ProFund™ Contractor Terms of Service

Last Updated: January 12, 2023

Thank you for choosing ProFund™ for your business. This Contractor Terms of Service is a legal agreement between you and ProFund™. When you use our products and services you agree to our terms, so please read this Contractor Terms of Service (“Terms” or “Agreement”) carefully as it contains important information regarding your legal rights and obligations. Certain capitalized words below are defined in Section 14 (Definitions).

ProFund™ is a browser-based, technology platform provider of sales automation and project management software for professional contractors and homeowners and includes integrated access to personal loan offers through a multi-lender financial platform managed by a third party ("Software Service", “Service” or “Services”).  The Software Services are designed specifically for professional contractors who provide home improvement services. You may access our Software Service via the contractor login page on our website.

THIS AGREEMENT APPLIES TO ANY USE OF AND ACCESS TO THE SERVICES BY YOU, YOUR EMPLOYEES AND YOUR AFFILIATES. BY ACCESSING OR USING THE SERVICES (OR ENABLING AN EMPLOYEE, OWNER OR AFFILIATE TO ACCESS OR USE THE SERVICES), YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE ANY SERVICES.

The English language version of this Agreement and any notice or other document relating to this Agreement shall prevail if there is a conflict.

1. General Terms
2. Services
3. Your Responsibilities
4. Intellectual Property Rights
5. Data Ownership and Use
6. Confidential Information
7. Term, Termination and Suspension
8. Warranties and Disclaimer
9. Indemnification
10. Limitations and Exclusions of Liability
11. Electronic consent
12. Marketing Guidelines
13. Miscellaneous
14. Definitions

1. General Terms

This is a legal agreement and you represent that you have authority to make these commitments on behalf of your organization.

1.1

This Agreement is a binding legal agreement between you and ProFund™ (“ProFund™”, “we”, “us” or “our”). Employees or family members of ProFund™, affiliates of ProFund™, or any Participating Supplier are not eligible to create an account for, access or use the Services (“Related Party”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you are not a Related Party; you have the legal authority to bind that entity and its Affiliates to this Agreement; the entity is actively engaged in a trade or business and all references to “you” and “your” in this Agreement are referring to that entity. You and ProFund™ are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.

This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement (including registration as a user of the Services) or (b) the date you (or an employee or Affiliate) first access or use the Services.

Subscription: You are signing up for a ProFund™ subscription plan that includes a free trial period followed by a recurring monthly subscription. Each subscription specifies monthly user and property report limits. Each subscription includes a monthly flat rate, plus additional per unit charges for any usage above the specified monthly limitations. The monthly flat rate is charged at the beginning of each period and the additional charges for excess usage, if any, are charged at the beginning of the period following the period in which the excess usage occurred. The cost of your subscription and the specific details related to usage limitations and features for each type of subscription may be found at https://www.profund.net/pricing.

Free Trial Period: Your free trial period is 14 calendar days and begins immediately upon signup. You will receive a trial-ending reminder 7 days prior to the end of your trial period.

Billing Date: Your first subscription payment will be billed and charged at the end of your free trial. Your monthly recurring subscription will be billed and charged thereafter on the same day each subsequent month until canceled.

Cancellation: You may cancel your monthly or free trial subscription at any time by logging into your account, navigating to the Billing & Plan section of your Admin page, clicking on Manage Subscription and following the cancellation procedures described there. If you need help, feel free to contact us at info@profund.net or 478-776-3863.

Cancellation of Free-Trial Subscription: If you cancel your subscription prior to the end of the free trial period, your payment method will not be charged and your account access will end immediately.

Cancellation of Monthly Subscription: If you cancel your subscription after the free trial period, your cancellation will take effect the first day of the period following the current billed period and your account access will continue until the end of the period during which you cancelled your subscription. Your payment method will not be charged for a recurring monthly subscription fee; however, you may be charged for any unbilled subscription usage overages incurred prior to cancellation. You will not be eligible for a refund for monthly subscription fees paid prior to the month the cancellation takes effect.

