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PROFORMATIVE USER AGREEMENT AND TERMS OF SERVICES

This is a Legally Binding Agreement

This PROFORMATIVE User Agreement was initially adopted April 1, 2009.

By accessing, viewing, downloading or otherwise using the
PROFORMATIVE™ website or any webpage or feature available through Proformative, any information provided as part of the Proformative services, or any related emails or services (hereinafter collectively “Proformative” or the “Service”), or by clicking “Join Proformative” during the registration process, you conclude a legally binding agreement with Proformative, Inc. (“we”) based on the terms of this Proformative User Agreement (“Agreement”) and become a Proformative user (“User”). If you are using Proformative on behalf of a company or other legal entity, such entity should have a separate agreement with Proformative, but you are nevertheless individually bound by this Agreement. If you do not want to be bound to this Agreement, do NOT join Proformative as a registered user and do not access, view, download or otherwise use any Proformative webpage, information or services whether as a registered or an unregistered user.

Please read this Agreement carefully. By becoming a User, you acknowledge that you have read and understood the terms and conditions of this User Agreement and that you agree to be bound by all of its provisions.

We may modify, replace, refuse access to, suspend or discontinue Proformative, partially or entirely, or to charge and modify terms of this User Agreement or any other terms concerning use of Proformative at any time and from time to time, without notice in Proformative’s sole discretion. All of these changes shall be effective upon their posting on our site or by email communication to you. We reserve all rights not expressly granted to you under this User Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in Proformative and all related items.

1. Your Obligations — What You Must Do

Comply with laws and this Agreement: You must comply with this Agreement as it may be amended from time to time, Proformative’s Privacy Policy, Community Conduct Policy, Legal Disclaimer, Community Guidelines, Refund Policy, Event Registration Policy, any notices provided by Proformative from time to time, and all applicable laws.

Proformative is an online interactive computer service which provides a platform to enable you to facilitate your professional education and networking goals. You assume all risk in providing Content (as hereafter defined), and in relying on any Content. Proformative MAY OR MAY not monitor the Content, and makes no representations or warranties concerning the Content including, without limitation, the accuracy or legal sufficiency thereof, or ProformaTIVe’s compliance with any requirements that may be imposed on you or third parties by law or otherwise concerning any Content you provide or review.

Control your submissions: Prior to joining Proformative, you must consider and decide the extent to which you wish to reveal information about yourself to Proformative and the community of Proformative Users. You must not communicate to Proformative or its Users any information the dissemination of which could be harmful to you.

Proformative exercises no control over any Content you or others submit while using Proformative. Proformative has no obligation to verify the identity of any Users when they are connected to the site, to supervise the Content which has been provided by Users, or to remove any Content for any reason. No actions by Proformative in responding to any User communications concerning Content, or editing or removing any Content, shall give rise to any obligation of Proformative concerning any Content. Our current procedure related to personally identifiable information collected through Proformative is contained in our Privacy Policy and we may update our policies and procedures from time to time at our sole discretion. Should you believe that someone is misusing or otherwise appropriating your information, you must immediately inform Proformative.

Do not rely on this site for business, professional or career decisions: Although Proformative provides for person-to-person and business-to-person knowledge exchange via online discussions, webinars, training courses, white papers and more, such information should not be relied upon for making business, professional, career or any other decision. Your specific circumstances will not be known by the person that is providing insights on the site and you may not know them. In any case, the information on this site is simply one form of data you can gather in any decision process, and you should get direct, professional help to solve your issues and not rely on content you read or viewed on this website. Proformative and all of its content providers will not be held responsible should you make decisions based on the information you gather on this website.

License and warrant your submissions: You own the information you provide Proformative under
this Agreement, and may request its deletion at any time, unless you have shared
information or content with others and they have not deleted it, or it was
copied or stored by other users. Proformative can not control search engines (such as Google) and thus may not be able to remove your content from search engines or any other websites that may collect and archive content from websites such as Proformative.com.

