Profinetic

1. Who these terms are between, and how they are accepted

These Terms of Service ("Terms") are a contract between Profinetic, LLC, a Florida limited liability company (Florida Division of Corporations document number L26000546152) that provides the service called Profinetic ("Profinetic", "we" or "us"), and the business that uses it ("Customer"). They govern Customer's access to and use of the Profinetic online service (the "Service"). The Service is offered by invitation, to businesses only, and not to consumers for personal, family or household use.

How they are accepted. A person accepts these Terms by ticking the box that agrees to them: when they create an account, when they join an account by invitation, and whenever the Service asks them to, including for a new version under Section 25. A business may also accept them by signing an Order Form that refers to them. Continuing to use the Service is not how a new version is accepted; ticking the box, or signing, is.

Who accepts for the business. A person who accepts these Terms as an Owner of Customer's account, or who signs an Order Form, accepts them for Customer and represents that they are authorized to bind Customer. Every other Authorized User who ticks the box agrees, for themselves, to use the Service only as these Terms allow, including the Acceptable Use Policy in Section 8. They do not bind Customer by doing so, and they take on none of Customer's other obligations personally.

Signed agreements. If Customer and Profinetic have signed a master subscription agreement for the Service, that signed agreement governs instead of these Terms, and nothing a person ticks or accepts in the Service adds to or changes it, except that Section 8 still applies to each person who uses the Service.

2. Definitions

Affiliate: an entity that controls, is controlled by, or is under common control with a party, where "control" means owning more than 50% of its voting interests.
Agreement: these Terms, every Order Form, and the Data Processing Addendum, together.
AI Features: the parts of the Service that use a third-party AI model provider, described in Section 10.
Authorized User: an individual whom Customer, or one of its Affiliates using the Service under Customer's account, allows to use the Service, such as an employee, contractor or agent.
Customer: the business named in the Order Form or, where there is none, the business whose account was set up or is held by the Owner who accepted these Terms.
Customer Data: the business records and other data that Customer or its Authorized Users submit to the Service, or that the Service retrieves from Third-Party Services at Customer's direction, together with the Output.
Customer Personal Information: personal information within Customer Data.
Data Processing Addendum or DPA: the addendum published at /data-processing, which is part of these Terms.
Documentation: the help pages Profinetic publishes inside the Service for Customer's Authorized Users. Promotional materials are not Documentation.
Fees: the amounts stated in an Order Form.
Order Form: an ordering document that refers to these Terms, states the subscription, its Fees and its Subscription Term, and is signed by both Customer and Profinetic.
Output: the information, text and other material the Service produces for Customer from Customer Data.
Owner: an Authorized User who holds the Owner role in Customer's account.
Security Incident: has the meaning the DPA gives it.
Service: Profinetic's hosted software service, including the AI Features and the Documentation, but not any Third-Party Service.
Subscription Term: the period stated in an Order Form, and each renewal of it.
Third-Party Service: any software, service or data source not provided by Profinetic that Customer chooses to use with the Service, including any Customer connects to the Service.

3. How the agreement fits together

The Data Processing Addendum is incorporated into these Terms and binds both parties whenever Profinetic processes Customer Personal Information. The Privacy Policy is a notice of how Profinetic handles information, including the information it collects for its own purposes, such as account and sign-in information. It is not part of the Agreement and does not add to or change it.

If the documents conflict, they apply in this order:

an Order Form, where it conflicts with these Terms or the DPA, for that Order Form;
the DPA, for anything about Customer Personal Information;
these Terms; and
the Documentation.

Terms in a purchase order, vendor registration, supplier portal or similar document that Customer issues do not apply, even if Profinetic accepts, signs or clicks through it, unless a written amendment signed by both parties says they do.

Customer's Affiliates may use the Service under Customer's account where an Order Form lists them or Customer allows it, and Customer is responsible for them. An Affiliate may also sign its own Order Form, which forms a separate agreement on these Terms. Where the Service lets Authorized Users view the records of more than one of Customer and its Affiliates, Customer confirms that it is authorized to have each Affiliate's Customer Data made available in that way, and to give instructions under the DPA for each Affiliate.

