Terms of Use

 

Effective Date: October 12, 2016

 

Welcome to the Pro-Tier.com website (this “Site”), which is owned and operated by Pro-Tier, Inc., a Delaware corporation, and its affiliates (collectively, “PRO-TIER” or “we” or “us”).  This Site and all applications, tools, materials, contents, products and services made available on or through this Site, are referred to hereinafter collectively as the “PRO-TIER SERVICES”.

 

These Terms of Use, together with PRO-TIER’s Privacy Policy constitutes a legally binding contract between each user (“you”) and PRO-TIER regarding use of the PRO-TIER Services.  PLEASE READ THESE TERMS OF USE AND PRO-TIER’S PRIVACY POLICY CAREFULLY BEFORE USING ANY OF THE PRO-TIER SERVICES.  BY USING ANY OF THE PRO-TIER SERVICES, YOU EXPRESSLY ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE AND PRO-TIER’S PRIVACY POLICY, AND YOU REPRESENT AND WARRANT THAT YOU HAVE REACHED THE AGE OF MAJORITY IN YOUR STATE OF RESIDENCE AND HAVE FULL LEGAL CAPACITY TO ENTER INTO A LEGALLY BINDING CONTRACT WITH PRO-TIER.

 

PLEASE NOTE THAT These Terms of USE contain provisions that limit pro-tier’s liability to you and require you to resolve any dispute with PRO-TIER through final and binding arbitration on an individual basis and not as part of any class or representative action. Please see the “Disclaimer of Warranties”, “Limitations of Liability” and “Arbitration Agreement” sections below for DETAILS.

 

1.              Important Notices & Disclaimers.

 

BY USING ANY OF THE PRO-TIER SERVICES, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE AS FOLLOWS:

 

(1)       PRO-TIER DOES NOT PROVIDE TAX, LEGAL OR ACCOUNTING ADVICE.  YOU SHOULD CONSULT YOUR OWN TAX, LEGAL AND ACCOUNTING ADVISORS BEFORE SUBSCRIBING FOR ANY OF THE PRO-TIER SERVICES (INCLUDING, WITHOUT LIMITATION, A SERIES OF “PRO-TIER MASTER SERIES” AS DEFINED IN SECTION 2 BELOW).

 

(2)       PRO-TIER IS NOT A LAW FIRM AND CANNOT PRACTICE LAW OR PROVIDE ADVICE OR SERVICES OF AN ATTORNEY.  THE PRO-TIER SERVICES ARE NOT AND DO NOT PURPORT TO BE SUBSTITUTES FOR THE ADVICE OR SERVICES OF AN ATTORNEY.

 

(3)       Use of the PRO-TIER Services does not and will not create an attorney-client relationship between you and PRO-TIER.  COMMUNICATIONS BETWEEN YOU AND PRO-TIER ARE NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE OR WORK PRODUCT DOCTRINE.  PRO-TIER CAN ONLY PROVIDE SELF-HELP SERVICES AT YOUR SPECIFIC DIRECTION AND CANNOT PROVIDE ANY KIND OF ADVICE, EXPLANATION, OPINION OR RECOMMENDATION TO YOU ABOUT POSSIBLE LEGAL RIGHTS, REMEDIES, DEFENSES, OPTIONS, SELECTION OF FORMS OR STRATEGIES.

 

(4)       information provided on this Site is OF A GENERAL NATURE, IS not legal advice, and is not guaranteed to be ACCURATE, ERROR-FREE, UP TO DATE, complete, or USEFUL OR SUITABLE FOR YOUR PARTICULAR SITUATION.  Because the law changes rapidly AND varies by jurisdiction and may be interpreted differently by different courts, you should always consult a licensed attorney in your area if you need legal advice for your business.

 

2.              Additional Notices & Disclaimers Regarding “Series LLC” Service.

 

Among the PRO-TIER Services is a service that provides customers with a “series” (a “Series”) of a Delaware series limited liability company through which a customer may conduct business.  A series limited liability company (“Series LLC”) is a form of limited liability company that may be formed under the laws of some states.  Each Series created by the Series LLC can hold assets, have members, and pursue its own business objectives, while enjoying protection from legal claims against the Series LLC itself and other Series, much like a limited liability company.  While a Series is not a limited liability company, the Series affords an owner many of the benefits of a limited liability company and PRO-TIER is able to offer Series for less than the cost of a limited liability company.