You do not have to submit anything to us, but if you choose to submit anything including, without limitation, any User Generated content, ideas, concepts, techniques and data (“Content”), you grant, and hereby represent that you have all legal right and power to grant, to Proformative and its successors and assigns (collectively, “us”) an irrevocable, perpetual, nonexclusive, transferable, fully paid, royalty-free, worldwide license (with the right to sublicense) to store, use, copy, publish, transmit using any form of communication or display, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), prepare derivative works of, in corporate into other works, and distribute, such Content for any purpose at any time, commercial, advertising, or otherwise, on or in connection with the Proformative website or the promotion thereof, and to grant and authorize sublicenses of the foregoing. You specifically waive any residual or moral rights you may have in any Content you provide including, without limitation, any rights of attribution or integrity. By submitting any information to us, you represent and warrant that your submission is accurate, is not confidential, and is not in violation of any contractual restrictions or other third party rights. You further agree to inform Proformative in the event that any such information has changed since your registration with Proformative and, if appropriate, you agree to make such modifications yourself to your profile. This license survives, among other things, your removal of your Content from Proformative.

Keep your password secure: Keep your password confidential, do not use other Users’ accounts and do not let others use your account; you are responsible for anything that happens through your account — until you notify us of a breach (service@proformative.com), close down your account or prove that your account security was compromised due to a fault of our systems. You are prohibited from selling, trading or otherwise transferring your Proformative account or any information therein to another party or charging anyone for access to any portion of Proformative, or any information therein.

Service Eligibility. You represent and warrant that you (a) are not under the age of 18; (b) have not previously been suspended or removed from Proformative; (c) are not a direct competitor of Proformative; (d) do not have more than one Proformative account at any given time; and (e) have full power and authority to enter into this Agreement and in doing so will not violate any other agreement to which you are a party.

Pay: If you purchase or subscribe to any products or services that we offer for a charge, you will pay the applicable fees (including, without limitation, monthly fees for premium accounts) as they become due plus all related taxes and reimburse us for any collection costs including, without limitation, reasonable attorneys fees and court costs and interest for any overdue amounts.

Indemnify us: You hereby indemnify us and agree to hold us, and our owners, managers, employees and agents, and their respective successors and assigns, harmless from any and all damages, losses and costs (including, but not limited to, reasonable attorneys’ fees) related to third party claims, charges or investigations, caused by (a) your failure to comply with this Agreement, including, without limitation, your submission of content that violates third party rights or applicable laws and any breach of your representations and warranties contained in this Agreement, (b) any Content you submit to Proformative, or anyone else on or through the Proformative site or your reliance for any purpose of any Content posted on the Proformative website, or (c) any activity in which you engage on or through Proformative.

Notify us of acts contrary to this Agreement: If you believe that you are obligated to act contrary to this Agreement under any mandatory laws, you shall provide to us, 30 days before you act contrary to this Agreement, written notice describing the action you propose to take and the laws or other basis on which you believe such action is obligated, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation.

Forums/Blogs/Chat Rooms: Proformative may include various forums, blogs, and chat rooms where you can post your observations and comments on designated topics. Proformative cannot guarantee that other Users will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on the Service. PROFORMATIVE IS NOT RESPONSIBLE FOR ANY USER’S USE, MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION POSTED IN ANY FORUMS, BLOGS AND CHAT ROOMS INCLUDING, WITHOUT LIMITATION, YOUR USE, MISUSE, OR MISAPPROPROPRIATION, OR ANY INFORMATION USER MAY PROVIDE TO ANY SERVICE PROVIDER OR OTHER PROFORMATIVE USER.

Export Control: Your use of Proformative site, software, and services is subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department's Office of Foreign Assets Control. You have no right to copy, transfer or otherwise dispose of any part of the Service. You shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any software or service that is part of the Service to any end-user without the prior written consent of Proformative and without obtaining any required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving US origin products, including services or software.

Privacy: You are subject to, and should carefully read, our Privacy Policy before deciding to become a User of Proformative. Please note that certain information, statements, data and content (such as photographs) which you may choose to provide might, or are likely to, reveal your gender, ethnic origin, nationality, religion and/or sexual orientation, and that you are providing all such information, statements, data and content in full acknowledgment thereof and under your sole responsibility. By providing such information to us, all of which is optional, you are hereby expressly giving your informed consent to the processing by us of such “sensitive” data.