4. Access to the Service

Subject to the Agreement, and to payment of the Fees, Profinetic grants Customer a non-exclusive, non-transferable (except under Section 27) and non-sublicensable right, during the Subscription Term, for its Authorized Users to access and use the Service for Customer's internal business purposes, within any limits stated in the Order Form.

A paid subscription is made by an Order Form. Until Customer and Profinetic sign one, Customer's use of the Service is Pilot Use under Section 17, and the right above lasts for as long as that Pilot Use does.

Profinetic will make the Service available materially as described in the Documentation, except for planned maintenance, which Profinetic will try to schedule outside normal United States business hours, and for events outside its reasonable control. Profinetic provides support by email at the address in Section 28 during its normal business hours. An Order Form may add service levels or support commitments.

Who owns the Service, and the rules on copying it, its trademarks and feedback, are in Section 13.

Customer is responsible for its Authorized Users' compliance with the Agreement and for all activity under its account.
Each Authorized User must have their own sign-in and keep it confidential. Sign-ins may not be shared.
Customer decides who has access and at what level, and is responsible for removing access promptly when a person no longer needs it.
The Service offers two-factor sign-in to every Authorized User, and Profinetic strongly recommends that every Authorized User turn it on. The Service does not currently let Customer require two-factor sign-in of every Authorized User. Where a law that applies to Customer requires multi-factor authentication for people who access Customer's information (for example, the FTC Safeguards Rule), Customer is responsible for meeting that requirement, and will tell Profinetic before it brings information that law covers into the Service, so that the parties can agree in an Order Form how it will be met.
Customer must tell Profinetic promptly at the address in Section 28 if it learns of, or suspects, unauthorized use of an account or any other security problem with the Service.

6. Customer responsibilities

Customer is responsible for the accuracy, quality and legality of Customer Data, and for having every right, and giving every notice and obtaining every consent, that the law requires for Profinetic to process Customer Data under the Agreement. This includes the notices and consents owed to Customer's own customers, to visitors to its websites and apps, and to its personnel, at or before the time the information is collected.
Customer is responsible for complying with the laws that apply to the information it chooses to provide or collect through the Service, including laws on electronic communications, on electronic monitoring of employees and on tracking devices, and for any notice those laws require. This includes information sent to the Service by any software or code Customer uses with it.
Before Customer connects to the Service a vehicle, a piece of equipment or a device that an individual uses, Customer will give that individual every notice, and obtain every consent, that the law requires for the location and usage information it reports to be collected and processed under the Agreement.
Customer authorizes Profinetic to access each Third-Party Service with the credentials or authorizations Customer provides, to retrieve Customer Data for the Service.
Customer is responsible for the decisions it makes and the actions it takes using the Service or the Output.
The Service is not designed to make, and Customer will not use the Service or any Output as the sole basis for, a decision that produces a legal or similarly significant effect on an individual, such as a decision about hiring, ending employment, discipline or pay. Customer is responsible for meaningful human review of any such decision and for any notice, assessment or opt-out that laws on automated decision-making require of Customer.
Profinetic is not a consumer reporting agency. Customer will not use the Service or any Output as a "consumer report" under the Fair Credit Reporting Act or a similar law.

7. Prohibited data

Unless an Order Form expressly allows it, Customer will not submit to the Service, or set up the Service to retrieve, any of the following ("Prohibited Data"):

Social Security numbers, or driver's license, passport or other government identification numbers;
bank, debit or credit card account numbers, or the passwords or codes that give access to a financial account (other than the authorizations Customer grants the Service to retrieve data from a Third-Party Service);
consumer reports or information derived from them, credit scores, or applications for credit or financing, including the income information in them;
protected health information under HIPAA, or other information about an individual's health, medical condition, diagnosis or treatment. Profinetic does not act as a business associate unless the parties sign a business associate agreement;
biometric information;
personal information that Customer collected directly from a child under 13;
the precise geolocation of an individual, other than location information from vehicles, equipment or devices that Customer connects to the Service under Section 6;
personal data protected by the GDPR, the UK GDPR or another data protection law of a country other than the United States; or
information that is controlled for export under United States law.

Profinetic has no duty to look for Prohibited Data. If Customer submits Prohibited Data in breach of this Section, Profinetic's confidentiality and security obligations still apply to it, but Profinetic is not responsible for any other legal requirement that applies only because of that data.

