Terms of Service Agreement
This Terms of Service Agreement (“Agreement”) is a legally binding contract between you and Profile Development, LLC and/or Franchisee (defined below) (“Profile”, “we” or “us”) and governs your use of the Service (as defined below). Read the terms and conditions of this Agreement carefully before continuing. Children under the age of majority should review this Agreement with their parent or legal guardian to ensure that you and your parent or legal guardian understand it. BY PROCEEDING WITH PROFILE REGISTRATION OR USE OF THE SERVICE, YOU INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THOSE REGARDING ASSUMPTION OF RISK AND THE LIMITATION OF PROFILE’S LIABILITY. IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, DO NOT PROCEED WITH PROFILE REGISTRATION OR USE OF THE SERVICE. By using the Site, as defined herein, or the Service after we post any changes to these Terms and Conditions, you accept the changes upon such use of the Site or the Services, whether or not you have reviewed the changes or not. Profile may modify this Agreement at any time without notice to you.
Capitalized terms used in this Agreement have the meaning ascribed to them in this Section.
“Acceptance Date” means the date you indicate your acceptance of this Agreement by proceeding with Profile registration or the purchase or use of Profile Precise.
“Appointments” means your meetings with a Profile Coach while receiving the Service.
“Client” means, collectively, any individual who has registered for the Service or purchased or used Profile Precise.
“Client Data” means the data about you that Profile gathers in the course of providing the Service or your use of Profile Precise, including but not limited to your contact information, physical characteristics, genetic information, medical history and physician information, lifestyle habits, eating habits and caloric intake, changes in weight, and progress with respect to exercises and activities. “Client Data” also includes recordings of virtual or telephone conversations and any information that you post on the Profile-operated website or any Profile-affiliated electronic interface at any time before, during or after your receipt of Services.
“Confirmation Email” means any e-mails providing instruction on the Services, and/or confirming your Plan selection, participation in the Services, and/or purchase of Services from Profile. Certain Clients may request that Confirmation Emails be sent in a paper format.
“Documentation” means, collectively, all Client guides, protocols, Plan(s), Profile Precise test results, Confirmation Emails, and other reference materials generally furnished by Profile with respect to the Service, whether in printed or electronic format, as may be updated by Profile from time to time.
“Franchisee” means any individual, group of individuals, or legal entity or entities in which Profile Franchising, LLC has a contractual franchise relationship.
“Membership Fee” means, as set forth in the Plan, the charge to the Client for Services provided by Profile.
“Membership Voucher” means an official offer created by Profile that waives all or part of the charge for the Service.
“Participating Properties” means all Profile and Franchisee store locations in the United States.
“Plan” means one or more packages of a defined set of benefits comprising the Service, which are offered to a Client in exchange for a Membership Fee or Membership Voucher.
“Profile Coach” means an employee of Profile or a Franchisee who has been engaged or assigned by Profile or a Franchisee to consult with and make recommendations to Clients as part of the Service.
“Profile Precise” means Profile’s genetic test to determine nutrition markers.
“Profile Products” means, but is not limited to, the scale, wireless activity tracker, blood pressure monitor, digital tape measure, wireless bridge, food products, Profile Precise test kit, and any other equipment provided by Profile to you for purchase as part of the Plan and Service.
“Promotional Event” means any event, presentation, exhibition, display, class, competition, contest, tournament, match, or other occurrence that Profile, Profile Coaches, or Profile employees, host, lead, provide services for, contribute to, sponsor, or otherwise direct or control for an advertising, marketing, promotional, or other business purpose whether on Profile property or otherwise. Promotional Events include, without limitation, exercise or fitness classes or lessons, yoga, workouts, and other physical activities.
“Proprietary Information” means all non-public business or technical information or materials disclosed to you by Profile or any Profile Coach, including the Documentation, any educational materials, any method of carrying out or delivering the Service, and any pricing or commercial terms related to the Service, including the price you have paid for the Plan and Service.
