Member Terms of Service

 

 

GENERAL

TERMS OF SERVICE

Thank you for selecting the Services offered by the respective Business (referred to as “Company”, “Business,” “we,” “our,” “us”) and powered by Predictile, LLC (referred to as “Predictile,” “Predictile Platform,” “Platform Provider”). By subscribing to a Member Plan you become a Member, and these Members Terms of Service (“Terms of Service”) govern your access to and use of service, including the Predictile Platform, defined as a subscription platform, and any other services, plans, credits, features, products, content, applications, software, maintenance, tools, video instruction, and training offered by us from time to time (collectively the “Services”) identified in one or more Company subscription agreements (“Subscription Agreement” or “Subscription Agreements” or “Member Plan Agreement” or “Member Plan Agreements”) or made available by us from time to time.

 

ACCEPTANCE

By using or visiting the Services or Predictile Platform, you accept and agree to be bound by (i) these Terms of Service, (ii) all Member Plan Agreements which are incorporated herein by reference and (iii) our Privacy Policy, found at https://www.predictile.com/privacy-policy (the “Privacy Policy”), which is incorporated herein by reference (collectively referred to as the “Agreement”).

This Agreement constitutes a binding agreement between the Customer (“Customer,” “Member,” “you,” and “your”) and the Company. This Agreement represents the parties’ entire understanding regarding the Services.

OUR SERVICES

SUBSCRIPTION SERVICE

Unless otherwise provided in the Subscription Agreement, a Customer purchases Services as a Subscription and acknowledges and signs a Member Plan Agreement. Subject to your compliance with this Agreement and your payment of any applicable fees, the Company grants you a non-transferable, non-exclusive, worldwide right to access and use the purchased Services and Predictile Platform during the subscription agreement term set out in the Member Plan Agreement (“Subscription Agreement Term”).

 

NOT PROFESSIONAL ADVICE

The Company and the Predictile Platform provide online tools and materials to assist you with overall subscription and member plan management, including on-boarding, plans and credits management, and data storage of related information, and we may provide advice regarding the value and use of such plans and information. However, the online tools, documents, and other materials available through the Services and any advice provided, (collectively, the “Service Materials“) are for informational purposes only; they are not guaranteed to be correct, complete or up-to-date, and all final decisions about the value and use of any Plans will be yours. We do not review the Service Materials, any usage, and any information that you input or provide to us for accuracy or sufficiency.  You understand that our providing of the Services to you does not constitute any guarantee of a particular outcome or otherwise make us responsible in any way for the success or failure of any Plan you undertake in connection with the Services.

 

PASSWORDS AND SECURITY

In order to use the Service, you will have to sign-up and create an Account with us and provide one or more names, phone number, email addresses, login email address, login password (together, “ID”). You are responsible for maintaining the confidentiality of your IDs (especially the login and password). You agree not to use your IDs, usernames, or passwords of any third party or disclose your IDs, usernames, or passwords to any third party. You are responsible for any and all activity that occurs on your Account. If you suspect any unauthorized use with your Account, you must notify us immediately. You agree to maintain correct and complete Account information in the Predictile Platform at all times, and inform us of any changes to the information you have provided. We will, in accordance with our Privacy Policy, keep your usernames and passwords confidential.

 

USAGE LIMITS

Services that we provide may be subject to usage limits and restrictions based on the Plans offered and purchased, which may be specified in the Subscription Agreement including, without limitation, the store location(s) at or through which you can use the Services, the number of Plans, the number of Credits received and used, etc. You agree to use the Services within the usage limits and restrictions set forth in the Subscription Agreement. It is your responsibility to ensure that you do not exceed those limits and restrictions. We have the right, but not the obligation, to monitor or remotely audit your use of any Service. Extra charges will apply if you exceed any usage limits at our then-current usage fees.

NECESSARY EQUIPMENT TO USE THE SERVICES

You are responsible for obtaining and maintaining all telecommunications, Internet, computer hardware, software, equipment, and services needed to connect to, access, and use the Services when you desire to view from your own device.

