications. Except as otherwise provided, these Terms do not alter the ownership of Your Data. If you share Your Data ("Your Shared Data") using the Services, we may retain some or all of Your Shared Data in order to provision the Services for other users of the Services regardless of your continued use of the Services.
b. Our Usage. We may need your permission to provision the Services on your behalf. You hereby grant us, our vendors, contractors, and assigns, the necessary permissions needed to provision the Services on your behalf, and to meet our obligations to others under these Terms.
c. Modifications to the Services. We may update the Services from time to time. We may stop, suspend, or modify the Services at any time without prior notice to you. We may remove any content from our Services at our sole discretion.
d. Limitations on Use of Services. We may impose limitations on bandwidth usage for the Services.
2. Your Account.
a. Accounts. Your account may be an individual account (an "Individual Account") or an account created as part of an organization's account with us (an "Associated Account"). An Individual Account may be subsequently associated with an organization's account. Upon subsequent association, the organization shall have access to Your Data contained in such an account. Once completed, such association cannot be reversed.
d. Corporate Accounts. You are allowed one account per Business Location in the Free Account. If your Business Location needs more than one user, per these terms, you will need to upgrade your Account to the appropriate Subscription Plan Level to accommodate the number of users you need. If your Business has multiple locations, such as a Franchise, then your Corporate Office should have one Account, and each location could have their own Account. Creating multiple accounts to accommodate multiple users for the same Business Location is a violation of these terms.
c. Administrator Control. An organization may designate one or more administrators which have the ability to access, disclose, restrict, or remove Your Data from Associated Accounts associated with the organization. Administrators may also have the ability to monitor, restrict, or terminate access to all or part of an Associated Account or an organization's account. Associated Accounts may not be dissociated from the associated organization.
3. Your Responsibilities.
b. Organization Administration of the Services. An organization may specify individuals as "Administrators" through the administrative console. Our responsibilities do not extend to the internal management or administration of the Services for organizations.
c. Unauthorized Use & Access. You will prevent unauthorized use of the Services and terminate any unauthorized use of the Services. The Services are not intended for use by individuals under the age of 13. You will promptly notify us of any unauthorized use of, or access to, the Services.
d. Restricted Uses. You will not (i) sell, resell, or lease the Services or (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury. You are solely responsible for any applicable vertical or industry-specific regulation compliance.
e. Third Party Requests.
i. "Third Party Request" means a request from a third party for records relating to a your use of the Services. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent permitting a disclosure.
ii. You are responsible for responding to Third Party Requests via your own access to information. You will seek to obtain information required to respond to Third Party Requests and will contact us only if it cannot obtain such information despite diligent efforts.
iii. We will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to:
(A) promptly notify you of our receipt of a Third Party Request;
(B) comply, at your expense, with your commercially reasonable requests regarding its efforts to oppose a Third Party Request; and
(C) provide you with information required to respond to the Third Party Request and, at your expense, support or backup export service fees may be applied. If you fail to promptly respond to any Third Party Request, then we may, but will not be obligated to do so.
f. Data Responsibilities. You may not upload spyware or any other malicious software to the Service. You are responsible for maintaining and protecting all Your Data. We will not be liable for any loss or corruption of Your Data, or for any costs or expenses associated with backing up or restoring any of Your Data.
g. Account Security. You are responsible for safeguarding the password that you use to access the Services, and agree not to disclose your password to any third party. You are responsible for any activity using your Account, whether or not you authorized that activity. You should immediately notify us of any unauthorized use of your account.
h. Communication and Contact with Third Parties using ProfileGorilla. You are responsible for ensuring you have the permission of any third party before you use the ProfileGorilla system to initiate contact with that third party. You will not use the ProfileGorilla system to send out prospecting emails looking to engage in a vendor or client relationship without the express permission of every third party to contact them for this purpose.
We respect the intellectual property rights of others and expect you to do so as well. We will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to us. Such notices should be reported using our DMCA Policy. We reserve the right to delete or disable content alleged to be infringing and to terminate repeat infringers.