2. What You May Do

On the condition that you continue to comply with all your obligations under this Agreement, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable right to access, through a generally available web browser (but not any scraping, spidering, crawling or other technology or specialist software used to harvest data) to view information that we provide or is provided on Proformative webpages as we intend such information to be used, and only in accordance with this User Agreement, and any additional specific terms of use or disclaimers that are posted on the Proformative website or are otherwise made available to you. You may submit information to us at your own risk of loss and subject to your indemnification obligations under this Agreement. We grant you no other rights, implied or otherwise, and reserve all rights not expressly granted under this User Agreement.

3. What You May Not Do

As a condition to access Proformative, you agree you may not do any of the following:

    • duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, otherwise transfer or commercially exploit Proformative (excluding content posted by you) except as permitted in this User Agreement;
    • reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide Proformative, or any part thereof;
    • include information in your profile or in Status Updates which reveals your identity beyond such information as is specifically required by forms on the Proformative website such as an email address, phone number or address;
    • utilize information, content or any data you view on and/or obtain from Proformative to provide any service that is deemed by Proformative, in Proformative’s sole discretion, to be competitive against Proformative;
    • share your Proformative login or any Proformative course materials whatsoever, including but not limited to: course videos, pdfs, other electronic documents, sample documents, etc., with anyone else ever;
    • imply or state, directly or indirectly, that you are affiliated with or endorsed by Proformative unless you have entered in to a written agreement with Proformative, Inc. which may expressly authorize you to do so and then only to the extent so authorized;
    • use intellectual property of Proformative, or any User Content, to adapt, modify or create derivative works based on such intellectual property;
    • rent, lease, loan, trade, sell/re-sell access to Proformative or any information therein, or the equivalent, in whole or part;
    • deep-link to the Site for any purpose, (i.e. including a link to a Proformative web page other than Proformative’s home page) unless expressly authorized in writing by Proformative with the sole exception of publicly available discussion forum pages on the site;
    • access, reload or “refresh” or make any other request to transactional servers more than once during any three second interval;
    • use automated methods to add contacts, send messages or other permitted activities;
    • access, via automated or manual means or processes, Proformative for purposes of monitoring its availability, performance or functionality or for any competitive purpose;
    • engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of Proformative’s website;
    • attempt to or actually access Proformative by any means other than through the interface provided by Proformative;
    • attempt to or actually override any security component included in or underlying Proformative;
    • engage in any action that interferes with the proper operation of, or places an unreasonable load on, Proformative infrastructure, including but not limited to unsolicited communications, attempts to gain unauthorized access, or transmission or activation of computer viruses;
    • remove any copyright, trademark or other proprietary rights notices contained in or on Proformative, including those of Proformative or any of its licensors;
    • remove, cover or otherwise obscure any form of advertisement included as part of Proformative;
    • use any information obtained from Proformative to harass, abuse or harm another person;
    • collect, use or transfer any information, including but not limited to, personally identifiable information obtained from Proformative except as expressly permitted in the User Agreement or the owner of such information may expressly permit;
    • interfere with or disrupt Proformative, including but not limited to any servers or networks connected to Proformative, or disobey any requirements, procedures, policies or regulations of networks connected to the Proformative;
    • upload a cartoon, symbol, drawing or any content other than a photograph of yourself in your profile photo;
    • use or attempt to use another’s account without authorization from the Company, or create a false identity on Proformative;
    • infringe or use Proformative’s brand, logos and/or trademarks, including, without limitation, using the word “Proformative” in any business name, email, or URL or including Proformative’s trademarks and logos on any website without authorization; or
    • upload, post, email, transmit or otherwise make available or initiate any content that:
      • falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym, or misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present;
      • is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable;
      • includes telephone numbers, email addresses, street addresses or any personally identifiable information for which there is not a field provided by Proformative;
      • includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
      • infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights;
      • includes any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or request. This prohibition includes but is not limited to (a) using Proformative invitations to send messages to people who don’t know you or who are unlikely to recognize you as a known contact; (b) using Proformative to connect to people who don’t know you and then sending unsolicited promotional messages to those direct connections without their permission; and (c) sending messages to distribution lists, newsgroup aliases, or group aliases.
      • contains software viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of Proformative or any User of Proformative;
      • forges headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through the Services; and/or
      • adds to a content field content that is not intended for such field (i.e. submitting a telephone number in the “title” or any other field).