The Software Services are made available on a monthly subscription basis and may be subsidized in part by a participating materials supplier or other third party with whom you have an active account in good standing for the purchase of goods and/or services (“Participating Supplier”).  In order to obtain a reduced subscription rate from a Participating Sponsor you must enter your active account number with the Participating Supplier when prompted at the time of registration.  Eligibility for sponsorship with any Participating Supplier is determined by the Participating Supplier and may be changed or canceled at any time, including if you fail to remain in good standing with the Participating Supplier or your account number with such Participating Supplier is canceled.

1.1.1

Our Privacy Policy is also part of this Agreement. Our Privacy Policy explains how we collect and use information that’s submitted to the Services. By using the Services, you are indicating that you’ve read the Privacy Policy and agree to its terms. This Agreement applies to any use of the Services.

1.1.2

In addition, if you (or any third party on your behalf) uses our APIs, you will be subject to separate terms and conditions set forth in a specific API Agreement, as may be updated by ProFund™ from time to time and/or any other terms designated by ProFund™.

1.1.3

Certain additional terms apply to personal information that pertains to residents of certain states, including CA. To the extent that ProFund™ processes Your Data with respect to Personal Information the additional terms may apply.

1.2

Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to https://profund.net/contractor-terms-of-service (or such other URL as specified by ProFund™), as may be updated by ProFund™ from time to time, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services. You may cancel your account at any time from Admin page within the service. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The legend at the top of the Agreement indicates when it was last changed. You'll always be able to access the current agreement online.

1.3

Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up for, access, or use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.

2. Services

2.1

Software Services. The section describes our uptime commitments for the software.

2.1.1

Access and Service Levels. ProFund™ will make the Services to which you have registered available to you, subject to the terms and conditions of this Agreement. ProFund™ makes no commitment or representation to you with respect to the period or percentage of time in which the Software Service will be available. We may temporarily suspend your access for things like scheduled maintenance or if a natural disaster occurs. We may also change or discontinue features or functions of our Services at any time. If the access and service levels you experience are not satisfactory to you, you may cancel your subscription at any time from the Admin page within the service.

2.1.2

Changes to Services. Notwithstanding Section 2.1.1, in addition to all other rights of ours set forth herein, we reserve the right to suspend any Services (a) in connection with a Force Majeure event (as described in Section 13.8), (b) if we believe any malicious software is being used in connection with your account, or (c) during planned maintenance. In addition, we reserve the right to change, suspend or discontinue any features, components, or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.

2.2

Third-Party Offerings. We are not responsible for any third-party products that are integrated with or used in connection with the Services. Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. Use of integrated finance features are Third-Party Offerings and are subject to additional lender and/or access fees that may be collected by ProFund™ for the Third-Party. If you use such Third-Party Offerings for which a lender and/or access fee is due, you authorize ProFund™ to collect such fee from a payment request you initiate or directly via an invoice. The availability of any Third-Party Offerings through the Services does not imply ProFund™’s endorsement of or affiliation with the provider. ProFund™ does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third-Party Offerings. ProFund™ has no obligation to monitor or maintain Third Party Offerings and may disable or restrict access to any Third-Party Offerings at any time. By using or enabling any Third-Party Offering, you are expressly permitting ProFund™ to disclose Your Data or other information to the extent necessary to utilize the Third-Party Offering. YOUR USE OF THIRD-PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY OFFERINGS).

2.3

Support Services. As part of the Services, you will have access to ProFund™’s standard support services accessible from our Website which may include chat, self-guided tutorials, video training or other resources.

2.4

Marketing Services. When you register to use our Software Service, your business may be provided the opportunity to participate in promotional programs (“ProFund™ Promote”), which are designed to promote your business and attract customers. Future enrollment in ProFund™ Promote will require you to review and agree to the applicable ProFund™ Promote terms and conditions applicable to the specific promotional program for which you enroll (“ProFund™ Promote Terms”). ProFund™ reserves the right to charge fees for ProFund™ Promote in accordance with the ProFund™ Promote Terms. If you enroll in ProFund™ Promote, you agree to pay all applicable fees for ProFund™ Promote in accordance with this Agreement and the ProFund™ Promote Terms. In the event of any conflict between this Agreement and the ProFund™ Promote Terms applicable to the specific promotional program in which you enroll, if any, the ProFund™ Promote Terms will apply.