FEES AND PAYMENTS

FEES

You agree to pay all costs defined in the Member Plan Agreement. The Company provides you discounts to the retail prices of the products due in large part to the quantity of product to be purchased within this agreement. Therefore, all Plan costs are non-cancellable and non-refundable for the Term of the Agreement, unless otherwise stated in the Member Plan Agreement.  Plan costs are based on Services subscriptions purchased and not actual usage. Extra charges may apply if you exceed any usage limits or restrictions. Depending on the service and product, appropriate local, state, and federal taxes will be applied as an additional cost to the subscription cost based on the business location of product delivery. For auto-renewals of Plan(s), costs may increase on Renewal of each Agreement Term from the Agreement Start Date.

For the avoidance of doubt, you shall not be entitled to any refund in the event of unused Services, and for terminated Plan(s) you have up to 60 days from the Termination Date to use any outstanding Credits for the respective Plan(s).

 

PAYMENT TERMS

Unless otherwise defined in the Member Plan Agreement, Service fees for each subscription Plan are charged in advance at the beginning of each Billing Cycle on a recurring charge to the credit card, debit card, or bank account number associated to your Account. Upon approval of successful payment, a Plan Credit(s) is generated and added to your Account for your use. The Credit is equal to a product or service as defined in the Member Plan Agreement. The initial payment will be processed upon launch of your Plan and may include additional One-Time charges based on your Member Plan Agreement.

All costs are exclusive of taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on the Company’s income), even if such amounts are not listed on the Member Plan Agreement. You shall pay all fees in U.S. Dollars or in such other currency as agreed in the Member Plan Agreement by the parties without set-off or deduction.

 

 

PAYMENT BILLING CYCLE
Unless otherwise defined in the Member Plan Agreement, Plan costs are charged Monthly from the Agreement Start Date and respective Credits are updated on your Account once charge is processed successfully. Plan costs are due and will be processed on the same day each month as your Agreement Start Date, or on the last day of each month for Agreement Start Day’s that are not included in shorter months.

 

 

DECLINED AND OVERDUE CHARGES

For any recurring charges that are declined during the Term of the Agreement, up to a $15 Declined fee may be charged for processing, handling, and communications of the declined charge to remedy the situation. Upon the Declined charge, your Plan will be placed On-Hold in “Past Due” status until payment method is updated successfully. No Credits can be used during “Past Due” status for the respective Plan. Upon successful update of payment method, outstanding charges will be processed and Credits updated to bring your account current.

Unpaid balances past due that are not the subject of a written good faith dispute are subject to interest at a rate of 2% per month on the outstanding balance, or the legal maximum interest rate, whichever is lower, plus all reasonable expenses of collection, in addition to any other remedies we may have.

SUSPENSION RIGHTS
We reserve the right to immediately terminate the Services if: (i) the billing or contact information provided by you is false or fraudulent; or (ii) you fail to make any payment due within ten business days after we have provided you with notice of such failure. Any suspension of the Services by us under this section shall not relieve you of your payment obligations under this Agreement. We will not be liable to you nor to any third party for any suspension of the Services resulting from your non-payment of fees.

COMPANY CONTENT AND SERVICE

CONTENT

The Services contains Content owned by the Company, by Predictile, or their suppliers (“Content”). “Content” means text, images, documentation, videos, or other content provided by the Company and Predictile to deliver its Services. The Company, Predictile, its suppliers, and licensors own and retain all rights, including all intellectual property rights, in and to the Services and the Content. Copyright, trademark, patent, trade secret, and other laws protect the Services and Content.

 

OWNERSHIP AND SERVICES

The Company and the Predictile Platform are a service and not sold to you. All rights not expressly granted to you in this Agreement are reserved and retained by us. You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, use, or sell any Content or other Content (other than your own data) appearing on or through the Services. You must not modify, build upon, or block any portion or functionality of the Services. We grant you a limited, revocable, software-as-a-service account that you have access to view and manage portions of your subscription Member Plan service and display the Content (excluding software code) in connection with using the Services during the Subscription Agreement Term. No Service, nor any part of any Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not misuse the Services. You may use the Services only as permitted by law. The Services access granted by us terminate if you do not comply with this Agreement.