 

Series are offered through PRO-TIER’s wholly owned subsidiary, Pro-Tier Master Series, LLC, a Delaware series limited liability (the “Pro-Tier Master Series”).  You may create a Series by registering with PRO-TIER and providing the annual subscription fee at Create Account.  The name of your series must conform with the requirements of the Delaware Limited Liability Company Act.

 

BY SUBSCRIBING FOR A SERIES OF PRO-TIER MASTER SERIES, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE AS FOLLOWS:

 

(1)       WHILE SERIES LIMITED LIABILITY COMPANIES HAVE BEEN AROUND FOR ABOUT TWENTY YEARS, SERIES LIMITED LIABILITY COMPANIES ARE LARGELY UNTESTED IN COURTS AND REMAIN SUBJECT TO A NUMBER OF RISKS AND RESTRICTIONS. SPECIFIC RISKS AND RESTRICTIONS INCLUDE, WITHOUT LIMITATION, THE FOLLOWING:

 

(i)        UNDER DELAWARE LAW, A SERIES OF A SERIES LIMITED LIABILITY COMPANY IS CREATED BY THE SERIES LLC AND IS NOT REGISTERED WITH THE DELAWARE SECRETARY OF STATE.  THEREFORE, A GOOD STANDING CERTIFICATE CANNOT BE OBTAINED FROM THE DELAWARE SECRETARY OF STATE, ALTHOUGH PRO-TIER CAN PROVIDE A CERTIFICATE AS TO STATUS OF YOUR SERIES.

 

(ii)       IN ORDER TO GET THE FULL BENEFITS OF A SERIES, INCLUDING THE ABILITY TO SUE AND BE SUED, IN ANY STATE OTHER THAN DELAWARE WHERE YOU CONDUCT BUSINESS, YOU MUST REGISTER YOUR SERIES AS A FOREIGN ENTITY WITH THE SECRETARY OF STATE IN ANY STATE WHERE YOU DO BUSINESS (“DOING BUSINESS” VARIES IN EACH STATE BUT TYPICALLY INCLUDES ACTIVITIES SUCH AS OWNING OR LEASING PROPERTY OR HIRING EMPLOYEES WITHIN A STATE). PRO-TIER AND ITS AFFILIATES HAVE NO OBLIGATION TO, AND WILL NOT, REGISTER YOUR SERIES IN ANY STATE. REGISTRATION AS A FOREIGN ENTITY IN STATES WHERE THE SERIES CONDUCTS BUSINESS REQUIRES THE PAYMENT OF ANNUAL FEES. CALIFORNIA, FOR EXAMPLE, CHARGES $800 PER SERIES FOR THE REGISTRATION OF FOREIGN SERIES LIMITED LIABILITY COMPANIES.

 

(iii)      FAILURE TO OBTAIN AND MAINTAIN REQUIRED LICENSES AND PERMITS OR TO COMPLY WITH LOCAL, STATE AND FEDERAL REGULATIONS COULD HARM YOUR BUSINESS AND LEAD TO THE TERMINATION OF YOUR SERIES.

 

(iv)      WHILE PRO-TIER DOES NOT BELIEVE THAT ITS SERVICE OF PROVIDING SERIES TO CUSTOMERS CONSTITUTES AN OFFER OR SALE OF SECURITIES BUT RATHER IS A SERVICE AKIN TO THE FORMATION OF A TRADITIONAL LIMITED LIABILITY COMPANY, PRO-TIER HAS NOT RECEIVED CONFIRMATION FROM THE SECURITIES AND EXCHANGE COMMISSION THAT THE SERIES DOES NOT CONSTITUTE A SECURITY AND THEREFORE DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN EXEMPTION THEREFROM.

 

(v)       YOUR SERIES MAY BE SUBJECT TO SPECIAL REQUIREMENTS IN SOME STATES AND SOME STATES MAY PROHIBIT YOUR SERIES FROM REGISTERING AS A FOREIGN ENTITY ENTIRELY.

 

(vi)      THE TAX TREATMENT OF YOUR SERIES UNDER FEDERAL AND STATE TAX LAW IS UNCERTAIN.  YOU MAY HAVE DIFFICULTY OBTAINING A SEPARATE TAX IDENTIFICATION NUMBER FOR YOUR SERIES.

 

(vii)     THE TREATMENT OF YOUR SERIES IN THE EVENT OF A BANKRUPTCY MAY BE UNCLEAR.