“Service” means Profile’s weight loss and weight management program, which is delivered in one or more Plans and may include Profile Precise if you choose to purchase it and to incorporate it into your Plan.
“Site” means the Profile-operated website through which the Service is made available to you.
“Subsidiary” means any entity controlling, controlled by, or under common control of Profile.
“Weight Loss Goal” means your specific weight loss percentage as defined in the Plan or such other agreed upon weight loss percentage that would not drive your weight below a healthy weight range.
- Use of the Service
2.1 General. Subject to the terms and conditions of this Agreement, and during the term of this Agreement, Profile grants you a non-exclusive and non-transferable right to access and use the Service in accordance with the terms of this Agreement, a specific Plan, and any Documentation made available to you by Profile. The Service has been designed by Profile with the goal of assisting people with weight loss and weight management. YOU UNDERSTAND AND AGREE THAT INDIVIDUAL RESULTS VARY. You also understand and agree that we may, but are not obligated to, modify the Service, Plan, and the Documentation for a variety of reasons, including for consistency with the most recent weight loss and weight management research. Your specific Weight Loss Goal will be modified to a lower agreed upon weight loss percentage if your weight loss would drive your weight below a healthy weight range.
2.2 Profile Promise. Subject to the below terms and conditions, if you follow your Plan, you will lose at least fifteen percent (15%) of your body weight or a lesser agreed upon goal in 20 Appointments or less or we will refund your Membership Fee paid through the date of your 20th Appointment, not to exceed your first year’s Membership Fee (the “Profile Promise”). The Profile Promise is subject to the following terms and conditions: (1) you must attend a minimum of 20 Appointments; (2) you must attend your first six Appointments in six consecutive weeks; (3) you must attend your next 14 Appointments no more than 21 days from your previous Appointment; (4) you must weigh in on your Smart Body Scale provided by Profile at least twice per month; (5) you must purchase Profile Products according to the Plan; and (6) you must comply with this Agreement and all dietary and activity recommendations provided to you by Profile and your Profile Coach(es). The Profile Promise is null and void if: (a) you lose fifteen percent (15%) of your body weight or the lesser agreed upon amount of weight during the period of time it takes you to complete 20 Appointments but then regain weight prior to or at the conclusion of your 20-Appointment period; (b) it is not appropriate or healthy for you to lose fifteen percent (15%) of your body weight or the lesser agreed upon goal (your body weight must be in the healthy BMI range); or (c) you have or develop a health or medical condition that prevents you from losing fifteen percent (15%) of your body weight or the lesser goal, or the health or medical condition makes it inappropriate for you to do so. You will be responsible for the cost of all Profile Products associated with following your Plan; you will not be reimbursed the cost of Profile Products in any event. Once you’ve lost 15% of your body weight or the lessor agreed upon goal, the Promise is fulfilled. You must put forth a good faith effort to fulfill the Profile Promise.
2.3 Profile Coaches. As part of the Plan and Service, Profile will provide you with access to Profile Coaches, who will consult with you virtually or in person. You agree to work with your Profile Coaches in good faith solely with respect to the Service, and you will not seek consultation from your Profile Coaches for any other purpose. Unless instructed otherwise by Profile, you agree to conduct your sessions with Profile Coaches alone, with no observers, and you will not record any such session in any way.
2.4 Profile Precise. Profile Precise is a genetic test that uses a cheek swab to collect a DNA sample to determine nutrition-related markers. You agree Profile may use the results of the test to provide you with general nutritional advice that may be used with your Plan. You agree and give consent to Profile, its third party contractors, successors and assignees to perform genetic services on the DNA extracted from the saliva sample you provide. You confirm that you are above the age of majority in the jurisdiction in which you reside and that you have voluntarily given your informed consent to have your saliva samples tested for nutrition-related genetic markers. Your use of the Profile Precise services is voluntary.