Organizations will, at its own expense, respond to questions and complaints from individuals utilizing the Services in conjunction with Associated Accounts. Upgraded support is available if purchased separately.
a. Of Accounts. If a you (i) violate these Terms; (ii) use the Services in a manner resulting in excessive support requests; or (iii) use the Services in a manner that we believe will cause liability, we may request that you suspend or terminate your use of the Services. If you fails to promptly suspend or terminate your use of the Services, we may do so. We may, without prior notice, suspend or terminate an Individual Account, an Associated Account, or an organization's account.
b. Security Emergencies. Notwithstanding anything in these Terms, if there is a Security Emergency, we may, without prior notice, automatically suspend some or all of the Services. "Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other use of the Services, or the infrastructure used to provide the Services; or (ii) unauthorized third party access to the Services.
7. Proprietary Rights.
a. Reservation of Rights. You are solely responsible and claim to have appropriate intellectual property rights and permissions to all Your Data. You are solely responsible for your conduct, the content of Your Data, and your communications with others while using the Services These Terms does not grant you any intellectual property rights in the Services or any rights to use our trademarks, logos, domain names, or other brand features.
b. Your Data Storage. We will take commercially reasonable efforts to store Your Data in order to provide the Services to you. You acknowledge that we are under no obligation to guarantee the integrity of Your Data.
c. Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Data; and (b) you have all rights in Your Data necessary to grant the rights contemplated by these Terms.
d. Services License. We, our affiliates, and/or our licensors own and reserve all right, title, and interest in and to the Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following: access and use the Services solely in accordance with these Terms. You obtain no rights under these Terms from us, other users of the Services, or our licensors to the Services, including any intellectual property rights related thereto or therein.
e. License Restrictions. You may not use the Services in any manner or for any purpose other than as expressly permitted by these Terms. You may not attempt to: (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services; (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services; (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; or (d) resell or sublicense the Services. All licenses granted to you by these Terms are conditional on your continued compliance with these Terms, and will immediately and automatically terminate if you do not comply with any term or condition of these Terms. During your usage of the Services and after such usage, you will not assert, nor will you authorize, assist, or encourage any third-party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding the Services.
f. Suggestions. If you provide any Suggestions to us, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
g. Customer List. We may include your name, logo, or other identifying symbol word or mark in lists of our customers.
8. Third Party Services.
If you use any third-party service with the Services, (a) the service may access or use Your Data; (b) we will not be responsible for any act or omission of the third party, including the third party's use of Your Data; and (c) we do not warrant or support any service provided by the third party.
THE SERVICES ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THESE TERMS, WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT. WE MAKE NO REPRESENTATION ABOUT ANY CONTENT OR INFORMATION ACCESSED OR OTHERWISE PROVIDED BY THE SERVICES. We are not responsible for the accuracy, completeness, appropriateness, or legality of files, notifications, communications, user posts, or any other information in or from an Individual Account, an Associate Account, an organization account, or any other part of the Services. We have no responsibility or liability for the deletion or failure to store any information.
10. Fees & Payment.
a. Fees. You will pay, and hereby authorize use to charge, via your selected payment method, all applicable fees. Fees are nonrefundable except as required by law. You are responsible for providing complete and accurate billing and contact information to us. We may suspend or terminate the Services if fees are 30 days past due.
b. Auto Renewals and Trials. IF YOUR ACCOUNT IS SET TO AUTO RENEWAL, OR IS IN A TRIAL PERIOD, WE MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL, OR FOR THE RENEWAL, UNLESS YOU NOTIFY US IN WRITING THAT YOU WANT TO CANCEL OR DISABLE AUTO RENEWAL. We may revise Service rates by providing you at least 30 days notice prior to the next charge.
c. Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You are responsible for all taxes.