 

(viii)    SOME STATES MAY NOT RECOGNIZE THE INDEPENDENT LIABILITY SHIELD OF YOUR SERIES.

 

(ix)      UNDER DELAWARE LAW, YOU MAY NOT MERGE OR CONSOLIDATE YOUR SERIES OR CONVERT YOUR SERIES TO A LEGAL ENTITY.

 

(x)       PURSUANT TO THE LIMITED LIABILITY COMPANY AGREEMENT OF PRO-TIER MASTER HOLDINGS, LLC, A SERIES MAY ONLY BE OWNED BY ONE PERSON AND YOUR SERIES INTEREST MAY NOT BE TRANSFERRED.

 

(xi)      YOUR SERIES IS NOT ELIGIBLE FOR SERVICE OF PROCESS IN DELAWARE.  PRO-TIER, THROUGH ITS REGISTERED AGENT IN DELAWARE, WILL RECEIVE SERVICE OF PROCESS ON BEHALF OF YOUR SERIES AND PRO-TIER WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE NOTICE TO YOU AT THE ADDRESS FOR YOU ON FILE WITH PRO-TIER.

 

(xii)     YOUR SERIES WILL BE TERMINATED IF THE PRO-TIER MASTER SERIES IS DISSOLVED FOR ANY REASON.

 

(xiii)    YOUR SERIES IS SUBJECT TO TERMINATION IN EVENT THAT YOU DO NOT COMPLY WITH THE REQUIREMENTS TO MAINTAIN YOUR SERIES SUBSCRIPTION, INCLUDING PAYING THE ANNUAL FEE.

 

(xiv)    CHANGES IN LAWS MAY NEGATIVELY IMPACT YOUR SERIES.  FURTHER, YOUR SERIES IS SUBJECT TO TERMINATION IF PRO-TIER DETERMINES THAT THIS IS REQUIRED IN ORDER TO COMPLY WITH APPLICABLE LAW.

 

(2)       IN ORDER TO GET THE FULL BENEFITS OF LIMITED LIABILITY PROTECTION FROM YOUR SERIES, YOU MUST OPERATE YOUR BUSINESS THROUGH YOUR SERIES – MAINTAINING SEPARATE RECORDS, ASSETS AND LIABILITIES – AND NOT COMMINGLE YOUR PERSONAL RECORDS, ASSETS AND LIABILITIES WITH THOSE OF YOUR SERIES.

 

(3)       BY SUBSCRIBING FOR A SERIES OF PRO-TIER MASTER SERIES, YOU CONFIRM THAT YOU HAVE REVIEWED THE PRO-TIER MASTER SERIES, LLC CERTIFICATE OF FORMATION AND LIMITED LIABILITY COMPANY AGREEMENT AVAILABLE AT SERIES LLC AND UNDERSTAND THE TERMS AND RESTRICTIONS APPLICABLE TO SUCH SERIES AND THE FOREGOING RISKS AND YOU HAVE CONSULTED WITH A QUALIFIED ATTORNEY, ACCOUNTANT AND TAX ADVISOR.

 

3.              Privacy Policy.

 

PRO-TIER is committed to protecting the privacy of personal information you provide to PRO-TIER on this Site.  Please see PRO-TIER’s Privacy Policy for details.

 

4.              Account Registration.

 

By creating an account on this Site, you represent and warrant that any and all personal and business information you submit to PRO-TIER is your own information and is truthful and accurate.  It is your responsibility to notify us of any changes in your account information.  As an account holder, you are responsible for safeguarding your member account log-in information and are responsible for all activities on your account.  If you share your account with others, you are responsible for all activities on your account by those with whom you share the account.  Please immediately notify us of any unauthorized use of your account or any unauthorized or suspicious activity on your account.

 

5.              Subscription Terms.

 

By subscribing to any of the PRO-TIER Services, you acknowledge and agree to the following:

 

(1)       Fees. If you purchase a subscription, you must pay all charges to your account relating to that subscription, including applicable taxes and fees for the use of additional features not included as part of your subscription. You will be charged in accordance with the billing terms in effect at the time of your initial purchase. If you purchase a subscription that is charged in full on purchase, in each renewal period for that subscription, you must pay the total cost of the next subscription period by the first day of that period. For each subscription, your charge remains for each subscription period no matter if you access the services or this Site during any subscription term. In other words, EVEN IF YOU DO NOT USE THE SUBSCRIPTION YOU ARE RESPONSIBLE FOR SUBSCRIPTION FEES UNTIL YOU CANCEL YOUR SUBSCRIPTION OR IT IS OTHERWISE TERMINATED. For more information about canceling your subscription, see the Termination and Cancellation section below.