2.5

Trial and Beta Services. ProFund™ may in its sole discretion offer trial or beta Services from time to time. Notwithstanding anything to the contrary herein: (a) any trial or beta Services are provided “AS IS” with no warranties of any kind; and (b) ProFund™ may discontinue any trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, Services that have not been accessed or used for six (6) consecutive months may be terminated by us. ProFund™ will have no liability for any harm or damages suffered by you or any third party in connection with any trial or beta Services.

2.6

Processing Payment Requests. The Services include a feature that permits you to request a down payment or final payment be made electronically directly from a lender or a borrower to your bank account upon authorization by a borrower with whom you have entered a contract to provide home improvement or other services. Each such payment request requires authorization from the respective borrower. A down payment or final payment made directly from a borrower may be made from the borrower’s bank account or Project Account. In addition, the Services include a feature that permits you to make a payment on a materials invoice due from a Participating Supplier. An invoice payment may be made as a reduction from a final payment or directly from your bank account upon your request and approval. In each such case, a request for payment is initiated through the Services but processed by a third-party payment processor (“Payment Processing Services”). Payment Processing Services are provided by third-party payment processing partners as Third-Party Offerings and any procurement by you or your Affiliates may be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the lender. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable rules, policies, laws, and regulations, at all times while using such Payment Processing Services. Neither ProFund™ or any third-party, including a lender or processor, shall be responsible for any payment or obligation due you from the borrower under a home improvement agreement between you and the borrower or related homeowner due to the failure of the borrower to approve such payment request or otherwise.

2.6.1

Processing Fees and Credits. When making a request for payment through the Services you may be charged a processing fee. The processing fee may be reflected as a reduction in the net payment made to your bank account or may be separately invoiced to you for payment (“Payment Processing Fee”). A Participating Supplier may offer a specific discount on invoices paid from within the Services. If such is applicable to you, then if you request payment of an invoice from within the Services, ProFund™ will provide you with a credit for a portion of the Payment Processing Fee on any payment request in which you designate a portion of such payment to be applied to a materials invoice for materials ordered from a participating supplier. The amount of the credit shall not exceed two percent (2%) of the invoice amount paid (“Processing Fee Credit”).

2.6.2

Payment Errors. If you believe a payment has been processed in error, you must provide written notice to ProFund™ within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute ("Payment Error Notice"). If the Payment Error Notice is not received by ProFund™ within such thirty (30) day period, the payment will be deemed final.

2.6.3

Transaction Reversal and Your Liability. You are solely responsible for you and your end users’ payment request activity initiated through the Services, including, without limitation, any fraudulent activity. ProFund™ has no obligation to ensure that the funds required to complete a payment request will be available. Your customer may have certain rights that permit him/her to cause a reversal of a completed ACH transaction in which you received payment. Any payment sent or received by you or your end users may: (a) be reversed in accordance with our third-party payment processor or its Financial Institution Partners’ risk management policies, (b) be reversed in accordance with Applicable Law, including without limitation, by ACH return as defined under the Nacha Rules, (c) fail due to your error or end user error, (d) fail due to the provision of inaccurate information by you or your end user; or (e) be canceled or rejected by an end user or the end user’s financial institution (each, a “Reversal”). Except for any Reversal made in error by our third-party payment processor, you are liable to the third-party payment processor and its Financial Institution Partners for any and all losses caused by Reversals, including unauthorized or erroneous activity initiated by you or your end users, whether through misconduct, negligence, error, or otherwise.  You authorize ProFund™, our third-party payment processor and its Financial Institution Partners to recover any such amounts due by debiting the available balance in your account or to recover such amounts from prospective payment transfers, if any. In conjunction therewith, you authorize ProFund™, its third-party payment processor and its Financial Institution Partners to take any of the following actions to recover the remaining amounts from you: (x) debit your Payment Account(s); (y) request immediate payment from you, and, if payment is not received timely, engage in collection efforts; and (z) pursue any rights or remedies otherwise available, including, without limitation, suspension and/or termination of the Services for non-payment or by terminating this Agreement.