11. Term & Termination.
a. Term. These Terms will remain in effect until your subscription to the Services expires or terminates, or until these Terms are terminated.
b. Termination for Breach. We may suspend performance or terminate this agreement if: (i) you are in material breach of the Agreement and fail to cure that breach within 30 days after receipt of written notice; or (ii) you cease business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Breaches committed by individuals utilizing the Services via an Associated Account are the responsibility of the organization associated with the Associated Account. Such breaches are imputed to the organization. We reserve the right to suspend or terminate our agreement with the organization, including terminating its Associated Accounts, if an Associated Account is in breach of these Terms.
c. Termination at Will. You may terminate this agreement at any time by disabling your account via the administrative console.
d. Effect of Termination. If this agreement terminates: (i) the rights granted by us to you will cease immediately, except as set forth in this section; (ii) we may provide you access to your Account at then-current rates so that you may export Your Data; and (iii) we may delete any data relating to your account. The following sections will survive expiration or termination of these Terms: 2. Your Account; 3(e). Third Party Requests; 4. Copyright; 7. Proprietary Rights; 10. Disclaimers; 11. Fees & Payment, 12(c). Termination at Will; 12(d). Effect of Termination; 13. Indemnification; 14. Limitation of Liability; and 15. General.
a. General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to any third-party claim concerning: (a) your use of the Services (including any activities under your MNS account and use by your employees and personnel); (b) breach of these Terms or violation of applicable law by you or any End User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third-party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys' fees, as well as our employees' and contractors' time and materials spent responding to such subpoena or other compulsory legal order or process at our then-current hourly rates.
b. Process. We will promptly notify you of any claim subject to Section 9.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
13. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT WE WERE WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (B) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES MORE THAN THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO US FOR THE PAST THREE MONTHS OF THE SERVICES IN QUESTION. Some states do not allow the types of limitations in this paragraph, so they may not apply to you.
a. Modification. We may revise these Terms from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material, we will notify you (for example to the email address associated with the applicable account). Other revisions may be posted to our website and you are responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If you do not agree to the revised terms, you may cancel the Services. If you do not agree to the revised terms, you must stop using the Services.
c. Governing Law. THESE TERMS AND SERVICES WILL BE GOVERNED BY FLORIDA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF DUVAL COUNTY, FLORIDA, AND THE PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE.
d. Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect.
e. Notice. Notices to us must be in writing and sent via first class, airmail, or overnight courier and are deemed given when received. Notices to you may be sent to the applicable account email address, and are deemed given when sent. Notices to us must be sent to: ProfileGorilla, 10175 Fortune Parkway, Suite 604, Jacksonville, FL 32256.
f. Waiver. A waiver of any default is not a waiver of any subsequent default.
g. Assignment. You may not assign or transfer any part of these Terms without our written consent.
h. No Agency. The parties are not legal partners or agents, but are independent contractors.
i. Force Majeure. Neither ProfileGorilla nor you will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
j. No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms.
k. Export Restrictions. The export and re-export of data via the Services may be controlled by the United States Export Administration Regulations.
ProfileGorilla DMCA Policy
ProfileGorilla ("We") respects the intellectual property rights of others and expect our users to do the same. In accordance with the Digital Millennium Copyright Act of 1998 ("DMCA"), we will respond expeditiously to claims of copyright infringement committed using our services and/or our website if such claims are reported to our designated copyright agent, identified below.
If you believe any material on the Services infringes upon any copyright that you own or control, you may notify us as set forth below.
Procedure for Making Copyright Infringement Claims:
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and it is accessible on this Website, you may notify our copyright agent, as set forth in the Digital Millennium Copyright Act of 1998. To be effective under the DMCA, a notification of claimed infringement must be a written communication provided to ProfileGorilla's designated agent that includes substantially the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit ProfileGorilla to locate the material.
Information reasonably sufficient to permit ProfileGorilla to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted as a written notification to the following Designated Agent of ProfileGorilla:
Name of Agent Designated to Receive Notification of Claimed Infringement: Timothy Gillis, Esq.
Address of Designated Agent: 1022 Park Street, Suite 308 Jacksonville, FL 32204
Attn: Timothy Gillis, Esq
Telephone Number of Designated Agent: (904) 899-9950
Email Address of Designated Agent: TGillis@shutts.com
PLEASE NOTE THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
NOTE: This information is provided exclusively for notifying us that your copyrighted material(s) might have been infringed. Any other inquiries, including technical support requests, billing questions, reports of email abuse and third party reports of piracy, will not receive a response through this process.