 

(2)       Billing. You must provide valid credit card information at the time of purchase to allow payment for the Initial Membership Term of a subscription.  For purposes of this Agreement, the “Initial Membership Term” begins on the date of purchase and runs for one one-year period.  The “Annual Membership Term” begins the date following the end of the Initial Membership Term and runs for one one-year period.

 

For any automatically renewing subscriptions, your subscription will renew at the end of the Initial Membership Term (the “Billing Date”) and at the end of each successive Annual Membership Term, until you notify us that you want to terminate your subscription under these subscription terms or your subscription is otherwise terminated. If you do not notify us, your credit card will automatically be charged for the renewal term of your subscription on your Billing Date. If your purchase date is on the 29th through 31st day of any month, your Billing Date for renewals in months with fewer days will fall on the last day of the month. PRO-TIER may adjust your Billing Date in subsequent renewal periods without notice. This will be reflected by a charge to your account on a pro-rated basis according to the number of days that have passed since the Billing Date of your latest renewal charge. Unless PRO-TIER otherwise notifies you in advance under these subscription terms, the renewal charge will be equal to the original purchase price for the subscription. You must pay PRO-TIER the fees associated with your subscription. Additional discounts may be available for members purchasing multiple months up front or as part of certain promotions.

 

(3)       Notice of Automatic Renewal. We may send a reminder email to your account’s email address of record approximately one week before your Billing Date. This notice is provided only as a courtesy. PRO-TIER is not obligated to provide this notice. You acknowledge that (i) your failure to read, (ii) your inability to receive, or (iii) PRO-TIER’s failure to send the email creates no liability for PRO-TIER or any Third-Party Service.

 

(4)       Use of Service. You acknowledge that PRO-TIER may establish general practices and limits concerning use of its subscriptions or Linked Third-Party Service. PRO-TIER is not liable for the deletion of or failure to store any content maintained or transmitted by any subscription benefit. PRO-TIER may subcontract any obligations required under a subscription without your consent.

 

(5)       Changes to Subscriptions.

 

(i)             General Changes. PRO-TIER may discontinue the offering of a subscription, including the functionality, content, or availability of any features of subscriptions or Linked Third-Party Services, at any time in its sole discretion. We may also impose limits on features and services or restrict your access to all or part of the subscription. If we add new features to a subscription, including adding Linked Third-Party Service, the new features will be subject to these subscription terms.

 

(ii)           Fee Adjustments. PRO-TIER may increase subscription fees by notifying you of new fees at least thirty (30) days before the beginning of a renewal term. The new fees will be effective on the first day of the renewal term. If you do not cancel your subscription, you will be deemed to have accepted the new fees for the renewal term and subsequent renewal terms (unless the fees are increased in the same manner for a subsequent renewal term). Reductions in fees become effective on the first day of the next renewal term without a pro rata adjustment for the period covered under the prior fee schedule.

 

(6)       Termination or Cancellation.

 

(i)             By PRO-TIER.

 

(1)           PRO-TIER may terminate your use of all or part of the subscriptions or Linked Third-Party Services in its sole discretion. As your sole remedy, we will refund to you any prepaid fees specifically related to the current term of that subscription or Linked Third-Party Service.

 

(2)           If you do not pay on the Billing Date, as described in the Billing section above, you can correct your credit card information and pay the outstanding amounts before the one-month anniversary of your Billing Date. If you have not made any payment on your subscription by the one-month anniversary of your Billing Date, PRO-TIER may suspend your service and terminate that subscription.

 

(3)           Your right to use a subscription is subject to any limits established by PRO-TIER or by your credit card issuer. If payment cannot be charged to your credit card or your charge is returned for any reason, including through a chargeback, PRO-TIER may, in its sole and absolute discretion, suspend or terminate your access and account, which will terminate these subscription terms and our obligations under them. If a charge made to your credit card is declined, PRO-TIER may make up to five attempts to bill that card over a thirty-day period.

 

(4)           If you wish to reactivate your account after a termination, there will be no setup or reactivation fees. However, if your account was terminated for nonpayment, it will be reactivated only after PRO-TIER receives the full amount past due. If an expired account is reactivated, the new term begins on the reactivation date.