3. Your Responsibilities

You are responsible for ensuring that your Affiliates and End Users comply with the terms of this agreement and applicable laws.

3.1

Payment of Fees and Taxes

3.1.1

You will pay the Fees applicable to your subscription to the Services (“Subscription Fees”), including overage fees for any excess users and/or profiles created, (“Subscription Overage Fees”) and any other applicable fees, including but not limited to payment processing fees (“Transaction Fees”) and any fees relating to your purchase or use of any add-on products or services, including Third Party Offerings (“Additional Fees”). Together, the Subscription Fees, Subscription Overage Fees, Transaction Fees and the Additional Fees are referred to as the “Fees”.

3.1.2

You must keep a valid payment method on file with us to pay for all incurred and recurring Fees. ProFund™ will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”), and ProFund™ will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. All Fees and other charges are in U.S. dollars and all payments will be in U.S. currency.

3.1.3

Subscription Fees are paid in advance and will be billed in 30-day intervals (each such date, a “Billing Date”). Subscription Overage Fees are paid in arrears at the Billing Date for overages that occurred in the immediately preceding billing period. Transaction Fees and Additional Fees will be charged from time to time as incurred or otherwise at ProFund™’s discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Primary Email Address provided. Also, an invoice will appear on the Admin section of your ProFund™ account. Users have fifteen (15) days to bring up and settle any issues with the billing of Subscription Fees.

3.1.4

If we are not able to process payment of Fees using an Authorized Payment Method, we may make subsequent attempts to process payment using any Authorized Payment Method. If we are unable to successfully process payment of Fees using an Authorized Payment Method we may suspend and revoke access to your Account and the Services. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle.

3.1.5

All Fees are exclusive of applicable federal, state, local or other governmental taxes now in force or enacted in the future (“Taxes”). You are responsible for all applicable Taxes that arise from or because of your subscription to or purchase of the Services. To the extent ProFund™ charges these Taxes, they are calculated using the tax rates that apply based on the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Payment Method. If you are not charged Taxes by ProFund™, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.

3.1.6

For the avoidance of doubt, all sums payable by you to ProFund™ hereunder will be paid free and clear of any deductions or withholdings whatsoever. Other than Taxes charged by ProFund™ to you and remitted to the appropriate tax authorities on your behalf, any deductions or withholdings that are required by law will be borne by you and paid separately to the relevant taxation authority. ProFund™ will be entitled to charge the full amount of Fees stipulated hereunder to your Authorized Payment Method ignoring any such deduction or withholding that may be required.

3.2

Liability for Affiliates and End Users. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by ProFund™, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.

3.3

Fair Lending Requirements and Best practices. The Services include “one-click” access to third-party financial services that are Third-Party Offerings hereunder, including the ability for you to send a link to a prospective borrower that permits the prospective borrower to participate in a search and matching service for the purpose of finding loan offers. ProFund™ is not a lending institution, loan broker, agent, advisor or other financially related service provider itself. Any financial or lending-related discussions initiated or held with a prospective borrower by you, your employees, agents or affiliates, including the offering of financing or the offer to provide access to financing, must comply with fair lending requirements, best practices and with any merchant agreement you have entered into with a lender or lender platform provider.

3.3.1

You agree to follow and comply with the following customer engagement guidelines:
a. Do not discuss with a prospective borrower the likelihood of his or her approval for a loan
b. Do not provide any misleading, confusing or incomplete information regarding loan offers including interest rates or any terms and conditions.
c. Do not obtain credit reports on borrowers.
d. Do not add any specific fee to prices charged to a specific borrower for applying for or using a loan.
e. Do not discriminate amongst borrowers.
f. Do not take advantage of or influence to enter a financial transaction any vulnerable person, including specifically someone who is elderly and/or physically or mentally disabled or impaired and may be incapable of making a sound financial decision.
g. Do not engage in unfair, deceptive or abusive acts.
h. Do not engage with or contract with any person not of legal age or who is not legally competent.