    4. Proformative’s Rights and Obligations

    The purpose of Proformative is to provide a platform, or online interactive computer service, for facilitating professional knowledge exchange. It is intended that Users only connect via the site to other Users who they currently know and seek to further develop a professional relationship. Any other use of Proformative (such as seeking to connect to someone a User does not know or to use Proformative as a means of generating revenue) is strictly prohibited and is a violation of this Agreement.

    We allow you to access Proformative as it may exist and be available on any given day subject to this User Agreement. Proformative may update, improve, discontinue and change its services and offerings, at any time and from time to time, in Proformative’s sole discretion. We have no other obligations, except as expressly stated in this Agreement.

    Proformative reserves the right to withhold, remove and or discard any Content available as part of your account, or contained or reproduced on your Mini-site or other portion of the Proformative website dedicated to you, if any, or otherwise contained or reproduced on the Proformative website, with or without notice at any time and from time to time, in Proformative’s sole discretion. For avoidance of doubt, Proformative has no obligation to store, maintain or provide you a copy of any Content that you or other Users provide when using the Services.

    You authorize and direct Proformative to make such copies
    of any Content you provide as we deem necessary in order to facilitate posting
    and storing content you post to the Proformative website. You may remove files you have uploaded (such as MSExcel or MSWord files and the like) to the website at any time, or request that we remove them. Any discussions or comments you have created or others have created in discussions or comments to you or related to discussions or comments you have posted to the Proformative website, however, will remain. If you choose to remove your uploaded Content, any license you granted to Proformative will NOT expire. Proformative can not guarantee that search engines or other sites that may have cataloged and saved Content you provide will remove that content from their sites.

    Proformative reserves the right to close, suspend or otherwise restrict access to any User account at any time and from time to time at Proformative’s sole discretion for any reason or for no reason and without prior notice.

    You acknowledge and agree that we may send you important information and notices regarding Proformative by posting on the Proformative website, by email or through other means. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about Proformative, and that you allow Proformative to update you profile data using third party data sources so that we may keep your professional profile information current. You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to , among other things: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims of a violation of the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Proformative, its Users and the public. Further, you acknowledge and agree that Proformative may use information you have shared with us, including but not limited to your title, industry, geography and other User-provided information, to provide you with targeted ads that you may find more pertinent than untargeted ads.

    By registering for any Event, or downloading any Proformative or sponsor-created content, including but not limited to white papers, videos, customer testimonials, e-books, on-demand webinars, product data sheet, case studies, infographics, analyst reports, event recordings and the like (collectively the "Sponsor Content") on the Proformative Site, you agree that Proformative may provide to the Event or Sponsor Content owner or sponsor, the information you provide or have in the past provided as part of your registration for the site or the content you are downloading or have downloaded in the past, such as your name, contact information, company name, etc. You further agree that Proformative has no responsibility for the use to which your information is put by the Sponsor Content owner or sponsor, and that you agree to this exception to Proformative's privacy policy. If you are not a member of Proformative, this will also register you as a member and you will need to agree to our User Agreement. If you do not agree to the foregoing, please do not register for the Event or download the Sponsor Content.

    Proformative and its Users may include or automatically produce links to third party web sites (“Third Party Sites”). Proformative is not responsible for and does not endorse any advertising, products or other materials or content on or available from such web sites or resources. Proformative may also include articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the "Third Party Applications, Software or Content"). If you decide to leave Proformative and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering procedures, of any site to which you navigate from Proformative or relating to any applications you use or install from the site.

    You are solely responsible for your interactions with other Users. Proformative reserves the right, but has no obligation, to monitor disputes between you and other Users and to terminate your account if Proformative determines, in its sole discretion, that doing so is prudent.