 

(ii)           By Customer.

 

(1)           You may examine these subscription terms for ten days after you have received them. If during this period you decide that you are not satisfied with the subscription terms, you may have any prepaid amounts refunded, and these subscription terms will be considered voided as if they had not been issued.

 

(2)           You may cancel your subscription at any time by emailing [email protected] After you have cancelled, your subscription will remain active until the end of then-current period.

 

(7)       Services After Termination. After your subscription is terminated, you will not be able to access the corresponding subscription offerings.

 

6.              Ownership and Intellectual Property Rights.

 

(1)       This Site and all contents and materials made available on or through this Site (including, without limitation, text, instructions, forms, templates, samples, images, photos, graphics, artworks, marks, logos, videos, audios, directories, listings, databases, and software applications and tools) are property of PRO-TIER and/or third-party providers, and are protected by U.S. and foreign copyright, trademark and other intellectual property laws.

 

Except where expressly otherwise noted, all copyrightable contents and materials on this Site are copyright property of PRO-TIER.  Copyright © 2016 Pro-Tier, Inc. ALL RIGHTS RESERVED.

 

The “Pro-Tier” name and logo, and all visual and look-and-feel design elements of this Site (including, without limitation, page layouts, page headers, custom graphics and button icons) are proprietary trademarks, service marks, and/or trade dress of PRO-TIER.  Third-party marks and logos are trademarks and service marks of their respective owners.

 

(2)       Subject to your compliance with these Terms of Use, PRO-TIER grants you a revocable, conditional and limited license to use the PRO-TIER Services (including this Site and its contents and materials) solely for your own personal or internal business use in accordance with applicable laws, or if you are an attorney or professional, for your client’s personal or internal business use in accordance with applicable laws (the “Limited License”).  This Limited License is personal to you and is not transferable or assignable to others, and may be revoked and terminated by PRO-TIER at any time and for any reason (including, without limitation, if you violate these Terms of Use or any applicable law).  PRO-TIER reserves all rights not expressly granted herein.

 

(3)       You understand, acknowledge and agree that the Limited License we grant to you above is expressly subject to the following conditions:

 

(i)        Unless expressly authorized in writing by PRO-TIER, you may NOT copy, reproduce, sell, offer for sale, publish, distribute, license, sublicense, publicly perform or display, or alter, modify, edit, translate or otherwise create derivative works from, any content or material obtained from this Site (including, without limitation, any form, template or sample downloaded from this Site); except, however, that PRO-TIER permits you to make a limited number of copies of forms downloaded from this Site as reasonably necessary to satisfy applicable governmental or regulatory filing requirements and/or your own internal record-keeping needs.

 

(ii)       When using forms, templates and samples downloaded from this Site, you must keep intact all copyright, trademark, and other legal notices, disclaimers, markings and legends contained in such forms, templates and samples, and must NOT remove, alter, conceal, or otherwise tamper with any such notice, disclaimer, marking or legend.

 

Violation of any of the foregoing conditions may result in immediate revocation of the Limited License and termination of your access to this Site, as well as civil and/or criminal penalties.

 

7.              Prohibited Uses.

 

You may NOT:

 

(1)       use any of the PRO-TIER Services (including this Site and its contents and materials) other than in compliance with these Terms of Use and applicable laws;

 

(2)       impersonate another, or falsify account information, or make unauthorized use of another’s information;

 

(3)       decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive any proprietary software code or information associated with this Site or any portion or component thereof;

 

(4)       interfere in any way with the operation of the Site or any server, network or system associated with this Site, including, without limitation: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of this Site or any server, network or system associated with the Site; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another’s account that you are not expressly authorized to access;

 

(5)       use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access the Site or any server, network or system associated with the Site, or to extract, collect, harvest or gather content from this Site; or

 

(6)       frame or otherwise create a browser or border environment around any page or content of the Site.

 

8.              Customer Feedback, Comments, etc.

 

If you choose to submit feedback, comments, reviews, testimonials, suggestions, recommendations, etc. to PRO-TIER, you acknowledge and agree to the following:

 

(1)       Your submission is voluntary and consensual and is made without any condition or reservation of rights, including, without limitation, any condition of compensation, payment, credit, attribution, secrecy or confidentiality.  No contractual, fiduciary or confidential relationship of any kind (whether express or implied) is created between you and PRO-TIER by reason of your submission.  Your submission is not returnable and may be retained indefinitely by PRO-TIER.