The physical risks of the saliva test are minimal and related to inserting the swab sample collection tool into your mouth and wiping the inside of your check. Waiting for and receiving your results may present certain psychological risks or create anxiety for you. You may have emotional reactions to learning the results of the test. You may experience anxiety about sharing the results of your test with other people, including your family, who may have similar genetic markers. Therefore, you may want to meet with or discuss the Profile Precise test with your healthcare provider before deciding to participate.
There are possible economic risks of genetic testing that may affect your ability to obtain life, long-term care, or disability insurance. Your insurer may request information about the test results or ask if you have had a genetic test.
You agree and understand:
- the nature and purpose of the Profile Precise test
- the effectiveness and limitations of the test
- the possible consequences of submitting the DNA sample for testing
- the risks and benefits of the Profile Precise test and its results
- you may experience anxiety from going through the testing process and/or receiving the results.
- to consult with your healthcare provider if you have any questions about the test and/or legal advisor about any insurance or other legal implications of taking the test
- the possible uses and disclosures of your de-identified data by Profile, including for future commercial or research purposes, or other uses determined exclusively by Profile
- that genetic testing is optional and is not required to participate in the Profile Program.
- you have been able to ask your Profile representative about all of your questions regarding this test and your questions were satisfactorily answered.
Once you submit your saliva sample, it is shipped to Profile’s third party contract laboratory, where the sample is irreversibly processed and it cannot be returned to you. The test results are reported to and analyzed by Profile. Any genetic information taken from your saliva sample remains your information but is subject to the rights that are expressed in this Agreement and Profile’s Privacy Statement. Profile’s third-party contractor laboratory is measuring the copy number variation of genetic markers associated with the production of the enzyme, amylase by your body. Profile interprets this information to provide general nutrition advice related to macronutrient intake. Future genetic research may change how your DNA is interpreted by Profile. Profile Precise is currently not available in Maryland, New Jersey, and New York. In addition, Profile and/or select Franchisees may not, in its or their sole discretion, offer Profile Precise at your Site or may impose additional requirements for you to obtain Profile Precise. Profile does not guaranty that Profile Precise is available at every Site.
2.5 Your Health. PROFILE AND ITS FRANCHISEES ARE NOT MEDICAL ORGANIZATIONS. YOU SHOULD NOT CONSIDER THE SERVICE OR THE DOCUMENTATION AS MEDICAL ADVICE OF ANY KIND, AND THE SERVICE IS NOT INTENDED TO TREAT ANY ILLNESS, DISEASE, OR ADVERSE MEDICAL CONDITION. Profile and its Franchisees are not licensed medical care providers, and we have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You are urged and advised to seek the advice of a physician before beginning your use of the Service, and to get periodic medical check-ups as recommended by your primary care physician. The information and reports generated by Profile or its Franchisees should not be interpreted as a substitute for physician consultation, evaluation, or treatment. By using the Service, you represent that you are healthy enough to begin a weight loss regimen that includes dieting and exercise. If you are currently under the care of a health care professional or are living with a chronic health care condition, you represent that you have obtained the express approval from a health care professional to receive the Services before beginning. Never disregard professional medical advice or delay in seeking it because of something you have been told by Profile staff or any Profile Coach.
2.6 Profile Precise Testing Limitations. Profile Precise Services are for informational and educational use only. No medical advice, diagnosis, or treatment is provided with regard to any Profile Service, including Profile Precise, and is not intended to substitute for professional medical advice, diagnosis, or treatment. The genetic information reported has not been clinically validated. Profile’s laboratory may not be able to process your sample and the analysis may result in errors or inaccurate results. The laboratory may not be able to process your sample if your saliva sample does not contain enough DNA volume, you do not provide enough saliva, or the results do not meet the requisite quality and accuracy standards of Profile’s third party contract laboratory. If the laboratory processing fails because of any of these reasons, the Client has one of two options: (1) Profile will process the same saliva sample without any additional charges to the Client. If the second attempt fails, Profile will offer to ship another kit to the Client to collect a second saliva sample at no charge; or the Client may elect a full refund of the amount paid to Profile for Profile Precise testing. Despite established standards for the processing of saliva samples, a small fraction of data processed during the laboratory process may not be capable of interpretation or may be incorrect (“Errors”). Clients are not entitled to refunds arising from Errors.