8. Acceptable use policy

Customer and its Authorized Users will not:

use the Service to break any law or to violate anyone's rights, including laws on privacy, telephone and text solicitation, unsolicited email, consumer protection, discrimination and employment;
access, or try to access, another customer's account or data, or any part of the Service they are not authorized to use;
probe, scan or test the vulnerability of the Service, or bypass its security or sign-in controls, except in a test Profinetic has authorized in writing;
interfere with or disrupt the Service, including by overloading it or by sending it malicious code;
copy, frame or mirror the Service, or reverse-engineer, decompile or disassemble it, except to the extent the law allows this despite this restriction;
use the Service or its content to build or improve a competing product or service, or to copy its features, design or methods;
access the Service, or scrape, crawl or otherwise extract content from it, by automated means such as scrapers or bots, other than through interfaces Profinetic provides for that purpose or by exporting Customer Data through the features the Service provides;
sell, resell, sublicense, rent, lease or time-share the Service, offer it under another brand, or use it to provide services to anyone other than Customer and its Affiliates, without Profinetic's written consent;
let anyone other than an Authorized User use an account;
submit Prohibited Data, or material that is unlawful, infringing, defamatory or malicious;
use the AI Features in a way that breaks the usage policy of the AI model provider, which Profinetic will provide on request; or
remove or alter any proprietary notice in the Service.

Please report suspected security vulnerabilities to the address in Section 28. This policy changes only as Section 25 describes.

9. Information only, not professional advice

Profinetic presents information derived from the business records Customer provides or connects, and is provided for informational purposes only.

Profinetic does not provide business, financial, legal, tax, accounting or investment advice, and does not give recommendations, instructions or directives about any business decision. What Profinetic presents may be incomplete, out of date or wrong, including because of errors or gaps in the data it is derived from, and it may rest on stated assumptions. Customer is solely responsible for reviewing the underlying records before relying on the Output, and for every business decision made using the Service.

Any estimate Profinetic presents is based on available data and stated assumptions. Profinetic does not guarantee revenue, profit, cost savings or any other business outcome.

Output is management information for Customer's internal use. It is not a financial statement, is not prepared under generally accepted accounting principles, and is not audited or reviewed. Customer will not give Output to a lender, surety, insurer, investor, auditor or government body for it to rely on without first checking it independently, and Customer is responsible for any reliance on Output by anyone to whom Customer gives it.

The Service is not a payroll, timekeeping, tax or accounting system of record, and is not a backup of Customer's records. Customer will keep its own records as the law requires.

10. AI features

Some features of the Service use a third-party AI model provider, currently Anthropic, PBC (the "AI Features"). The AI Features that work from Customer Data are off until one of Customer's Owners turns them on in the Service, and an Owner can turn them off again at any time. For each request, Profinetic sends the provider only the information that request needs, which can include personal information within Customer Data; the line that names a member of Customer's staff is left out.

The provider processes that information as Profinetic's subprocessor under the DPA, on terms that do not allow it to train its models on that information.
Profinetic does not use Customer Data to train, develop or improve AI models, and does not allow its subprocessors to do so.
Text produced by AI Features can be inaccurate or incomplete. Customer should review it against the underlying records before relying on it, and Section 9 applies to it.
Profinetic will give notice under the DPA before it changes AI model providers.

11. Third-party services

Customer's use of a Third-Party Service is governed by Customer's own agreement with its provider. Customer is responsible for complying with that agreement and for having the right to give Profinetic access. Data the Service retrieves from a Third-Party Service becomes Customer Data. Where a provider requires limits on how data obtained through its programming interfaces is used, Profinetic's handling of that data follows those limits, including deleting data from the Service when the provider, or the person whose account at the provider was used to connect it, asks for that under the provider's rules. Copies in backups are kept as the DPA describes and are deleted again if a backup is restored.

The Service only reads from the Third-Party Services Customer connects: it does not create, change or delete anything in them. Profinetic asks each provider for the narrowest access that provider offers for what the Service reads, stores the credentials encrypted as the DPA describes, and deletes them when Customer disconnects that service or the Agreement ends. Copies in backups are kept as the DPA describes, and a restore does not reconnect a service Customer disconnected. For a service connected by signing in to it, Profinetic also asks the provider to revoke its access, unless another connection in the Service may still use the same sign-in; an API key Customer created for a service can be deleted at that provider. The Privacy Policy lists the services that can be connected today and what the Service reads from each.

