Terms & Conditions

General Terms and Affirmation

Please read these terms and conditions (“Terms”) carefully.  These Terms and Conditions apply to any website (“Site”) operated by Pro-ficiency, LLC (“Pro-ficiency, LLC,” “us”,” we”, “our”).  These Terms constitute the User Agreement and Terms of Service (hereafter the “Terms and Conditions” or this “Agreement”) between us and any person, customer, or entity (referred as the “user”, “you,” “your,”) utilizing the Site and any products, features, and services provided thereon or as described herein (the “Services”). These Terms and Conditions do not create any agency, partnership, or joint venture between us and user. By signing up for an account through us or any websites, APIs, or mobile applications owned or operated by us, the user has read and consents to these Terms and Conditions. The user also agrees to the relevant privacy policy. These Terms and Conditions may be amended and updated from time to time at our sole discretion. Revised versions will be considered effective as of the date and time posted on the Site. Your access to or use of the Services or Site indicates your acceptance of these Terms and Conditions. You are agreeing to use the Site and the Services at your own risk.

Terms found in this Agreement that relate to the Services or our content, features, or functionality that are not available in your home jurisdiction are not applicable to you unless and until they become available to you. Certain Services available to you in your home jurisdiction may not be available to you when traveling outside of your home jurisdiction.

USER AFFIRMS HE/SHE IS OVER THE AGE OF 18 OR THE LEGAL AGE OF MAJORITY WHERE THE USER RESIDES IF THAT JURISDICTION HAS AN OLDER AGE OF MAJORITY, AS THE SERVICES ARE NOT INTENDED FOR CHILDREN UNDER AGE 18 OR THOSE THAT HAVE NOT REACHED THE AGE OF MAJORITY. YOU WARRANT THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT AND WE ASSUME NO RESPONSIBILITY FOR LIABILITIES RELATED TO AGE MISREPRESENTATION.

Conditions of Use

If you do not want to be bound by the terms of this Agreement, you are advised to leave the Site accordingly. We only grant use and access of the Site, and the Services to those who have accepted its terms which include:

• The content of Site is for your general information and use only. It is subject to change without notice.
• This Site uses cookies to monitor browsing preferences. If you do allow cookies to be used, the following personally identifying information may be stored by us for use by third parties including but not limited to:
• Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness, or suitability of the information and materials found or offered on the Site for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
• Your use of any information or materials on this Site is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services, or information available through this Site meet your specific requirements.
• Unauthorized use of this website may give rise to a claim for damages and/or be a criminal offense by the appropriate third parties and/or enforcement agencies.
• From time to time this Site may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).

Privacy policy

Before you continue using our Site, we advise you to read the     privacy policy associated with the relevant platform (“Privacy Policy”) which may be found here [link to privacy policy] regarding user data collection. It will help you better understand our practices.

User Obligations

To use the Services, you will need to register an account through the Site. During the registration process, we will ask you for certain information, including but not limited to, your name, address and other personal information to verify your identity. We may, in our sole and absolute discretion, refuse to maintain an account for you. You hereby accept and acknowledge that you: (a) are of legal age in your respective jurisdiction to agree to this Agreement; and (b) have not previously been suspended or removed from using the Services.

By using your account, you agree and represent that you will use the Services for yourself and you may not use your account to act as an intermediary or broker for any other third party, person or entity. Unless expressly authorized by us, you are only allowed to have one account and are not allowed to sell, borrow, share, or otherwise make available your account or any detail necessary to access your account to people or entities other than yourself. You are solely responsible and liable for maintaining adequate security and control of any and all usernames, email addresses, passwords, two-factor authentication codes or any other codes or credentials that you use to access the Services. Your account must not contain misleading or fraudulent information. Creating false information for your account, falsifying your country of origin or providing fraudulent identification documents is strictly prohibited.