2.7 Registration and Use of the Site. You represent and warrant that the data that you provide about yourself in filling out the Profile account registration form are and will remain accurate and complete, and you agree to update such data as necessary to maintain its accuracy, including without limitation your email address. You agree not to (i) select, register, or attempt to register, or use a user name of another person with the intention of impersonating that person; (ii) use a user name of anyone else without authorization; (iii) use a user name in violation of the intellectual property rights of any person; or (iv) use a user name that Profile considers in its sole discretion to be offensive. Profile reserves the right to reject or terminate the registration of any user name or password that, in its sole judgment, violates a provision of this Agreement. You are responsible for maintaining the confidentiality of the login and password you use to access the Site. You will be responsible for all uses of your login and password, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of the Site, including any unauthorized use of your login or password. Profile in its sole discretion reserves the right to remove any content posted by users on the Site or any Profile-affiliated electronic interface.
2.8 Restrictions. You may not: (a) license, sell, transfer, distribute, or otherwise commercially exploit or make available to any third party, access to the Service or any of the Documentation; (b) modify or make derivative works based on the Documentation or the Site; (c) use any robot, spider, or other automatic device or manual process to monitor or access the Site, record any interaction with a Profile Coach, or in any way duplicate the Documentation; (d) copy any content, features, functions, or graphics of the Documentation or the Site other than in connection with your own personal use of the Service; (e) use the Site or the Service in a manner intended to abuse or violate the privacy or property rights of others; (f) tamper with or knowingly take any other action that may negatively affect the use of the Service or Documentation, or the functionality of the Site or any Profile Products; (g) reverse engineer, disassemble, or decompile the Site or any Profile Products; (h) use the Service, Site, Documentation, or Profile Products to build a competitive website or service, or to build a product or service using similar ideas, features, or functions; or (i) resell, distribute, or otherwise give Profile Products, Services, or Documentation to any third parties unless explicitly authorized by Profile.
2.9 Use by Minors. Any Client under the age of majority (18 or 19 years old, depending on where you live) must have a signed physician referral form and a signed parent/guardian consent form before using the Service. Profile Precise is not available to any Client under the age of majority in the state in which they reside.
3. Use and Participation in the Services
3.1 Weight Loss Services. You are urged and advised to seek the advice of a physician before beginning any weight loss effort or change in diet or program. Profile is intended for use only by healthy individuals. Pregnant women, individuals with any type of health condition, or individuals taking medications or supplements are specifically warned to seek professional medical advice prior to initiating any form of weight loss effort or regimen, and it is such individual’s responsibility to seek medical advice or referral. Profile is not responsible for an individual’s failure to consult with a medical professional and disclaims all liability arising from such failure. Not all Promotional Events, exercises or activities recommended by Profile or any of the Profile Coaches, or otherwise made available on the Site or in the Documentation, are suitable for everyone. You understand and agree that when participating in any Promotional Event, exercise or exercise program, there is the possibility of injury or death. As such, YOU AGREE TO USE YOUR OWN JUDGMENT AT ALL TIMES DURING YOUR PARTICIPATION IN A PROMOTIONAL EVENT OR USE OF THE SERVICE IN ORDER TO DETERMINE IF ANY RECOMMENDED EXERCISE OR ACTIVITY IS SUITABLE FOR YOU. If you feel any discomfort or