Profinetic is not responsible for a Third-Party Service's availability, accuracy, security or practices, or for a provider changing its service, its programming interfaces or its terms, including limiting or ending access. Such a change is not a breach of the Agreement by Profinetic. If it materially reduces the Service, Profinetic will tell Customer and work in good faith on an alternative. If none is available within 30 days, Customer may end the affected subscription by notice and receive a refund of prepaid Fees for the rest of its Subscription Term.

12. Customer data

As between the parties, Customer owns Customer Data, including the Output. Customer grants Profinetic a worldwide, non-exclusive, royalty-free license to host, copy, process, transmit and display Customer Data only as needed to provide the Service to Customer, to prevent or address security, support or technical problems, and as the Agreement (including the DPA) otherwise allows or the law requires. The license lasts for the Subscription Term and for any later period Section 20 allows.

Profinetic does not sell Customer Data, does not share it for targeted ads, and does not combine one customer's data with another's, except as Customer directs (for example, among Customer and its Affiliates).
Profinetic does not use Customer Data to create aggregated or de-identified data sets for use outside Customer's account.
Profinetic uses Customer Data only for the purposes in Section 3 of the DPA. It does not use Customer Data to improve the Service for anyone other than Customer, to develop other products, or to build profiles for anyone other than Customer.
Profinetic may collect technical information about how the Service runs and is used, such as logs, error reports and counts of activity ("Usage Information"), and use it to provide, secure, support and improve the Service. Where Usage Information contains Customer Data, or identifies Customer or an individual, Profinetic uses that part only to provide, secure and support the Service, under the Agreement's confidentiality and data protection terms.
During the Subscription Term, Customer can export the Customer Data that the Service's export features cover, and on request Profinetic will give Customer a copy of the rest of it, in a commonly used, machine-readable format such as CSV, within 30 days.

13. Intellectual property

Profinetic and its licensors own the Service and everything in it other than Customer Data, including its software, website, design, text, graphics and Documentation, and every improvement to them, which are protected by copyright, trademark and other laws. Customer's right to use the Service is the limited right in Section 4. No other right or license is granted, by implication or otherwise, and Profinetic reserves every right these Terms do not expressly grant. Nothing in this Section limits Customer's ownership of Customer Data under Section 12, or its right to export it.

Customer may not copy, modify, distribute, sell or lease any part of the Service or its content, or create derivative works from it, except as these Terms expressly permit.

Profinetic™ and the Profinetic logo are trademarks of Profinetic, LLC. Customer may not use them without Profinetic's prior written consent, except to refer accurately to the Service.

If Customer sends Profinetic suggestions or feedback about the Service, Profinetic may use them without restriction or obligation to Customer, provided it does not identify Customer or disclose Customer's Confidential Information.

14. Confidentiality

"Confidential Information" means non-public information one party (the "discloser") gives the other (the "recipient") under the Agreement that is marked confidential or that a reasonable person would understand to be confidential. Customer's Confidential Information includes Customer Data. Profinetic's includes the Service's non-public features, design, methods and Documentation, its pricing, and the terms of each Order Form.

Confidential Information does not include information that is or becomes public without the recipient's fault, that the recipient already knew without a duty of confidence, that it receives from a third party without a duty of confidence, or that it develops independently. Those exceptions never remove the protection personal information has under the DPA.

The recipient will use Confidential Information only to exercise its rights and fulfil its obligations under the Agreement, and will protect it with at least the care it uses for its own information of the same kind, and no less than reasonable care. It may disclose it only to its and its Affiliates' employees, contractors and advisers who need it for the Agreement and are bound by confidentiality duties at least as protective as these, and it is responsible for them. If the law or a court requires disclosure, the recipient will give the discloser prompt notice where the law allows, and reasonable help to seek protection, and will disclose only what is required.

These duties last during the Agreement and for five years after it ends; for a trade secret, for as long as it remains one; and for Customer Data, for as long as Profinetic holds it. A breach of this Section may cause harm that money cannot fully repair, so the discloser may seek an injunction in addition to any other remedy.