• During the registration of your account, you agree to provide us with the information we request for the purposes of identity verification and permit us to keep a record of such information. You will need to complete certain verification procedures before you are permitted to use the Services, which procedures may be modified as a result of information collected about you on an ongoing basis. The information we request may include certain personal information, including, but not limited to, your name, address, telephone number, e-mail address, date of birth, social security number, taxpayer identification number, a government identification, title, location of residency, employer, demographics, social and professional profile, services offered, education, publications, presentations, and/or professional photo.

In providing us with this or any other information that may be required, you confirm that all of the information is true, accurate and not misleading. You agree to promptly keep us updated if any of the information you provide changes.

To use the Services you may need to fulfill certain legal obligations in your country and/or state of residence. By accepting the terms in the Agreement, you confirm that you have reviewed your local laws and regulations and that you are aware of, and fulfill, any and all such obligations.

We may not make all of the Services available in all markets and jurisdictions and may restrict or prohibit use of all or a portion of the Services from certain jurisdictions.  You must not attempt to circumvent any restrictions imposed via the Services, such as by obscuring your IP address or submitting any inaccurate information regarding your location.

Intellectual Property

The Site contains our intellectual property collectively defined as “Intellectual Property.” “Intellectual Property” is further defined as Intellectual Property owned, commissioned, developed, or created by us. Certain Intellectual Property may exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process and operation of which, in a unique combination, affords a competitive advantage and may be a protectable secret.

The term “Intellectual Property” includes, but is not limited to (collectively and separately): (a) registered and unregistered trademarks and service marks promoting any good or service worldwide; (b) user interfaces, functions, and design; (c) process design; (d) lists; (e) pricing information; (f) business strategy; (g) financial information; (h) marketing and advertising strategies; (i) sales techniques; (j) methods of conducting business; (k) technology platforms; (l) software; (m) domain names, web sites, publications, databases, and other content; (n) business processes material to the operation of the business; (o) symbols; (p) artwork; (q) copyrighted work, whether registered or unregistered; (r) franchise systems; (s) object code; (t) patents and patent applications including any abandoned applications; (w) pending trademark and service mark applications; (u) all products and services currently produced, marketed, licensed, sold or distributed by us; (z) all products and services currently under development that we intend to make commercially available; (aa) inventions, whether or not patentable, whether or not reduced to practice or whether or not yet made the subject of a pending patent application or applications; (bb) ideas and conceptions of potentially patentable subject matter, including, without limitation, any patent disclosures, whether or not reduced to practice and whether or not yet made the subject of a pending patent application or applications; (cc) trade secrets and confidential, technical or business information (including ideas, formulas, compositions, designs, inventions, and conceptions of inventions whether patentable or unpatentable and whether or not reduced to practice); technology (including know-how), manufacturing and production processes and techniques, methodologies, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information and user information and demographic data provided by You and/or collected from publicly available information by Us on You.

You agree to not, directly or indirectly:

(1) acquire, use or disclose Intellectual Property, or any element of the Intellectual Property to another person(s), or

(2) engage in acquiring, or attempting to acquire, Intellectual Property by improper means;

(3) engage in improper use of the Site, including creating fictitious user identities or accounts, or acts of espionage (whether through electronic or other means).

All rights, title, interest in and ownership of the Intellectual Property shall remain our sole property.  Nothing in this Agreement conveys any right or license to use Intellectual Property other than as expressly provided herein.

You acknowledge and agree that you will not, directly or indirectly, use any Intellectual Property in any way detrimental to us. You agree to keep all Intellectual Property in confidence and, except as expressly provided in this Agreement, will not disclose, or cause to be disclosed, Intellectual Property to anyone without our prior written consent. You agree that you will not use, or permit others to use, Intellectual Property for any purpose other than use of the Services for personal use. You will use all necessary efforts and safeguards to ensure that there is no disclosure, dissemination or unauthorized use of Intellectual Property.

 

User Contributions

The Site may contain interactive features (collectively, “Interactive Services“) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post“) content or materials (collectively, “User Contributions“) on or through the Site.