pain, including but not limited to constipation, muscle cramps, dehydration, diarrhea, dizziness, dry or cold skin, fatigue, gallbladder inflammation or gallstones, gout, hair loss, headaches, heart palpitations, loss of lean body mass, irregular or stopping of menstruation, or reduced tolerance to cold during your participation in a Promotional Event or use of the Service, you must immediately stop the exercise or activity causing such discomfort or pain, consult with a physician, and dial 911 using your telephone if you need emergency help. Losing weight may affect some medical conditions and medications. Your physician may need to adjust your medications due to changes in your diet, exercise, or weight while on this program or using the Service. You should discuss your continued participation in the Profile program and the Services with your physician. Profile and Profile Precise will not be responsible for any health problems or injuries that you may experience as a result of receiving the Services or Participating in a Promotional Event, including from training programs, products, or events you learn about through the Service or in a Promotional Event. YOU HEREBY AGREE THAT YOUR PARTICIPATION IN A PROMOTIONAL EVENT OR USE OF THE SERVICE, INCLUDING YOUR USE OF ANY EXERCISE PROGRAM RECOMMENDED BY PROFILE OR ANY PROFILE COACH, IS AT YOUR OWN RISK AND THAT YOU ARE VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES, EVEN IF ANY ASPECT OF THE SITE OR DOCUMENTATION IS INACCURATE, INCOMPLETE, OR INAPPROPRIATE IN THE MANNER IT WAS PRESENTED. You Assume All Risk in Using the Service and participating in any Promotional Event.
3.2 Waiver. You assume full responsibility for any injury or accident that may occur during your use of the Services or Participation in a Promotional Event. YOU HEREBY, FOR YOURSELF AND YOUR HEIRS, EXECUTORS AND ADMINISTRATORS, FOREVER RELEASE, HOLD HARMLESS, AND DISCHARGE PROFILE, AND THEIR PARENTS, AFFILIATES, AND SUBSIDIARIES, AND EACH OF THEIR OFFICERS, DIRECTORS, TRUSTEES, AGENTS, VOLUNTEERS, PROFILE COACHES, EMPLOYEES AND BENEFICIARIES (COLLECTIVELY, THE "ORGANIZERS"), FROM AND AGAINST ANY AND ALL RIGHTS AND CLAIMS FOR INJURIES OR DAMAGES YOU MAY HAVE ARISING IN ANY MANNER FROM YOUR PARTICIPATION IN A PROMOTIONAL EVENT OR USE OF THE SERVICES, REGARDLESS OF WHETHER SUCH INJURIES OR DAMAGES RESULT FROM THE NEGLIGENCE OF THE ORGANIZERS AND REGARDELSS OF WHETHER SUCH INJURIES OR DAMAGES ARE CAUSED BY RISKS KNOWN, UNKNOWN OR NOT REASONABLY FORESEEABLE AT THIS TIME, OR OTHERWISE.
3.3 Content and Information. The contents of the Site and Documentation, including but not limited to Profile Precise results, text, graphics, images, videos, and information, whether created by Profile or licensed from a third party, are for informational and educational purposes only. Despite our efforts to provide useful and accurate information, errors may appear from time to time. Before you act on said information, you should confirm any facts that are important to your decisions. Profile and its information providers make no warranty as to the reliability, accuracy, timeliness, usefulness or completeness of the information on the Site and in the Documentation. The information is not intended to be a substitute for professional medical advice, diagnosis, or treatment. The genetic information obtained from Profile Precise you share with other people can be used against your best interests, so you should be very cautious when sharing your genetic information.
- Term and Termination
4.1 Term. Unless otherwise specified during the sign up process, the term of this Agreement will begin on the Acceptance Date and will continue for an initial term of 12 months from the Acceptance Date. Unless Profile elects not to renew your membership, Profile will send a notice of renewal to you, which will set forth the associated annual Membership Fee before the end of the initial term. If you agree to renew in accordance with the notice of renewal, the term of this Agreement will continue for a 12-month renewal term, and the foregoing notice and renewal process will be repeated.
4.3 Effect of Termination. Upon the termination of this Agreement, you agree to delete all copies of any Documentation in your possession or control.