15. Security and data protection

Profinetic will maintain reasonable administrative, technical and physical safeguards, appropriate to the nature of Customer Data, designed to protect it, including at least the security measures in Annex 2 of the DPA, and will not materially reduce their overall protection during a Subscription Term. Profinetic processes Customer Personal Information as Customer's service provider and processor under the DPA, which also covers notice of Security Incidents, subprocessors, help with individuals' requests, assessments, and deletion.

16. Fees, invoices and taxes

Customer will pay the Fees in each Order Form. Unless the Order Form says otherwise, Fees are invoiced in advance, monthly or annually as the Order Form states, in United States dollars, and are due within 30 days of the invoice date, by the payment method the Order Form names.
Fees are for the subscription purchased, not for actual use. They are non-cancellable and non-refundable except where the Agreement expressly provides a refund.
Customer may dispute an invoice in good faith by notice, with an explanation, within 30 days of receiving it. The parties will work together to resolve the dispute, and Customer will pay the undisputed part on time.
Profinetic may charge interest on overdue undisputed amounts at 1% per month, or the highest rate the law allows if that is lower, from the due date until paid.
Fees do not include taxes. Customer is responsible for all taxes, duties and similar governmental charges on its purchases under the Agreement, including use, value-added and withholding taxes, except taxes on Profinetic's income, property or employees. Where Profinetic must collect a tax, it will invoice it unless Customer provides a valid exemption certificate.
Profinetic may change the Fees for a renewal by notice at least 60 days before the renewal date, within any limit the Order Form sets. A change takes effect only at renewal.

17. Pilot use

Use of the Service, or of a feature of it, that is free, at a reduced fee, for a pilot, trial, evaluation or preview, or before Customer and Profinetic have signed an Order Form, is "Pilot Use". Profinetic's written offer or the Order Form, where there is one, sets its length and conditions. Profinetic may end or change free Pilot Use at any time with notice. To the extent the law allows, Pilot Use is provided without the warranty in Section 21, any service level, or Profinetic's duties in Section 23. Sections 14, 15 and 20 and the DPA apply to Pilot Use in full. If Pilot Use ends without a paid subscription, Section 20 applies to Customer Data.

18. Term, renewal and termination

The Agreement starts when Customer first accepts it and continues until every Subscription Term and any Pilot Use has ended, unless it is terminated earlier.
Unless the Order Form says otherwise, each Subscription Term renews automatically for a period equal to the one that is ending, up to 12 months, unless either party gives notice of non-renewal at least 30 days before the end of the current period. A month-to-month subscription renews each month until either party gives at least 30 days' notice.
For a Subscription Term of 12 months or longer, Profinetic will remind Customer of the coming renewal and of the deadline for notice of non-renewal at least 15 and no more than 30 days before that deadline, by email to Customer's billing contact and, where a law requires another method, by that method.
Either party may terminate the Agreement, or an affected Order Form, by notice if the other materially breaches it and does not cure the breach within 30 days after notice describing it. Either party may also terminate by notice if the other becomes insolvent, makes an assignment for the benefit of creditors, or becomes the subject of a bankruptcy proceeding that is not dismissed within 60 days.
If Customer terminates because of Profinetic's uncured breach, Profinetic will refund the prepaid Fees for the rest of the Subscription Term. If Profinetic terminates because of Customer's uncured breach, Customer will pay, to the extent the law allows, the unpaid Fees for the rest of the Subscription Term, less any costs Profinetic saves by no longer providing the Service. Termination does not relieve Customer of Fees owed for the period before it.
Profinetic may stop offering the Service to all its customers by giving Customer at least 90 days' notice. It will then refund prepaid Fees for any period after the Service ends, and Section 20 applies to Customer Data.
Sections 2, 6, 9, 12, 13, 14, 16 (for amounts owed), 20, 22, 23, 24, 26 and 27, and any other provision that by its nature should survive, survive the end of the Agreement.