DOCUMENTATION
The Company and Predictile hereby grant to you a non-exclusive, non-transferable, worldwide right during the Subscription Agreement Term to access and use the user documentation and user training videos relating to the operation and use of the Services that are provided by the Company and Predictile to you under this Agreement, as updated by the Company and Predictile from time to time (“Documentation”). The Company, Predictile, its suppliers, and licensors own and retain all rights in the Documentation. Copyright, trademark, patent, trade secret, and other laws protect the Documentation.

SOFTWARE

We may provide the Company and Predictile Platform software products (“Software”) for use in connection with the Service. We grant you and your related entities a limited, personal, worldwide, non-transferable, non-exclusive Service to use our cloud-based software-as-a-service Predictile Platform during the Subscription Agreement Term. Any Software is a service and not sold. Software may include code that is serviced under third party license agreements, including open source, made available, or provided with the Software, as applicable. Predictile and its suppliers own and retain all rights in the Software. Copyright, trademark, patent, trade secret, and other laws protect the Software.

RESTRICTIONS

You shall not (and shall not permit others to): (i) license, sub-license, sell, transfer, distribute, or share the Services, Software, or Documentation, or make any of them available for access by third parties; (ii) create derivative works based on or otherwise modify the Services, Software, or Documentation; (iii) disassemble, reverse engineer, or decompile the Services or Software or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services; (iv) access the Service, Software, or Documentation in order to develop a competing product or service; (v) use the Service, Software, or Documentation to provide a service for others; (vi) use Predictile Platform to operate more or different type of applications than permitted under the applicable Subscription Agreement; (vii) remove or modify a copyright or other proprietary rights notice on or in the Services, Software, or Documentation; (viii) use a computer or computer network to cause physical injury to the property of another; (ix) violate any applicable law or regulation; (x) disable, hack, or otherwise interfere with any security, digital signing, digital rights management, verification, or authentication mechanisms implemented in or by the Services; (xi) include, send, store, or run software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs from the Services; (xii) cause a computer to malfunction, regardless of how long the malfunction persists; or (xiii) alter, disable, or erase any computer data, computer programs, or computer software without authorization.

FEEDBACK

If you send information to us, for example feedback, comments, or suggestions, you grant us a perpetual, sub-licensable, royalty-free, transferable license to use, modify, and incorporate this information into our products and Services. You also agree to waive all moral rights in and to that information.

MODIFICATIONS

We are entitled to modify or update the Services from time to time in order to adapt it technically, to change menu guidance’s or layouts or to expand or limit functionality.

 

MEMBER CONTENT AND LICENSE

MEMBER CONTENT

As an Account holder, you may submit and publish Content on the Predictile Platform. Your Content is the Content that you as a Consumer entered and/or upload to the Service. You are exclusively responsible for all of your Content and the consequences of submitting and publishing your Content on the Service. Please choose carefully the Content that you post on the Service. The Company and Predictile does not verify the accuracy, quality, content, or legality of your Content. We may, but are under no obligation to, monitor, view, analyze, or edit any of your Content. We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with Applicable Laws. The Company and Predictile will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with your Content.

RESPONSIBILITY TO OBTAIN CONSENTS

You are responsible for obtaining all necessary consents, licenses, and waivers required to create, record, submit, publish, and use your Content in connection with the Services. These may include consents, licenses, and waivers from copyright, trademark, and other intellectual property owners, and any other individuals involved in creating your Content. In addition, you are responsible to pay all applicable royalties, fees, and other amounts owing to any Person in connection with the use of any of your Content.

CLIENT CONTENT OWNERSHIP AND LICENSE

As between you and us, you retain all rights of ownership in your Content. By entering, uploading, displaying, or publishing your Content to the Service, you grant the Company and Predictile a worldwide, royalty-free, fully paid-up, non-exclusive, sub-licensable, and transferable license to use, reproduce, modify, distribute, display, and perform your Content in connection with the Services. This license is necessary for the Company and Predictile to perform the Services. For example, without the right to modify your Content, we would not be able to format Content to satisfy technical requirements for online display. This license allows us to: (i) deliver your Content in accordance with the preferences set by you utilizing the Predictile Platform; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze, and create algorithms and reports based on access to and use of your Content; (iii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivate works of, promote, copy, store, and/or reproduce (in any form) your Content on or through the Service; and (iv) utilize your Content to test the Predictile Platform’s internal technologies and processes. You also grant Predictile and us a non-exclusive license to view your Content through the Service. We reserve the right to retain (but not display, distribute, or publish) server copies of your Content that have been removed or deleted from the Services.

REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and publish the Content you submit; (ii) the entering and uploading of your Content on the Service and the licenses granted to the Company and Predictile under this Agreement do not and will not violate the rights of any Person; and (iii) no payments of any kind shall be due by the Company or Predictile to any organization for the use or distribution of your Content.

PROHIBITED CONTENT

Some Content is prohibited on the Service. You agree that you will not upload or use in connection with the Service any prohibited Content including, without limitation, Content that: (i) is pornographic, sexually explicit, or offensive or contains a link to an adult website; (ii) contains graphic or gratuitous violence; (iii) conveys a message of hate against any individual or group; (iv) encourages or glorifies drug use; (v) is predatory in nature, or is submitted for the purpose of harassment or bullying; (vi) is highly repetitive and/or unwanted including “Spam” messages; (vii) promotes or incites racism, bigotry, hatred, or physical harm of any kind against any group or individual; (viii) constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory, or libelous; (ix) furthers or promotes criminal activity or provides instructional information about illegal activities; or (x) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights, or any other rights of any Person. The Company and Predictile reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending Content without prior notice, terminating, or suspending your Account or access to the Service and/or reporting such Content or activities to law enforcement authorities.

CONTENT PRESERVATION AND DISCLOSURE

We may preserve and store your Content and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes; (ii) comply with this Agreement; (iii) respond to claims that any of your Content violates the rights of any Person; or (iv) protect the rights, property, or personal safety of the Company, of Predictile, you, and/or the public.

USER DATA

USER DATA

You retain all rights to your Consumer data sent by you to Company and Predictile in relation to the performance of the Services. The Company and Predictile understand that it is a custodian of your data and not an owner of such data. You may request deletion of the data of its users at any time by emailing Info@Predictile.com.

 

ANONYMIZED USER DATA

In using the Services, the Company and/or Predictile may anonymize and aggregate your Service Data to improve the features available in the Services. The Company and Predictile assert that your information used on an Aggregate Basis will not be used in a manner that discloses any individually identifiable information about the user or any specific transactions in which the user has engaged.

The Company and Predictile are prohibited from disclosing user information other than on an Aggregate Basis (as defined below), except in accordance with the Privacy Policy or with your express consent.

 

RESPONSIBILITY TO OBTAIN CONSENTS

You are exclusively responsible for obtaining all necessary rights, releases, and consents to allow your Data to be collected, used, and disclosed in the manner contemplated by the Subscription Agreement and to grant the Company and Predictile the rights defined in this Agreement to us. We rely on you to obtain all consents from, and provide all disclosures to, third parties as required under Applicable Law. By using the Services, you represent and warrant to the Company and Predictile that you have obtained all necessary rights, releases, and consents from third parties to allow your Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant us the rights defined in this Agreement.

 

 

PRIVACY AND SECURITY

PRIVACY POLICY

Our Privacy Policy governs the collection and use of your information with regards to the Predictile Platform.

You understand that through your use of the Predictile Platform Services, you consent to the collection and use of this information, including the transfer of this information to the United States and/or other countries for storage, processing, and use by the Company and Predictile. Your Content shall be hosted and persistently stored by Predictile or its third-party service providers in the United States. In providing the Services, Predictile may engage sub-processors to process your Content, including, without limitation, any associated Personal Information pursuant to this Agreement within the United States, European Economic Area, and in other countries and territories. Under no circumstances will Predictile be deemed a data controller with respect to your Content under the Data Protection Act (European Directive 95/46/EC) or any relevant or replacement law or regulation of any Customer’s State as defined therein. “Personal Information” means any of your Content processed by the Company and Predictile pursuant to the Agreement, relating to an identified or identifiable natural person; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural, or social identity.

As part of providing you the Services, the Company and Predictile may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Account.