4.4 Survival. Sections 2.6, 3, 4.3, 5.1, 5.3, 5.4, and 6 through 10 will survive the termination or expiration of this Agreement. In addition, any provisions in this Agreement that by their nature would be expected to survive the termination of this Agreement shall survive and not be affected by termination or expiration.
5.1 Membership Fee. Your Membership Fee is presented to you during the registration process and in the Plan and/or Confirmation Emails. Unless otherwise specified during registration, the Membership Fee is for a full one-year term, and you are responsible for the full Membership Fee from the Acceptance Date, even if you stop using the Service before the end of one year. Your Membership Fee entitles you to access a Profile Coach but in the event you do not purchase a minimum of $25.00 in Profile Products per Profile Coach visit, you will compensate Profile in the sum of $40.00 for said visit.
5.2 Promotions. Any promotion or Membership Voucher offered has no independent cash value and may not be combined with any other offers.
5.3 Taxes. You will be responsible for all taxes of whatever kind or nature imposed by any governmental authority upon any Services provided to you hereunder, exclusive taxes based upon Profile’s income or property.
5.4 Shipping Costs. Client shall be responsible for all shipping costs associated with orders of Profile Products.
5.5 Refunds. Subject to any applicable state or federal laws, the Profile Promise or as otherwise provided in this Agreement, there are no refunds of Membership Fees. Profile reserves the right to freeze a Client’s Membership within Profile’s sole discretion. THERE ARE NO REFUNDS OR MODIFICATIONS OF FOOD ORDERS OR PURCHASES. However, if you are unsatisfied with the food products you purchased, Profile will allow you to exchange any unopened, unexpired food products for other food products of an equal or lesser value.
- Referral Program
6.1 Physician Referral Program. If you become a Client following recommendation by a physician you may be eligible for a Membership Voucher or discounted Membership Fee pursuant to further Documentation provided by Profile. Offers and discounts are not available at all Profile locations and participation may vary. Offers and discounts are subject to change in Profile’s sole and absolute discretion.
6.2 Employer Referral Program. If you become a Client through your employer’s contractual relationship with Profile, you are entitled to a discounted Membership Fee and/or a discount on all food products pursuant to the agreement Profile has with your employer so long as Profile has an agreement with your employer. Offers and discounts are subject to change.
6.3 Client Referral Program. Profile offers an optional referral program. If you opt in to participate in the program in accordance with further Documentation provided by Profile, you may be entitled to free or discounted food products and/or Profile Products and Service.
6.4 Promotional Events. Profile may offer Promotional Events from time to time, and said Profile events shall be subject to the terms and conditions of this Agreement and any further Documentation provided by Profile.
- Proprietary Rights
7.1 Reservation of Rights by Profile. Profile is the owner or licensor of all rights, title, and interest in the Service, Site, Documentation, and Profile Products, including all related intellectual property and other proprietary rights therein. No rights in these items are granted to you except as expressly set forth in this Agreement. You acknowledge and agree that the Service, Site, Documentation, and Profile Products, and any technology, written materials, and logos used in connection with these items, contain Profile’s and its licensors’ intellectual property and other Proprietary Information, and are protected by United States and international intellectual property and other laws. Your infringement or misappropriation of such intellectual property and other Proprietary Information could expose you to both civil and criminal penalties under applicable laws.
7.2 License to Client Data. You grant, and represent and warrant that you have the right to grant, Profile a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual right and license to store, copy, and use Client Data in order to (a) provide the Service to you, which may include disclosing de-identified Client Data with, Franchisees, Profile vendors, contractors, or subcontractors (b) analyze and improve the Service, Site, Documentation, and Profile Products, (c) conduct internal research on the efficacy of the Service, Site, Documentation, and Profile Products in order to improve the Service and Profile Products, and (d) using de-identified Client Data, to market and advertise Profile, the Service and the Profile Products. You further grant Profile permission to disclose to Franchisees and third parties selected by Profile and publish de-identified Client Data (i.e., Client Data that is made anonymous by removing your name and other identifiers that could foreseeably be used to identify you) for any purpose selected by Profile, including but not limited to commercial uses or as part of research studies, academic papers, and scholarly articles based on any such research. You acknowledge that either Profile or Franchisees on behalf of Profile may collect Client Data for the uses described herein.