19. Suspension

Profinetic may suspend access to the Service, in whole or in part (for example, for one Authorized User or one Third-Party Service), only if: an undisputed amount is more than 30 days overdue and Customer has not paid it within 10 days after notice; Profinetic reasonably believes suspension is needed to prevent a security threat to the Service or to others, or harm to Profinetic or anyone else; Customer's use breaches Section 7 or 8 in a way that creates legal risk for Profinetic or others; or the law or a court order requires it. For a breach of Section 7 or 8, Profinetic will first give notice and 5 business days to cure, unless suspending sooner is needed to prevent imminent harm. Profinetic will limit any suspension to the affected users or data where it can and to what is reasonably necessary, give notice before suspending where practical (and otherwise promptly after), and restore access promptly once the cause is resolved. Suspension does not delete Customer Data.

20. Customer data when the agreement ends

For 30 days after the Agreement ends, Profinetic will, on Customer's request, give Customer a copy of Customer Data in a commonly used, machine-readable format such as CSV. After those 30 days, Profinetic will delete Customer Data from the Service's active systems within a further 30 days, and will delete its credentials for each Third-Party Service Customer connected. Copies in automatic backups are deleted as those backups expire, within 35 days. Snapshots taken before maintenance have no set end date and are kept until Profinetic removes them, as the Data Processing Addendum describes. Profinetic does not use the copies in backups and restores from them only to recover the Service or lost data; after a restore, it deletes again any Customer Data it had already deleted under this Section or on request. On request, Profinetic will confirm the deletion in writing and say whether copies remain in backups.

Apart from the backup copies described above and the record of deletions the Data Processing Addendum describes, Profinetic may keep Customer Data longer only where the law requires it, and then only the part the law requires. Anything Profinetic keeps, backups included, stays under the Agreement's confidentiality and security terms. Profinetic may also keep records of Customer's account, billing, and acceptance of the Agreement as needed for its legal, tax and accounting obligations and to establish, exercise or defend legal claims.

21. Warranties

Each party warrants that it has the authority to enter into the Agreement and will comply with the laws that apply to it in connection with the Agreement.

Profinetic warrants that, during the Subscription Term, the Service will operate materially as described in the Documentation, and Profinetic will not materially reduce the Service's core functionality or the overall protection of its security measures. If Profinetic breaches this warranty and Customer gives notice within 30 days of discovering it, Profinetic will use reasonable efforts to correct the problem. If Profinetic cannot do so within 30 days of the notice, Customer may terminate the affected Order Form and receive a refund of prepaid Fees for the rest of its Subscription Term. This is Customer's sole remedy for a breach of this warranty. The warranty does not apply to Pilot Use, to Third-Party Services, or to problems caused by use that breaches the Agreement. It does not cover inaccuracy in Output caused by Customer Data or a Third-Party Service, by the uncertainty that estimates carry, or in text that AI Features produce; it does cover Output that is wrong because the Service did not work as the Documentation describes.

Profinetic will not knowingly introduce into the Service any virus, malware or other code designed to disable or harm Customer's systems or data.

22. Disclaimers

Except as the Agreement expressly states, the Service, the Output and the Documentation are provided "as is" and "as available". To the fullest extent the law allows, Profinetic disclaims all other warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, title and non-infringement. Profinetic does not warrant that the Service will be uninterrupted or error-free, that the Output will be accurate or complete, or that any result will be achieved.

23. Indemnification

By Profinetic. Profinetic will defend Customer against any claim by a third party alleging that the Service, as Profinetic provides it and used as the Agreement allows, infringes or misappropriates that party's United States patent, copyright, trademark or trade secret, and will pay the damages and costs finally awarded against Customer, or agreed in a settlement Profinetic approves. Profinetic has no duty for a claim arising from Customer Data, a Third-Party Service, a combination with something Profinetic did not provide, a change Profinetic did not make, or use after Profinetic asked Customer to stop. If the Service is, or Profinetic believes it may be, subject to such a claim, Profinetic may get Customer the right to keep using it, modify it so it does not infringe, or, if neither is reasonably possible, end the affected subscription and refund the prepaid Fees for the rest of its Subscription Term. This paragraph states Profinetic's entire duty for infringement claims.

Profinetic will also defend Customer against any claim by a third party, including an investigation or proceeding by a government authority, to the extent it arises from a Security Incident caused by Profinetic's breach of Section 15 or the DPA, and will pay the damages, fines and costs finally awarded against or imposed on Customer, or agreed in a settlement Profinetic approves.