All User Contributions must comply with the terms set out herein in this Agreement.

Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any lawful purpose in any medium worldwide.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not us, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site.

User Accounts

User takes responsibility for all activities that occur under its use of the Services, and User accepts all risks of any authorized or unauthorized access to the Site to the maximum extent permitted by law. User is solely responsible for its own conduct while accessing or using the Services and the Site, and for any consequences thereof. User agrees to use the Services and Site for purposes that are legal, proper and in accordance with these Terms and Conditions and any applicable laws or regulations. By way of example, and not as a limitation, User may not, and may not allow any third party to: (i) send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content; (ii) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) impersonate another person (via the use of an email address or otherwise); (iv) upload, post, transmit or otherwise make available through the Services any content that infringes the intellectual proprietary rights of any party; (v) use the Services to violate the legal rights (such as rights of privacy and publicity) of others; (vi) engage in, promote, or encourage illegal activity ; (vii) interfere with other users’ enjoyment of the Services or Site; (viii) exploit the Services for any unauthorized commercial purpose; (ix) modify, adapt, translate, or reverse engineer any portion of the Services or Site; (x) remove any copyright, trademark or other proprietary rights notices contained in or on the Site or any part of it; (xi) reformat or frame any portion of the Site; (xii) display any content on the Site that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; (xiii) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Site or content posted on the Site, or to collect information about its users for any unauthorized purpose; or (xiv) create user accounts by automated means or under false or fraudulent pretenses. The user shall indemnify and hold us harmless against and from any claim, loss, damage, or expense (including attorneys’ fees and costs for the underlying investigation) arising from any breach or misrepresentation of this section. User is solely responsible for all damages and legal liability that he or she may incur.

If you think there are any possible issues regarding the security of your account on the Site, inform us immediately so we may address them accordingly.

We reserve all rights to terminate accounts, edit or remove content and cancel orders at our sole discretion.

Disputes

All matters relating to the Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of Delaware without giving effect to any choice or conflict of law provision or rule.

Further, any dispute, controversy, difference or claim arising out of or relating to these Terms and Conditions or relating in any way to the User’s use of the Site or the Services, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding any contractual or non-contractual obligations arising out of or relating to these Terms & Conditions shall be commenced in accordance with the Arbitration section below.  Notwithstanding the foregoing, Pro-Ficiency, LLC and User agree that we may bring suit in court in the State of Delaware (federal or state), to enjoin infringement or other misuse of our Intellectual Property rights. The prevailing party in any court action shall be entitled to costs and reasonable attorneys’ fees.

 

Arbitration

You and Pro-Ficiency, LLC agree that any dispute arising out of or relating to this Agreement or the Services, shall be finally settled in binding arbitration, on an individual basis, in accordance with the American Arbitration Association’s rules for arbitration of consumer-related disputes (accessible at https://www.adr.org/rules). Subject to applicable jurisdictional requirements, consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration so long as their matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis.

CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. USER ACKNOWLEDGES THAT, BY AGREEING TO THESE TERMS, EACH PARTY WAIVES THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.

The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies to the arbitration. The arbitration will be conducted by a single, neutral arbitrator and shall take place in the State of Delaware or another mutually agreeable location, in the English language. The arbitrator may award any relief that a court of competent jurisdiction could award, including attorneys’ fees when authorized by law, and the arbitral decision may be entered as a judgement and enforced in any court of law. At your request, hearings may be conducted in person or by telephone and the arbitrator may provide for submitting and determining motions on briefs, without oral hearings. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.

If any part of this Agreement is held by any arbitrator or court of United States to be invalid or unenforceable in whole or in part, the validity or enforceability of the other sections of these terms and conditions shall not be affected. Any headings contained in this Agreement are for informational purposes only and are not enforceable provisions of this Agreement.