7.3 Suggestions. You hereby grant Profile a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual right and license to use or incorporate into the Service, Site, Documentation, and Profile Products any ideas, suggestions, enhancement requests, recommendations or other feedback that you provide to us.
7.4 Copyright Notices. If you believe any materials on the Site or in the Documentation infringe your copyright, you may request removal of those materials by providing the following information (in one document): (1) the identity and location of the copyrighted work that you believe to be infringed, (2) the identity and location of the material that you believe infringes the copyrighted work, (3) your name, address, telephone number and (if available) e-mail address, (4) a statement that you have a good faith belief that the complained-of use of the materials is not authorized by the copyright owner, its agent, or the law, (5) a statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf, and (6) a signature, or the electronic equivalent, from the copyright holder or authorized representative. All requests should be sent to: Profile Development, LLC, Attn: Legal Department, P.O. Box 5039, 1305 W. 18th Street, Sioux Falls, SD 57117-5039. We will provide notice to you if we believe you are violating the copyright of any content on the Site. We may provide general notice to you and others on any of our websites, by electronic mail to your e-mail address in our records, or by written communication sent by mail to your physical address in our records.
8.1 Your Obligations. You may not, without Profile’s prior written consent (a) use the Proprietary Information except in conjunction with your use of the Service, or (b) disclose any of the Proprietary Information to any other person.
8.2 Profile’s Obligations. Profile will use commercially reasonable efforts to safeguard Client Data and any other information we collect about you in accordance with Profile’s Privacy Statement.
- No Warranties; Limitation of Liability; Indemnification
9.1 Disclaimer of Warranties. THE SERVICE, EACH PROMOTIONAL EVENT, THE SITE, THE DOCUMENTATION, AND PROFILE PRODUCTS ARE PROVIDED BY PROFILE OR ITS FRANCHISEES STRICTLY ON AN “AS IS”, WITH ALL FAULTS, AND “AS AVAILABLE” BASIS. NEITHER PROFILE NOR ITS FRANCHISEES REPRESENT OR WARRANT THAT THE SERVICE OR ACCESS TO THE SITE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE. PROFILE AND FRANCHISEES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
9.2 Limitation of Liability. THE CUMULATIVE AGGREGATE LIABILITY OF PROFILE, ITS SUBSIDIARIES, AND FRANCHISEES AND THEIR OFFICERS, DIRECTORS, TRUSTEES, OWNERS, MANAGERS, MEMBERS, AGENTS, EMPLOYEES AND REPRESENTATIVES (INCLUDING THE PROFILE COACHES), ARISING OUT OF OR RELATING TO THIS AGREEMENT, YOUR PARTICIPATION IN A PROMOTIONAL EVENT, OR YOUR USE OF THE SERVICE WILL BE LIMITED TO THE FEES PAID BY YOU HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL PROFILE, ITS SUBSIDIARIES, OR FRANCHISEES OR THEIR OFFICERS, DIRECTORS, TRUSTEES, OWNERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (INCLUDING THE PROFILE COACHES), HAVE ANY LIABILITY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES INCURRED BY YOU (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS, OR LOST WAGES), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT PROFILE WAS ADVISED SUCH DAMAGES MIGHT ARISE. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION CONSTITUTE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PROFILE.
9.3 Indemnification. You agree to defend and indemnify Profile, its Subsidiaries, and Franchisees, and each of their officers, directors, trustees, owners, managers, members, employees, agents, and representatives (including the Profile Coaches) against any claim, demand, action, lawsuit, and liability (including reasonable attorneys’ and experts’ fees) arising out of, or alleged to result from the automatic payment services, your use of the Services, any Promotional Event, or your breach of this Agreement.