SECURITY

The Services are provided by the Company and Predictile from data center facilities to which Users have remote access via the Internet in conjunction with certain offline components provided by us under this Agreement. We may use third party service providers to provide limited parts of the Services from time to time, including data storage and processing, and you consent to us subcontracting these services to those third parties. We implement security procedures to help protect your Data from security attacks. However, you understand that use of the Services necessarily involves transmission of your Data over networks that are not owned, operated, or controlled by us, and we are not responsible for any of your Data lost, altered, intercepted, copied, or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Data will always be secure, or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. If you become aware of any security breach in the Services, you agree to promptly notify us. We agree to notify you in the event of a detected security breach. All data at rest is encrypted and all data in transit is encrypted.

NETWORKS

Technical processing and transmission of the Service, including your Content, may involve: (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Use of or connection to the internet provides the opportunity for unauthorized Persons to circumvent security precautions and illegally gain access to the Service, your Data, or your Content. We do not guarantee the privacy, security, or authenticity of any content, data, or information transmitted over or stored in any system connected to the internet.

MAINTENANCE AND REPAIRS

Predictile uses commercially reasonable efforts to ensure that availability of the Services will be uninterrupted and that transmissions will be error-free. However, due to the nature of the Internet, this cannot be guaranteed. Also, your access to Services may be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services. The Company and Predictile will attempt to limit the frequency and duration of any such suspension or restriction, and we will use commercially reasonable efforts to alert or notify you in the event of any scheduled or non-scheduled suspension of Services. Due to the nature of technical outages, we cannot guarantee notice prior to unplanned outages. The Company and Predictile will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause, which is beyond our reasonable control.

 

 

THIRD PARTY SERVICES

THIRD PARTY SERVICES

The Services contain features or functionality designed to interact and/or integrate with software, applications or services that are provided by a Person other than the Company and Predictile (“Third Party Services”). To use these features, you may be required to obtain access to such Third Party Services from their providers, pay fees to the provider of such Third Party Services and/or agree to separate service or license agreements or terms with those providers. In order to use the Services, you may be required to grant us access to your Accounts to such Third Party Services. You expressly permit the Company and Predictile to share your Content in conjunction with the Third Party Services and your Data with Third Party Service providers. The Third Party Services may import or export data related to your Account, activity and/or content and otherwise gather analytics data from you.

 

RESPONSIBILITY

The Company and Predictile are not responsible for any Third Party Services or for any act or omission of any third party. The Company and Predictile do not own, operate, or endorse any Third Party Services and does not warrant any Third Party Services. You agree to assume all risks and liabilities associated with the use of any Third Party Services. Third Party Services are operated independently of us and we do not guarantee the availability of any Third Party Services. If the provider of any such Third Party Services ceases to make the Third Party Services available for interoperation with Services, the Company and Predictile may cease providing such features or functionality without entitling you to any refund, credit, or other compensation. You agree to use the Services only in compliance with the terms and conditions associated with any Third Party Services. We advise you to check the terms of service and privacy policies for all Third Party Services to ensure compliance and determine how they may use your information.

ACCESS TO DATA BY THIRD PARTIES

If you use Third Party Services, your data may be transmitted outside of the Company and Predictile Platform system, and the provider of the Third Party Services may be able to obtain access to your Data in the platform through the platform’s application-programming interface. This may result in the disclosure, modification, or deletion of your Data by the Third Party Service provider. The Third Party Service provider and its agents may collect and use data pertaining to your configuration and use of the Third Party Service. We are not responsible for any transmission, collection, disclosure, modification, use, or deletion of your Data, as described in this section, by or through Third Party Services or their providers or any of its agents and partners.

 

DISCLAIMER OF WARRANTIES

DISCLAIMER OF WARRANTIES

All Services are provided “as is” and on an “as available” basis.  Neither the Company, nor Predictile, nor its suppliers, or representatives make any warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement.  The Company and Predictile make no representation, warranty, or guarantee that the Services will meet your requirement or expectation, that will be accurate, complete, or preserved without loss, or that the Services will be timely, secure, uninterrupted, or error-free.  The Company and Predictile do not guarantee that security measures will be error-free and will not be responsible or liable for unauthorized access beyond its reasonable control.  The Company and Predictile will not be responsible or liable in any manner for any of your properties, third party products, third party content, or non-Company services (including for any delays, interruptions, transmission errors, security failures, and other problems caused by these items), for regulated data received from you in breach of this Agreement, for the collection, use and disclosure of Data authorized by this Agreement or for decisions or actions taken (or not taken) by you based upon the Services.  You acknowledge that the Company and Predictile are not a business associate or subcontractor.  The disclaimers in this section shall apply to the maximum extent not prohibited by applicable law, notwithstanding anything to the contrary herein.  You may have other statutory rights, however, any statutorily required warranties under applicable law, if any, shall be limited to the shortest period and maximum extent permitted by law.