    Without prior notice Proformative may limit the number of connections you may have to other Users and prohibit you from contacting other Users through use of the Services.

    5. Disclaimer

    SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. >

    PROFORMATIVE AND ALL CONTENT PROVIDED ON PROFORMATIVE IS PROVIDED “AS IS”. DO NOT RELY ON PROFORMATIVE, ANY INFORMATION THEREIN, OR ITS CONTINUATION. PROFORMATIVE DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF CONDUCT OR TRADE PRACTICE.

    IF YOU ARE DISSATISFIED OR HARMED BY PROFORMATIVE OR ANYTHING RELATED TO PROFORMATIVE, YOU MAY LEAVE PROFORMATIVE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7 HEREOF AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.

    PROFORMATIVE IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES, FOR THE DELIVERY OF ANY MESSAGES, POSTING OF ANSWERS, OR TRANSMISSION OF, ANY CONTENT SENT OR DISPLAYED THROUGH PROFORMATIVE TO ANYONE. IN ADDITION, PROFORMATIVE NEITHER WARRANTS NOR REPRESENTS THAT YOUR USE OF PROFORMATIVE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.

    PROFORMATIVE DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS OF THE COMMUNITY. THEREFORE, PROFORMATIVE DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.

    PROFORMATIVE DOES NOT GUARANTEE THAT THE SERVICES WHICH IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, OPERATION OF PROFORMATIVE MAY BE MOMENTARILY INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR TECHNICAL IMPROVEMENTS. PROFORMATIVE DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, PROFORMATIVE DISCLAIMS ALL LIABILITY FOR ANY MISFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE PROFORMATIVE SITE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES LINKED TO THE INTERNET, THE INTERNET SERVICE PROVIDER, OR ANY OTHER REASON UNRELATED TO PROFORMATIVE.

    THE VIEWS AND OPINIONS EXPRESSED ON PROFORMATIVE'S SITE DO NOT REPRESENT THE VIEWS OF PROFORMATIVE, INC., ITS OFFICERS, DIRECTORS, EMPLOYEES OR OTHER RELATED PARTIES AND PROFORMATIVE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF ITS USERS VIEWS, OPINIONS AND ALL OTHER SITE CONTENT.

    6. Limitation of Liability

    SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.

    NEITHER PROFORMATIVE, LLC NOR ANY OF ITS AFFILIATES, EMPLOYEES, OWNERS, OR MANAGERS (“PROFORMATIVE AFFILIATES”) SHALL BE LIABLE FOR ANY DAMAGES TO YOU (1) IN EXCESS OF $100 IN THE AGGREGATE FOR ANY AND ALL CLAIMS, OR (2) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, PROFIT, REVENUE OR DATA TO YOU OR ANY THIRD PERSON ARISING FROM YOUR USE OF THE SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF THE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM PROFORMATIVE EVEN IF PROFORMATIVE IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THE PRECEDING SENTENCE SHALL APPLY REGARDLESS OF WHETHER YOU BASE YOUR CLAIM ON CONTRACT, TORT, STATUTE OR ANY OTHER LEGAL THEORY, WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL ALSO APPLY TO ANY PROFESSIONAL-CLIENT COMMUNICATION, RELATIONSHIP, OR REPRESENTATION WITH ANY PROFESSIONAL OR CLIENT IDENTIFIED THROUGH YOUR USE OF ANY SERVICES, OR RELATING TO PROFESSIONAL ADVICE OR INFORMATION YOU RECEIVE, VIEW, ACCESS, OR OTHERWISE OBTAIN VIA ANY SERVICES, AND ANY USE OF OR RELIANCE UPON SAID INFORMATION OR ADVICE IS SOLELY AND ENTIRELY AT YOUR OWN RISK.

    THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR ELEMENTS OF THIS AGREEMENT AND PROFORMATIVE WOULD NOT HAVE PROVIDED THE SERVICE WITHOUT SUCH LIMITATIONS OR DISCLAIMERS.