By Customer. Customer will defend Profinetic against any claim by a third party, including an investigation or proceeding by a government authority, to the extent it arises from: Customer's collection, provision or use of Customer Data in breach of the law or of Section 6 or 7, including a claim that Customer lacked a right, notice or consent it needed; Customer's or its Authorized Users' use of the Service in breach of Section 8 or of the law; a decision about an individual that Customer made using the Service or the Output; or reliance on Output by anyone to whom Customer gave it. Customer will pay the damages, fines and costs finally awarded against or imposed on Profinetic, or agreed in a settlement Customer approves. Customer has no duty under this paragraph to the extent a claim arises from Profinetic's breach of the Agreement or the DPA, or from Profinetic's negligence or willful misconduct.

Process. The party seeking defense will give prompt notice of the claim (a delay relieves the other party only to the extent it is prejudiced), give the defending party sole control of the defense and settlement, and give reasonable cooperation at the defending party's expense. The defending party may not settle a claim in a way that admits fault by, or imposes a duty on, the other party without that party's consent, which it will not unreasonably withhold. The other party may take part with its own counsel at its own cost. The duties in this Section are subject to Section 24.

24. Limitation of liability

Neither party is liable to the other for any indirect, incidental, special, consequential, exemplary or punitive damages, or for lost profits, lost revenue, loss of goodwill or business interruption, however caused and under any theory of liability, even if told they were possible.

The following are direct damages, are not excluded by the paragraph above, and are recoverable only within the Enhanced Cap: the reasonable costs of investigating a Security Incident; of the notices to individuals, regulators and others that the law requires or that are customary; of a help line for affected individuals; and of 12 months of credit or identity monitoring where the law requires it or it is customary; fines and penalties a government authority imposes, to the extent caused by the other party's breach; and amounts a party must pay a third party under Section 23.

Each party's total liability for all claims arising out of or relating to the Agreement, under any theory (including contract, tort, negligence and statute), will not exceed the greater of the Fees paid and payable by Customer under the Agreement in the 12 months before the event giving rise to the liability, and US $5,000 (the "General Cap").

For Data Protection Claims, and for each party's duties under Section 23, each party's total liability will not exceed the greater of two times the General Cap and US $25,000 (the "Enhanced Cap") instead. Except as the next paragraph provides, the Enhanced Cap is the most a party will pay for all claims under the Agreement together: amounts it pays for other claims count toward it, and no claim other than those in this paragraph or the next is recoverable above the General Cap. "Data Protection Claims" means claims arising from a Security Incident, or from misuse of credentials for a Third-Party Service that Profinetic holds, caused by a party's breach of Section 14, Section 15 or the DPA, and claims arising from Customer's breach of Section 6 or 7.

Nothing in this Section limits: Customer's duty to pay Fees; a party's liability for infringing or misappropriating the other party's intellectual property; Customer's liability for deliberate misuse of the Service by Customer or its Authorized Users in breach of Section 4, or of Section 8's rules against accessing another customer's account or data, probing or bypassing the Service's security, disrupting it, copying or reverse-engineering it, using it to build a competing product, extracting its content by automated means, or reselling it; a party's liability for its fraud or willful misconduct; or any liability the law does not allow to be limited or excluded. The parties agree that these limits are a fair allocation of risk, reflected in the Fees, and that they apply even if a limited remedy fails of its essential purpose.

25. Changes to the Service and to these terms

Profinetic may update the Service from time to time, subject to the commitments in Section 21.

Profinetic changes these Terms or the DPA only by publishing a new version, with a new date, and asking for it to be accepted. Except for a change needed to comply with law or to respond to a security threat, Profinetic will give Customer's account Owners at least 30 days' notice of a material change by email before the Service asks for the new version to be accepted. A new version applies to a person, and to Customer, from the time they accept it under Section 1; until Customer's Owner accepts it, the version Customer last accepted continues to apply to Customer. Continuing to use the Service is not acceptance of a new version. Once the notice period ends, the Service may ask each person to accept the new version before they continue to use it. If Customer does not wish to accept it, Customer may end the affected subscription by notice and receive a refund of prepaid Fees for the rest of its Subscription Term. Whether or not Customer accepts a new version, Profinetic will give Customer a copy of all of its Customer Data on request, within 30 days.