 

INDEMNIFICATION

BY THE COMPANY AND PREDICTILE

The Company and Predictile will indemnify, defend, and hold you harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against you to the extent based on an allegation that the Company’s and/or Predictile’s technology used to provide the Services to you infringes or misappropriates any copyright, trade secret, patent, or trademark right of a third party that is issued or registered in the United States. In no event will we have any obligations or liability under this section arising in whole or in part from any content, information, or data provided by you or other third parties. The Company and Predictile shall not be required to indemnify you in the event of: (a) modification of the Services by you in conflict with your obligations or as a result of any prohibited activity as set forth herein; (b) use of the Services in a manner inconsistent with the Documentation; (c) use of the Services in combination with any other application, product, or service not provided by the Company or Predictile if such claim would not have occurred without such combination; or (d) use of the Services in a manner not otherwise contemplated by this Agreement.

MEMBER INDEMNIFICATION

You shall indemnify, defend, and hold harmless the Company and Predictile from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Company, Predictile, or their affiliates regarding: (i) your Content or your Data; (ii) failure by you to obtain any of the necessary consents required under this Agreement; (iii) you use of the Services in violation of this Agreement; and/or (vi) violations of your legal obligations of privacy to any Person.

POSSIBLE INFRINGEMENT

If the Company and/or Predictile believe the Services infringe or may be alleged to infringe a third party’s intellectual property rights, then we may: (i) obtain the right for you (at our expense) to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If the Company or Predictile does not believe that the options described in this section are commercially reasonable, then we may suspend or terminate your use of the affected Services (with a pro-rata refund of prepaid fees for the Services).

PROCESS

The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join the defense with its own counsel at its expense.

EXCLUSIVE REMEDY

The indemnities above are the Company’s, Predictile’s, and your only remedy under this Agreement for third party infringement claims and actions.

 

LIMITATIONS OF LIABILITY AND DAMAGES

LIMITATIONS OF LIABILITY

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, PREDICTILE, OR THEIR SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST, OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY’S, PREDICTILE’S, OR THEIR SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO THE COMPANY AND/OR PREDICTILE FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION EXCLUDES ANY PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY COMPANY TECHNOLOGY, OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

 

CONFIDENTIAL INFORMATION

CONFIDENTIAL INFORMATION

Each party (the “Receiving Party”) understands that the other parties (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (together “Confidential Information” of the Disclosing Party). Such information includes, without limitation, information relating to pricing of Services, your Data, and your ID. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as permitted in this Agreement) or divulge to any third person such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can demonstrate that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (v) is required by law. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.

 

TERM AND TERMINATION

TERM

Unless otherwise defined in the Member Plan Agreement, this Agreement shall commence on the date defined in the first Member Plan Agreement and shall remain in effect through the end of the Agreement Term, unless terminated earlier pursuant to the terms of this Agreement (the “Initial Term”). To avoid disruption, this Member Plan Agreement will automatically renew at the end of the Initial Term for a period of another Term (the “Renewal Term”) unless modified or cancelled by written notice (email or letter submitted to respective business location) prior to the Agreement End Date for the initial Term.

After each Renewal Term End Date, your Member Plan Agreement will automatically renew for a period of another Term unless modified or cancelled by written notice (email or letter submitted to respective business location) prior to the Agreement End Date for each respective Renewal Term.

Payment for Services for each Renewal Term is due on the first day of the Renewal Term on a monthly recurring charge and will automatically be processed and charged to the credit or debit card that you used for the current subscription. Subscription Level Pricing may increase on Renewal of each Agreement Term from the Service Start Date.