    7. Termination

    You may terminate this Agreement, for any or no cause, at any time, with written notice to Proformative which shall be effective upon Proformative processing such notice and your cessation of use of Proformative. Proformative may terminate this Agreement for any or no cause, at any time, with or without notice, which shall be effective immediately or as may be specified in the notice. For avoidance of doubt, your access to any Premium Services may be terminated only by Proformative or the party paying for such services.

    In furtherance and without limiting the foregoing, Proformative has adopted a policy of terminating, in appropriate circumstances and at Proformative’s sole discretion, Users who are deemed to be repeat infringers under the United States Copyright Act. Proformative may also at its sole discretion limit access to the Service and/or terminate the memberships of any Users who infringe or who are accused of infringing any intellectual property rights of others, whether or not there is any repeat infringement.

    8. Consequences of Termination

    Upon termination, you lose access to Proformative. The terms of this Agreement shall survive any termination, except Sections 2 and 3 hereof.

    9. California Law and Arbitration

    >Choice of Law and Interpretation: The Agreement and any disputes with us or any Proformative Affiliate arising out of or relating to this Agreement or Proformative (“Disputes”) shall be governed, to the maximum extent permitted by law, by the laws of either the state in which you reside or the state in which you are located when using the Web Site without giving any effect to such state’s principles governing conflicts of laws, excluding conflicts of law principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. The American Law Institute Principles of the Law of Software Contracts shall not be used to interpret any of the provisions of this Agreement.

    Agreement to Arbitrate and Pay Attorneys’ Fees: > Any Disputes shall be resolved by final and binding arbitration under the rules of the American Arbitration Association, to be held in San Jose, California, in English, with a written decision stating and legal reasoning issued by the arbitrator(s) at either party’s request, and with arbitration fees and reasonable attorneys’ fees of both parties to be borne by the party that ultimately loses. At the request of any party, arbitrators, attorneys, parties to the mediation or arbitration, witnesses, experts, court reporters, or other persons present at a mediation or arbitration shall agree in writing to maintain the strict confidentiality of the proceedings.

    Exception from Arbitration Agreement: Subject to Section 10, either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.

    10. General Terms

    Severability: If any provision of this Agreement is found to be invalid or unenforceable under mandatory laws of a particular jurisdiction, such provision shall be interpreted as to give maximum effect to its intended purpose and this shall not affect the validity or enforceability of (a) such provision under the laws of any other jurisdiction, or (b) any other provision of this Agreement.

    Notices: We may notify you via postings on www.Proformative.com, email, or any other communications means to contact information you provide to us. You may also notify us via email at Legal@Proformative.com or
    via mail or courier at Proformative, Inc., Attn: Legal Department, 99 Almaden Blvd. Suite 975, San Jose, CA, 95113, USA; any notices that you provide without compliance with this Section on Notices shall have no legal effect.

    Entire Agreement: You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Service and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.

    Amendments to this Agreement: We reserve the right to modify, supplement or replace the terms of this Agreement, effective upon posting at www.Proformative.com and otherwise notifying you by electronic mail. Any modification shall be effective ten (10) days after such notification. IF YOU DO NOT WANT TO AGREE TO CHANGES TO THIS AGREEMENT, YOU MUST DISCONTINUE USE OF PROFORMATIVE.

    No informal waivers, agreements or representations: Our failure to act with respect to a breach by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by this Agreement, no representations, statements, consents, or waivers by Proformative shall be deemed legally binding on Proformative, unless documented in a physical writing hand signed by a duly appointed officer of Proformative.

    No Injunctive Relief: In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service.

    Assignment and Delegation: You may not assign or delegate any rights or obligations under this Agreement and any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under this Agreement, fully or partially. We may also substitute, effective upon notice to you, any third party that assumes our rights and obligations under this Agreement.

    11. Professional-to-Client Relations

    The Services may from time to time include the ability for you to submit questions to certain types of professionals, including but not limited to attorneys and accountants, and even request that specific professionals respond to your questions. A communications exchange within that aspect of the Services may give rise to a professional-to-client relationship, such as an attorney-client relationship, or representation of limited scope and duration between you (the “client”) and the professional that responds to your submitted question.