3.4

Data, Unauthorized Access, and Maintaining Networks.  You are responsible for providing accurate data and collecting and protecting that data as required by law. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify ProFund™ promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.

3.5

Restrictions on Use. You agree that you and anyone you’re responsible for in this Agreement will not violate the Agreement or engage in any of the prohibited conduct. You and your Affiliates and End Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts, agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use the Services to send unsolicited electronic messages (aka spamming); or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services.

3.6

User Names and Passwords. You will keep all user names and passwords confidential. ProFund™ may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of ProFund™. You, and not ProFund™, are responsible for any use or misuse of user names or passwords associated with your account.

4. Intellectual Property Rights

ProFund™ retains all right to our own Intellectual Property.

4.1

ProFund™ Intellectual Property. ProFund™ or its affiliates own all right, title and interest in and to the Services, the ProFund™ Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, ProFund™ and its affiliates reserve all rights, title and interest in and to the Services, the ProFund™ Data and Aggregated Data, including, without limitation, all related intellectual property rights. As between you and ProFund™, all ProFund™ Marks are owned by ProFund™ or its affiliates. You agree not to display or use any ProFund™ Marks in any manner without ProFund™’s express prior written permission. Any trademarks, service marks and logos associated with a Third-Party Offering may be the property of the third-party provider, and you should consult with their trademark guidelines before using any of their marks.

4.2

License Grant to You. You have a limited license to use the Services as outlined in this Agreement. You may not do anything expressly prohibited in this section. Subject to the terms and conditions of this Agreement, ProFund™ hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by ProFund™ in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.

4.2.1

Homeowner Profile Data. The Services include generating a homeowner profile consisting of demographic data pertaining to the homeowner, as well as data pertaining to the residence of the homeowner. This data may include the age group of the homeowner, years in home, proprietary qualitative scoring of the homeowner’s buying styles, and size and condition of the roof, among other items. Your use of this data is restricted to viewing only while logged in to the Software Service and without limiting other provisions and restrictions of use set forth in this Agreement, you are specifically prohibited from sharing, copying, displaying or in any other manner or method allowing any person not an End User under your account to view such data, including, specifically, the homeowner. To the extent the Services include creation of a specific property report (“Property Report”) derived from the homeowner profile data and designed for the specific purpose of presenting or sharing with a homeowner, then in such circumstance where a Property Report has been generated to be presented to a homeowner, the restriction on use of the referenced data contained herein shall not apply to the extent of the data included in the specific Property Report.

4.3

License Grant to ProFund™. You grant us a license to use your feedback, trademarks and logos in connection with providing the Services and for marketing your business and ProFund™. You hereby grant to ProFund™ and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (a) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or ProFund™’s or its affiliates’ business(es); and (b) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, (y) for marketing and promotional purposes in connection with ProFund™’s business, and (z) for Marketing Services. ProFund™ agrees that any use by ProFund™ of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to ProFund™ or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.

4.4

Intellectual Property Rights of Third-Parties.  Any information and data submitted to the Services must not violate the intellectual property rights of third-parties and infringement of such is prohibited by our Terms of Service.

5. Data Ownership and Use

You own all data you provide to us, but you also grant us a license to use it for certain purposes, for example, to improve our products and services.

5.1

Your Data. As between you and ProFund™, you own all right, title and interest in Your Data. You hereby grant to ProFund™ a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing ProFund™’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to ProFund™ that you have all rights necessary to grant the licenses in this Section 5.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.

5.2

ProFund™ Data. Notwithstanding Section 5.1, all right, title and interest in any data or information collected by ProFund™ independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information ProFund™ obtains about End Users through the Services (whether the same as Your Data or otherwise), will be solely owned by ProFund™ (collectively, “ProFund™ Data”).

5.3

Aggregated Data. ProFund™ reserves all rights to Aggregated Data. You agree ProFund™ owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit ProFund™ or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.