A change needed to comply with law, or to respond to a security threat, may be asked for sooner where necessary, with notice as soon as practicable. A new version never applies to a dispute that arose before it took effect. A signed agreement, including an Order Form, changes only by a written amendment signed by both parties.

26. Governing law and disputes

The Agreement, and any dispute arising out of or relating to it or to the Service, is governed by the laws of the State of Florida, without regard to its conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply.

Before starting a lawsuit (other than for an injunction), a party will give the other notice of the dispute, and senior representatives of both will try in good faith to resolve it for 30 days. The only courts that may hear a dispute arising out of or relating to the Agreement or the Service are the state courts located in Palm Beach County, Florida, or the United States District Court for the Southern District of Florida (West Palm Beach Division). Each party submits to the personal jurisdiction of those courts and waives any objection to venue there, except that either party may seek an injunction in any court with jurisdiction to protect its intellectual property or Confidential Information.

JURY TRIAL WAIVER. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LAWSUIT ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SERVICE. THIS WAIVER IS A MATERIAL PART OF THE AGREEMENT FOR BOTH PARTIES.

To the extent the law allows, each party will bring claims only in its own name and not as a plaintiff or member of a class or representative action. In any action to collect overdue Fees, or to enforce Section 8 or 13, the party that prevails may recover its reasonable attorneys' fees and costs.

27. General terms

Notices. Notices about breach, termination, non-renewal or an indemnification claim must be in writing. Notices to Profinetic go by email to the address in Section 28 and, for those formal notices, also by courier or certified mail to the principal address of Profinetic, LLC shown in its public record with the Florida Division of Corporations (document number L26000546152). Notices to Customer go to the address in its Order Form or, if none, by email to its account Owners. Other notices may be given by email or in the Service.
Assignment. Neither party may assign the Agreement without the other's written consent, which will not be unreasonably withheld, except that either party may assign it in its entirety, with notice, to an Affiliate or to a successor in a merger, acquisition or sale of all or substantially all of its assets or of the business the Agreement relates to. If Profinetic assigns the Agreement to a direct competitor of Customer, Customer may terminate it on 30 days' notice given within 60 days after the assignment and receive a refund of prepaid Fees for the rest of its Subscription Term.
Subcontractors. Profinetic may use subcontractors and subprocessors under the DPA, and is responsible for them.
Events outside a party's control. Neither party is liable for a delay or failure caused by events outside its reasonable control, except for payment duties. This does not excuse Profinetic from maintaining its security measures or from giving notice of a Security Incident under the DPA.
Publicity. Neither party will use the other's name or logo in publicity without the other's written consent, which an Order Form may give.
Export and sanctions. Each party will comply with United States export control and sanctions laws. Customer will not allow access to the Service from a country under a United States embargo or by a person on a United States restricted-party list.
Anti-corruption. Neither party has offered or received any bribe or improper payment in connection with the Agreement.
Relationship. The parties are independent contractors. The Agreement creates no partnership, joint venture, agency or employment relationship, and no third-party beneficiaries.
No personal liability. Customer's only recourse for any obligation of Profinetic under or relating to the Agreement is against Profinetic, LLC. No member, manager, officer, employee or agent of Profinetic is personally liable for Profinetic's obligations.
No reliance. In accepting the Agreement, Customer has not relied on any statement, promise, projection, estimate of savings or results, demonstration, presentation or other promotional material that the Agreement does not set out.
Waiver and severability. A failure to enforce a provision is not a waiver. If a provision is unenforceable, it will be changed to the minimum extent needed to make it enforceable, and the rest of the Agreement stays in effect.
Entire agreement. The Agreement is the parties' entire agreement about its subject and replaces all prior agreements and understandings about it. The word "including" means "including without limitation". Headings are for convenience only. The Agreement may be accepted electronically and signed in counterparts.

28. Contact

Questions about these Terms, notices, and reports of security vulnerabilities can be sent to support@fxintelhq.com. Formal written notices also go by mail to the principal address of Profinetic, LLC shown in its public record with the Florida Division of Corporations.

Terms of Service