    The Professional Members are not employed by Proformative. No such information contained on the Website or provided through the Services, constitutes an endorsement of any particular professional or a guarantee of any personal and professional qualities or characteristics of a professional or any advice or opinion he or she may render. Proformative does not verify nor warrant or guarantee that every individual who holds him or herself out as a professional is in fact registered to provide professional advice in the jurisdictions which he or she may claim.

    This website is not intended to create, and does not create, a professional-to-client relationship including but not limited to attorney-client, auditor-client or any advisor-client relationship, and are not subject to standards or requirements of confidentiality and/or privilege associated therewith, nor does it ensure confidentiality between you and Proformative or between any of its users, and you should not act or rely on any information in this website.

    However, if a professional-to-client relationship does arise through any Services, the scope and duration of any professional-to-client relationship or representation between the Professional Member and client arising through an exchange of communication via the Services is limited by the subject matter and nature of the exchange. The scope of this limited professional-to-client relationship or representation extends only to the substance of the submitted question. The Professional Member is under no duty to further investigate, follow-up, review, pursue, take further action, or to continue to represent the client. The duration of such professional-to-client relationship or representation is presumed to end as soon as the responding Professional Member provides the last answer or follow-up communication in the exchange. You acknowledge and understand that in limited circumstances, Proformative may be required or permitted by law to disclose such communications.

    If an attorney-client relationship does arise through any Services, the scope and duration of any attorney-client relationship or representation between the attorney and client arising through an exchange of communication via the Ask the Expert Service is limited by the subject matter and nature of the exchange. The scope of this limited attorney-client relationship or representation extends only to the substance of the submitted question. The attorney is under no duty to further investigate, follow-up, review, pursue, take further action, or to continue to represent the client. The duration of such attorney-client relationship or representation is presumed to end as soon as the responding attorney provides the last answer or follow-up communication in the exchange.

    As an attorney or any other professional, you agree and understand that any malpractice liability which may result from your use or provision of any Services is your sole responsibility and hereby waive, absolve, indemnify, and release Proformative from any liability, loss, or damage resulting from any malpractice claim arising directly, indirectly, consequentially, or historically from any contact, content, communication, advice, consultation, or representation made using any Services as a conduit. You further agree and understand that in accepting this license, you release, absolve, and indemnify Proformative from responsibility or liability for loss or damage of any kind, including legal or attorney's fees, incurred by you or your clients or prospective clients as a result of any conflict of interest.

     

    Claims Regarding Copyright Infringement

    Each User expressly authorizes Proformative to modify said content in order to conform to the interface or display requirements of the Service or of other communications media as set forth above, and/or to render them compatible with its technical performance or media format in question. These rights are granted throughout the world and for the entire term of this Agreement. The User is prohibited from copying, reproducing or otherwise using the content relating to other Users of Proformative for any purpose other than for those purposes strictly related to use of the Proformative services for personal purposes.

    Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. sec. 512, Proformative, LLC has designated an agent to receive notices of claimed copyright infringement. If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide Proformative, Inc.’s Copyright Agent the following information:

    1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
    2. A description of the copyrighted work that you claim has been infringed;
    3. A description of where the material that you claim is infringing is located on the Site;
    4. Your address, telephone number, and e-mail address;
    5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
    6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

    Proformative, Inc.’s Copyright Agent for Notice of claims of copyright infringement can be reached as follows: by e-mail at >abuse@Proformative.com or by mail at:

    Proformative, Inc.

    ATTN: Copyright Agent

    99 Almaden Blvd. Suite 975, San Jose, CA, 95113, USA

    Upon receipt of the written notification containing the information as outlined in 1 through 6 above:

    1. Proformative, Inc. may remove or disable access to the material that is alleged to be infringing;
    2. Proformative, Inc. may forward the written notification to such alleged infringer; and
    3. Proformative, Inc. may take reasonable steps to promptly notify the alleged infringer that it has removed or disabled access to the material.

    Counter-Notification:

    If the alleged infringer believes that a notice of copyright infringement has been wrongly filed against it and it would like to submit a counter-notification, it may file a Counter-Notification in Response to Claim of Copyright Infringement with Proformative, Inc.’s Copyright Agent.