Indemnification

You agree to indemnify, defend, and hold us harmless from any liability, loss, claim and expense, including attorney’s fees, related to your violation of these Terms and Conditions or use of the site and Services. Nothing in this Agreement shall affect any non-waivable statutory rights that apply to you. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

Disclaimer

EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS & CONDITIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRO-FICIENCY, LLC, ITS AFFILIATES, AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. PROFICIENCY, LLC, ITS AFFILIATES, AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION, FAILURE TO STORE, OR ANY LOSS OF ANY USER DATA DERIVED, MAINTAINED, OR TRANSMITTED THROUGH USE OF THE SITE AND SERVICES. THE USER IS SOLELY RESPONSIBLE FOR SECURING ITS DATA. NEITHER PRO-FICIENCY, LLC, ITS AFFILIATES, NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SITE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. PRO-FICIENCY, LLC, ITS AFFILIATES, AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR ANY LOSSES OR OPPORTUNITY COSTS RESULTING FROM THIRD-PARTY SOFTWARE ISSUES, WHICH MAY IN TURN RESULT IN THE INABILITY TO ACCESS THE SITE AND SERVICES.

Limitation of Liability

THE AGGREGATE LIABILITY OF PRO-FICIENCY, LLC, ITS SUPPLIERS, CONTRACT PARTNERS, AFFILIATES, AND THE LIKE (ALTOGETHER THE “PRO-FICIENCY PARTIES”) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER CONTRACT, WARRANTY, TORT, STRICT LIABILITY, MALPRACTICE, INDEMNITY, AND/OR OTHERWISE, AND WHETHER OR NOT ARISING IN WHOLE OR IN PART FROM THE USER’S FAULT, NEGLIGENCE, OR OMISSIONS, SHALL NOT EXCEED THE AMOUNT PAID BY THE USER FOR ONE MONTH ACCESS TO THE SERVICES. THE PRO-FICIENCY PARTIES SHALL NOT IN ANY CASE BE LIABLE FOR ANY LOST OPPORTUNITY COSTS, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PRO-FICIENCY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. THE PRO-FICIENCY PARTIES SHALL NOT BE LIABLE TO ANY THIRD PARTY FOR ANY CLAIM, LIABILITY OR DAMAGES RESULTING FROM OR RELATING TO YOUR USE OF THE SERVICES OR ANY RELIANCE THEREON.  THE PRO-FICIENCY PARTIES ARE NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE, LOSS OF USE OF THE SERVICES, FAILURE OF THE SERVICES TO OPERATE WITHOUT INTERRUPTION, LOSS OF DATA, COSTS OF RE-CREATING LOST DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE AND RELIANCE ON THE SERVICES.  YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THIS AGREEMENT IS CONDITIONED ON YOUR REPRESENTATION THAT YOU HAVE ACCEPTED AND AGREE TO BE BOUND BY THIS AGREEMENT AND THESE PROVISIONS AND DISCLAIMERS. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO VIOLATIONS OF THE PRO-FICIENCY PARTIES’ INTELLECTUAL PROPERTY RIGHTS OR THE USER’S PAYMENT OBLIGATIONS.

Force Majeure

Pro-Ficiency, LLC and its affiliates will not be liable for any failure or delay in performance of any obligation under these Terms and Conditions where the failures or delay results from any cause beyond reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

Your Comments, Concerns, and Communications with Us

This website is operated by Pro-Ficiency, LLC, located at 4242 Six Forks Road, Suite 1550, Raleigh, NC 27609.

All other feedback, comments, requests for technical support, and other communications relating to the Site should be directed to: privacy@pro-ficiency.com.  This includes requests for the type of data collected, how the data is used and requests to delete, update, edit, or modify data.

Notice for California Users: 

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

You may contact us at Pro-Ficiency, LLC, located at 4242 Six Forks Road, Suite 1550, Raleigh, NC 27609.

We reserve the right to edit, modify, and change this Agreement at any time. We shall let our users know of these changes through electronic mail. This Agreement is an understanding between Pro-ficiency, LLC and the user, and this supersedes and replaces all prior agreements regarding the use of this Site.