 

PAUSE PERIOD BASED ON CRITICAL NEED

Unless otherwise defined in the Member Plan Agreement, for situations that may arise causing a critical need for the Agreement to be “Paused” by the Member, the Member may submit a written “Pause” Request (email or letter to respective Business) to the Company and at the Company’s discretion they may approve the request to Pause the Agreement. During a Pause Period, the Member’s Account status is updated to “On-Hold”, no charges are processed, and the Member is not allowed to use any Credits on their Account. Upon completion of the Pause Period, the Agreement will reactivate where it left off with regards to number of Cycles (i.e. months) remaining in the Agreement and Member has access to their full balance of Credits.

 

 

TERMINATION BASED ON BREACH

Unless otherwise defined in the Member Plan Agreement, termination of the Agreement is not allowed until the end of the current Agreement Term. However, either party may terminate this Agreement effective immediately upon written notice if the other party materially breaches a material obligation under this Agreement and does not cure the breach within thirty (30) days after receiving written notice (email or letter) thereof from the non-breaching party. Upon Termination from the Breach, Member has 60 days to use any remaining Credits on their account, if the Company is in a capable position to provide the Product or Service of the respective Plan. The Member has no recourse against Predictile for a Plan’s product or service provided by the Company.

 

 

NON-RENEWAL TERMINATION
Unless otherwise defined in the Member Plan Agreement, for a Member Plan Agreement cancelled at the end of its current Agreement period, the Member will have 60 days from the current Agreement End Date to use any remaining Credits on their Account for the respective Plan. Respective Credits are voided and the Plan is terminated 60 days after the current Agreement End Date for non-renewed Plans.

 

 

EARLY TERMINATION BASED ON CRITICAL NEED

Unless otherwise defined in the Member Plan Agreement, termination of the Agreement is not allowed until the end of the current Agreement Term. For any termination by the Member prior to the then current Agreement End Date, all remaining costs for the current Agreement Term may be charged in full (100%) and Credits will be updated for that amount on the Member’s Plan. The Member will have 60 days from the Early Termination End Date to use the respective Credits. The respective Credits are voided and the Plan is terminated 60 days after the Early Termination End Date. The only exception is, when documented, that the Member is moving more than 50 miles away from the nearest Business location.

 

 

TERMINATION BASED ON COMPANY NEED

The Company has the right at their sole discretion to terminate the Member Plan Agreement at anytime based on Company need. Regardless of any breach, issue, or no issue at all on the Member’s behalf, the Company can terminate the Agreement based on their Need. If the Company terminates the Agreement, the Company must notify the Member via email or in writing of the termination, document the termination’s Agreement End Date, and provide 60 days to the Member to use any remaining balance of Credits on the Member’s account. The Member will not be charged for any further respective Plan’s Credits and has no recourse against the Company for the termination based on Company Need.

 

 

EFFECT OF TERMINATION

Upon termination of the Member Plan Agreement for any reason, your right to access and use the Predictile Platform for your respective Plan shall terminate 60 days after the Agreement End Date. If we terminate this Agreement for your material breach, all costs defined for the Member Plan Agreement shall be immediately due and payable for and through the current Term Period.

 

 

RETURN OF CLIENT DATA

At the end of the Member Plan Agreement, you will be entitled to extract your Content and Data for a period of five (5) days following termination (the “Extraction Grace Period”). Following the Extraction Grace Period, the Company and Predictile shall have the right to delete all of your Content and Data, and Non-Anonymized Customer Data at any time and cancel your Account with us. You acknowledge and agree that archived versions of the Services may include archived copies of your Content and Data, and Non-Anonymized Customer Data, which may be retained by the Company and Predictile for an archive cycle.

 

 

SURVIVAL

Upon termination of this Agreement for any reason, you shall pay all amounts owed hereunder. All Sections of this Agreement together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason.

 

GENERAL PROVISIONS

DEFINITIONS

Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:

“Account” means your personal account on the Predictile Platform, which includes a username and password, used by you to access and use the Platform.

“Applicable Laws” means all statutes, codes, rules, regulations, by-laws, judicial, or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the Person referred to in the context in which such word is used.

“Business Partners” means affiliates, licensors, clients, customers, other users and other third parties that the Company and/or Predictile does business with.

“Client Data” means non-anonymized electronic data pertaining to the Member, the Users, and the Consumers that is collected and/or processed using the Platform, including personal information, login credentials, and other information that relates to such parties’ use of the Platform. 

“Consumer” means any customer that uses or views the Company’s Content, and can be referred to as a Member.