    To be effective, a Counter-Notification must be a written communication provided to the Proformative, Inc.’s Copyright Agent for Notice that includes the following information:

    1. A physical or electronic signature of the alleged infringer;
    2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
    3. A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
    4. The alleged infringer’s name, address, and telephone number, and a statement that the alleged infringer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the alleged infringer’s address is outside of the United States, for any judicial district in which Proformative, Inc. may be found, and that the alleged infringer will accept service of process from the person who provided notification or an agent of such person.

    Upon receipt of a Counter-Notification containing the information as outlined in 1 through 4 above:

    1. Proformative, Inc. may promptly provide you with a copy of the Counter-Notification;
    2. Proformative, Inc. may inform you that it will replace the removed material or cease disabling access to it within ten (10) business days; and
    3. Proformative, Inc. may replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter-Notification, provided Proformative, Inc.’s Copyright Agent for Notice has not received notice from you that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on Proformative, Inc.’s network or system.

    You may want to seek the advice of independent legal counsel before filing a notification or counter-notification.

    Notice and Procedure for Making Complaints Regarding Content

    To notify Proformative, Inc. of Content that infringes your rights (other than copyright violations in which case please click here) or is otherwise unlawful (“Specified Content”), you must send a notice to the Proformative, Inc. Content Complaint Manager by mail, e-mail, or fax, and provide the following information:

    • Your name, address, telephone number, and e-mail address;
    • A description of the Specified Content that your claim either infringes your rights or is otherwise unlawful, specifying which parts of it you believe infringe your rights, or are unlawful, and which parts you believe should be removed;
    • A description of the exact location of the Specified Content on the Web Site;
    • In the event you believe that the Specified Content infringes your rights, a statement specifying in detail the rights you assert, and why the Specified Content infringes them;
    • (In the event you believe that the Specified Content is otherwise unlawful), a statement specifying in detail which laws you believe are being breached, and why the Specified Content does so;
    • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are damaged by the Specified Content or authorized to act on such person’s behalf; and
    • Your electronic or physical signature (as appropriate).

    When we receive a notice that complies with the above requirements, we will evaluate the information you provided (including, if appropriate, forwarding the notice to, or otherwise contacting the source of the Specified Content), and if appropriate in our judgment, remove or disable access to the Specified Content. In such case, we may notify the source of the Specified Content of your complaint and our action taken. In some cases, if the source of the Specified Content provides us with information indicating that the Specified Content has been removed wrongly, we may reinstate the Specified Content. Our take-down and re-instatement procedures are and remain at our sole discretion.

    You may want to seek the advice of independent legal counsel before filing a notice or responding to a notice filed by someone else.

    Proformative, Inc. Content Complaint Manager

    Contact information for Proformative, LLC’s Content Complaint Manager is as follows:

    E-Mail: abuse@Proformative.com

    Mail:

    Proformative, Inc.

    ATTN: Counsel

    99 Almaden Blvd. Suite 975, San Jose, CA, 95113, USA

    Miscellaneous Provisions

    If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect. Unless otherwise specified herein, this Agreement constitutes the entire agreement between the user and Proformative with respect to the Proformative Web Site and the subject matter hereof and it supersedes all prior and contemporaneous communications and proposals, whether electronic, oral or written, between the user and Proformative with respect to the Proformative Web Site. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this Agreement and all related documents be composed and published in English.

    Proformative, Inc., San Jose, California, USA, April 2, 2009.

    © Proformative, Inc. 2009. All rights reserved

    Proformative is not affiliated with any of Google®, Yahoo®, or MSN®. All trademarks and service marks used in this website are the property of their resepective owners.

    YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY USING PROFORMATIVE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS. By CHECKING THE CHECKBOX THAT SAYS “I have read, understood, and agree to Proformative’s User Agreement, Terms of Use and Privacy Policy” AND THEN clicking on the “CREATE NEW ACCOUNT” button, you acknowledge your acceptance of these terms and conditions and form a binding legal contract with PROFORMATIVE. If you do not accept these terms and conditions, DO NOT CHECK THE CHECKBOX AND DO NOT click on the “CREATE NEW ACCOUNT” button.