5.4

Personal Information. Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree that you have read and accept our Privacy Policy. Without limitation, you acknowledge and agree that ProFund™ may process Your Data for the purpose of providing the Services and related functions, such as billing and customer or End User support, as well as to send direct marketing communications to your representatives’ or End Users, data science and product or service improvement and reporting. You represent and warrant that You are authorized to process Your Data and make such data available to ProFund™ for uses as set out in the Agreement and Privacy Policy, including through appropriate notice, consent and by your referring individuals, such as End Users, to our Privacy Policy (notwithstanding ProFund™’s ability and right, to which You agree, to request consent, and provide notice and its Privacy Policy separately to individuals).

5.5

Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.

5.6

Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that ProFund™ has no obligation whatsoever to resolve or intervene in such disputes.

6. Confidential Information

You and ProFund™ will protect each other’s Confidential Information and only use it to fulfill obligations stated in this Agreement. A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 6 will restrict ProFund™ with respect to ProFund™ Data or Aggregated Data.

7. Term, Termination and Suspension

7.1

This Agreement begins when you first use our Services and continues so long as you use our Service or have an account with us, whichever is longer. Paid accounts will continue for the subscription period and will be renewed in accordance with Section 1.

If you breach this Agreement, ProFund™ may, at its option: (a) terminate this Agreement immediately, with or without advance written notice; (b) suspend, delete, or limit access to your account (and other accounts you control) or any content within it; and (c) to the extent permitted by applicable law, offset any amounts due ProFund™ against any amounts payable to you.  In no event will any termination relieve you of your obligation to pay any fees payable to ProFund™.

7.2

Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (b) ProFund™ will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.

7.3

The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.2, 2.3, 2.4, 3, 4, 5, 6, 7.2, 7.3, 8.1, 8.3, 9, 10, 11, and 13.

8. Warranties & Disclaimer

8.1

Accuracy of Your Account Information. You agree to provide ProFund™ with complete and accurate account information, including your legal company name, street address, e-mail address, and such other information as may be requested by ProFund™ (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify ProFund™ in writing if any Account Information changes. You agree that ProFund™ has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.

8.2

Warranty of Functionality. ProFund™ warrants to you with respect to the Services that the Software Service will perform materially in accordance with the functionality described in the Documentation, in effect at such time. Your sole and exclusive remedy for a breach of this warranty will be to cancel your subscription.

8.3

DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROFUND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. PROFUND DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 8.2, THE SERVICES AND ANY PRODUCTS AND THIRD-PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH PROFUND AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “PROFUND PARTIES”).

9. Indemnification

You agree to indemnify, defend, and hold harmless the ProFund™ Parties from and against any and all third-party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third-party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.

10. Limitations and Exclusions of Liability

PROFUND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY PROFUND. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PROFUND PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED $1,000.00 (USD). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH PROFUND AND THE PROFUND PARTIES.

IN NO EVENT WILL ANY PROFUND PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF PROFUND, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. Marketing Guidelines

ANY PROMOTIONAL OR INFORMATIVE MATERIAL YOU PREPARE FOR USE ON YOUR WEBSITE, PRINTED OR DIGITAL BROCHURES, EMAILS OR ANY OTHER CONTENT OF ANY KIND THAT INCLUDES USE OF THE PROFUND™ NAME, LOGO OR IDENTIFYING TRADE DRESS, REQUIRES SPECIFIC WRITTEN APPROVAL FROM PROFUND™ PRIOR TO FIRST USE.  In addition, any such promotional material that references financing, participating lender names, specific loan terms or credit products must be prepared and approved by a participating lender. Live or recorded content such as radio, television, recorded online video and other advertisement is prohibited to use the ProFund™ name without specific prior written consent.

13. Miscellaneous

13.1

Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Delaware without regard to conflicts of laws principles.