10.1 Your Online Data. You acknowledge and agree that Profile and its Franchisees shall have access to your online account associated with your Profile Products (including your account on https://www.profileplan.com/) so that we may monitor your data on these accounts. For avoidance of doubt, all such data will be deemed Client Data for purposes of this Agreement.
10.2 Subcontractors. Profile may subcontract some or all of its obligations under this Agreement without providing any prior notice to you.
10.3 Links. You are usually free to establish a hypertext link to the Site so long as the link does not state or imply any sponsorship or endorsement of your site by Profile or any of Profile’s agents, successors, assigns, or partners. However, you must confirm the copyright policies of the page to which you wish to post a link to ensure that no such policies prohibit such links. We may provide links to third-party websites on the Site. We do not recommend and do not endorse the content on any third-party websites. We are not responsible for the content of linked third-party sites and do not make any representations regarding their content or accuracy. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such sites.
10.4 No Third Party Beneficiaries. Nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than you and Profile.
10.5 Assignment. You may not assign, delegate or otherwise transfer your rights or obligations under this Agreement or this Agreement in its entirety to any other person or entity. Profile Development, LLC may assign, delegate, or otherwise transfer its rights and/or obligations in whole or in part and at any time under this Agreement or this Agreement in its entirety to any Franchisee or Subsidiary in Profile Development’s sole and absolute discretion, without prior notice, and Client hereby consents to such assignment. A Franchisee may not assign, delegate, or otherwise transfer this Agreement or any rights or obligations hereunder without Profile Development, LLC’s prior written consent, but without Client’s consent; provided, however, Franchisee may assign, delegate, or transfer this Agreement to Profile Development, LLC. Client specifically acknowledges that all or part of this Agreement may be fulfilled by Profile, its Subsidiaries, or its Franchisees.
10.6 Amendments. Profile may amend this Agreement at any time without notice to you.
10.7 Use of “Including”. Wherever the word “including” is used in this Agreement, it is not intended to limit the proposition preceding it, but is rather intended to mean “including but not limited to.”
10.8 Force Majeure. Neither party will be responsible for delays or failure in performance (other than failures to make payments due under this Agreement) resulting from acts beyond the reasonable control of such party, including acts of God, strikes, lockouts, riots, acts of war, terrorism, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.
10.9 Governing Law; Jurisdiction and Venue. The Services and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Sioux Falls, South Dakota, and shall be governed by and construed in accordance with the laws of the State of South Dakota without regard to its conflict of law principles with exclusive venue for resolution of disputes in the State Circuit Court for the Second Judicial Circuit, Minnehaha County. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
10.10 Entire Agreement. This Agreement, the Terms and Conditions of Use, the Profile Privacy Statement, and the Confirmation Emails constitute the sole and complete agreement between the parties with regard to the Service, and supersede all prior and contemporaneous agreements, proposals, representations, warranties, or promises, whether written or oral, relating to the Service.
10.11 Severability. If any provision of this Agreement is adjudicated to be contrary to law, the provision will be modified and interpreted so as to best 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.
10.12 Notice. All notices, permissions, and approvals hereunder will be in writing and will be deemed to have been given if personally delivered or deposited into the United States mail in a properly stamped envelope, certified or registered mail, return receipt requested, addressed to the party to whom it is to be given. Profile will send notices to the address you provide to Profile during your use of the Service. You agree to send notices to Profile at the following address:
Profile Development, LLC
Attn: Legal Department
P.O. Box 5039
Sioux Falls, SD 57117- 5039
10.13 Construction of Headings. The captions or headings are for convenience only and are not intended to limit or define the scope or effect of any provision of this Agreement.
10.14 Version. Last updated September 3, 2019. This Agreement was written in English (US).To the extent any translated version of this Agreement conflicts with the English version, the English version controls.