“Consumer Data” means the electronic data concerning the characteristics and activities of Consumer (including personal information of such Consumer) collected and analyzed by the Platform relating to such Consumer use or viewing of your Content.

“Content” means any and all content, data, and other materials including, without limitation, images, trademarks, html e-mail codes, live streams, documentation, training materials, reports, materials, files, text, logos, artwork, graphics, pictures, advertisements, works, works of authorship or any other intellectual property contained in any such materials.

“Credit” is unit purchased in an Offered Plan and is the equivalent of a service or product. # of Credits is defined for each Offered Plan and carries over to a Member Plan once a Customer purchases the Plan. When a Member Plan is charged each Cycle for a Customer (or Member), then a Credit(s) is updated on the Customer’s Account for the respective Plan. And then, the Customer can apply that Credit to their next usage of the respective service or product.

“Member” is a Consumer who subscribed to a Member Plan. They are referred to as a “Member” since they are receiving the membership benefits of the plan they subscribed.

“Member Plan” is a when a Consumer purchases an Offered Plan and the Offered Plan details become the Consumer’s (or Member’s) Member Plan. A Member Plan is specific to a Consumer and generally has the plan name, description of the service or product, number of credits per cycle, price per cycle, cycle (frequency of the charge), cycle day (day of the charge each cycle), term length (how many cycles in the plan), start date, and renew date.

“Offered Plan” is a Plan created by a Company that is offered to its Customers (or Consumers) to benefit both the Customer and the Company. An Offered Plan generally has a plan name, description of the service or product, number of credits per cycle, price per cycle, cycle (frequency of the charge), and term length (how many cycles in the plan). The benefit of the Offered Plan is that a Customer receives a significant discount for the service or product by purchasing a quantity over a longer period such as 12-months.

“Person” means a natural person or any legal, commercial, or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any person acting in a representative capacity.

“Predictile Platform” means the code, technology, and servers used in the operation and provision of the Platform Services, and includes the Documentation and Software.

“Product Overview” means the overview of the Services to be provided to a Member set out in the Member Plan Agreement.

“Users” means the Company’s employees, representatives, consultants, contractors, or agents who are authorized to use the Services and Platform for the Company’s benefit and have unique user identifications and passwords for the Platform.

 

ASSIGNMENT

You may not assign this Agreement or any of the rights or obligations arising thereof, in whole or in part, to any third party without our prior written consent by the Company and Predictile. We may assign this Agreement, as well as any of our obligations or rights, to a successor entity resulting from a merger, acquisition or consolidation involving you, the Consumer.

 

 

CONFLICT

In the event of any conflict between these Terms of Service and the Member Plan Agreement, the terms of the Member Plan Agreement shall govern.

 

 

NOTICE

Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery via letter to a respective Business location; (ii) when received by the addressee if sent by an internationally recognized overnight courier (receipt requested) at a respective Business location; (iii) the second business day after mailing to a respective Business location; or (iv) the first business day after sending by email, except that email shall not be sufficient for notice regarding a Claim. Notices shall be sent to the parties as set forth on the signature page of this Agreement or as otherwise agreed to by the parties in writing.

 

 

PUBLICITY

You permit us to use you as a Member, where appropriate with regards to our Privacy Policy, and use your image and likeness for our promotional and marketing use during and after the Member Plan Agreement Term.

 

 

FORCE MAJEURE

Except for your obligation to pay fees for the Services, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include, without limitation, accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism or the stability or availability of the Internet or a portion of it.

 

 

CHANGES AND AMENDMENTS

The Company and Predictile reserve the rights to make modifications and amendments to these Terms of Service at any time.

 

 

RELATIONSHIP OF THE PARTIES

The parties are independent of each other. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship.

 

 

GOVERNING LAW; VENUE;

The laws of the state of Georgia, USA shall govern the Agreement. The jurisdiction and venue for all disputes hereunder shall be the state and federal courts in Georgia.

If you have any questions about these Terms of Service or if you wish to provide any feedback with respect to the Services and/or Platform, please email us at: info@predictile.com.

 

Last Updated: November 1, 2020

Predictile, LLC
303 Scioto Court

Johns Creek, GA 30097

Info@Predictile.com