13.2

Mandatory Informal Dispute Resolution. In the unlikely event we end up in a legal dispute, you agree we will first attempt to resolve it through this informal process. If you have any dispute with ProFund™ arising out of or relating to this Agreement, you agree to notify ProFund™ in writing with a brief, written description of the dispute and your contact information, and ProFund™ will have thirty (30) days from the date of receipt within which to attempt to resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.

13.3

Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND PROFUND™, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 11.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND PROFUND™ AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures (currently accessible at https://www.adr.org/sites/default/files/Commercial-Rules-Web.pdf) as amended by this Agreement. Any arbitration hearing will be held in Collin County, Texas. The applicable governing law will be as set forth in Section 11.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

13.4

Entire Agreement. This Agreement, together with any Supplement Terms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and ProFund™ with respect to the subject matter hereof. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between ProFund™, on the one hand, and you or any Affiliate, on the other hand.

13.5

Waiver and Severability. No waiver of any provision of this Agreement by ProFund™ will be effective unless in writing and signed by ProFund™. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

13.6

Assignment. We are entering this Agreement with you and you agree you will not transfer it to anyone else. In an effort to make sure we meet our obligations to you, we can bring in other parties to fulfill the duties promised in this Agreement. You may not assign, delegate or transfer this Agreement in whole or in part, without ProFund™’s prior written consent. ProFund™ may assign, transfer or sublicense any or all of ProFund™’s rights or obligations under this Agreement without restriction.

13.7

Notices. Any notices provided by ProFund™ under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from ProFund™ through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to ProFund™ under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to Lender Hub, LLC dba ProFund™, Attn: ProFund™ Legal Department, 7440 State Hwy 121, McKinney, TX 75070.

13.8

Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving ProFund™’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

13.9

Electronic Communications and Signatures. In addition to the provisions set forth in Section 11, you agree to the use of electronic communication in order to enter into agreements and use the Services, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

13.10

Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and ProFund™.

13.11

Publicity. During the term of this Agreement and subject to obtaining prior written consent for each such separate intended instance of use, ProFund™ may use your company name and logo in ProFund™’s public and internal marketing materials and collateral and as part of a disclosure list of ProFund™’s platform partners or clients, including use of your company name and logo in our public marketing materials and collateral. After execution of this Agreement and subject to obtaining prior written consent of the Company, we may issue a press release announcing the relationship between the parties.

14. Definitions

For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:

“Affiliate” means any entity or person that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.

“Aggregated Data” means anonymized, de-identified, or aggregated data derived by or through the operation of the Services that is created by or on behalf of ProFund™ in compliance with applicable laws and that does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.

“API” means ProFund™’s application programming interface and any subsequent application programming interfaces that are developed and made available by ProFund™ to interact with or otherwise be used in connection with the Services.

"Confidential Information" means (a) any software utilized by ProFund™ in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties in a separate written document.

“Documentation" means online user guides, documentation, and help and training materials, as may be updated by ProFund™ from time to time, accessible at the applicable Website(s), and any other materials provided by ProFund™ as part of the Services.

“End User” means a business or individual that has registered to use the Services or you authorize to use the Services in connection with your business.

“End User Data” means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include such portions of Your Data that relates to specific End Users.

“ProFund™ Marks” means all service marks, logos and product and service names used, applied for, registered, or otherwise owned by ProFund™ and its affiliates.

“Privacy Policy” means the ProFund™ Privacy Policy accessible https://www.profund.net/privacy-policy (or such other URL as specified by ProFund™), as may be updated by ProFund™ from time to time.

“Project Account” means a segregated balance of loan proceeds held on behalf of a borrower at a third-party bank and through a third-party payment processor.

“Services” means the Software Services, Website, Apps, hardware and other services. “Services” excludes Third Party Offerings.

“Software Service” is defined in the Introduction.

“Third Party Offerings” means any third-party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.

“Website” means https://www.profund.net (or such other URLs as specified by ProFund™), as may be updated by ProFund™ from time to time and any other websites through which ProFund™ makes the Software Service available.

“Your Data” means any data, information or material provided or submitted or made available by you and Affiliates to the Services. Your Data may include End User Data (and your or their representative’s data), but excludes Aggregated Data.