 

(2)       You represent and warrant that your submission does not contain any confidential or proprietary information of others and does not violate any third-party right or any applicable law.

 

(3)       PRO-TIER will be free, without any obligation or restriction, to use your feedback, comments, reviews, testimonials, suggestions, recommendations, etc., in whole or in part, for any and all purposes of PRO-TIER (including, without limitation, improving or modifying the PRO-TIER Services, and advertising, marketing and promoting the PRO-TIER Services), throughout the world and in perpetuity.

 

9.              Disclaimer of Warranties.

 

ALL OF THE PRO-TIER SERVICES (INCLUDING THIS SITE AND ALL CONTENTS AND MATERIALS MADE AVAILABLE ON OR THROUGH THIS SITE) ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.  TO THE FULLEST EXTENT PERMITTED BY LAW, PRO-TIER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ALL OF THE PRO-TIER SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND NON-INFRINGEMENT.  WITHOUT LIMITATION TO THE GENERALITY OF THE FOREGOING, PRO-TIER DOES NOT WARRANT THAT: (I) THIS SITE AND ALL CONTENTS AND MATERIALS MADE AVAILABLE ON OR THROUGH THIS SITE WILL BE ACCURATE, ERROR-FREE, UP TO DATE, complete, or USEFUL OR SUITABLE FOR ANY USER’S PARTICULAR SITUATION, OR WILL BE UNINTERRUPTED, OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECT OR ERROR ON THIS SITE WILL BE CORRECTED; OR (III) THIS SITE AND ALL CONTENTS AND MATERIALS MADE AVAILABLE ON OR THROUGH THIS SITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  BUT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ALL WARRANTIES.

 

10.           Limitations of Liability.

 

EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL PRO-TIER BE LIABLE TO YOU (WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR ANY OTHER LEGAL OR EQUITABLE THEORY) FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA OR INFORMATION OF ANY KIND) ARISING OUT OF OR RELATED TO YOUR USE OF ANY OF THE PRO-TIER SERVICES, EVEN IF PRO-TIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OR DISPUTE WITH PRO-TIER IS TO DISCONTINUE YOUR USE OF THE PRO-TIER SERVICES.

 

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

11.           User Indemnity.

 

You agree to defend, indemnify and hold PRO-TIER harmless from and against any and all third-party claims (including any and all associated liabilities, damages, losses, costs and expenses) arising out of or related to: (i) your use or misuse of any of the PRO-TIER Services; (ii) your violation of these Terms of Use or any applicable law; and/or (iii) any information or material submitted by you.

 

12.           Links to Third Parties.

 

This Site may contain links to third-party websites, products and/or services (each, a “Linked Third-Party Site/Product/Service”).  Such links do not constitute or imply PRO-TIER’s approval, sponsorship or endorsement of any Linked Third-Party Site/Product/Service.  PRO-TIER is not responsible for and makes no representations or warranties, express or implied, regarding any Linked Third-Party Site/Product/Service.  You access and use a Linked Third-Party Site/Product/Service solely at your own risk.   When you access and use a Linked Third-Party Site/Product/Service, you are subject to that third party’s terms and conditions of use and privacy policy.  Any rights, claims or actions you may have in respect of a Linked Third-Party Site/Product/Service can only be brought directly against the provider of that Linked Third-Party Site/Product/Service.

 

13.           Reservation of Rights.

 

PRO-TIER reserves the right at any time, in its sole discretion, with or without notice, and without liability to you or other users, to: (i) modify, suspend, remove or terminate this Site or any portion thereof; (ii) restrict, limit, suspend or terminate any user’s access to this Site or any portion thereof; (iii) monitor user activities on this Site to verify and ensure compliance with these Terms of Use and applicable laws; and (iv) investigate any suspected or alleged misuse of this Site and cooperate with authorities in such investigation.

 

14.           Changes to these Terms of Use.

 

We reserve the right to make changes to these Terms of Use at any time.  If we make material changes that would impact your continued use of the PRO-TIER Services, we will use reasonable efforts to notify you of the changes, such as by posting a notice on this Site and/or to your PRO-TIER account, by notifying you via email, and/or by any other reasonable method, and may also ask you to affirmatively accept the changes at the time of your next account log-in on this Site.  By continuing to use any of the PRO-TIER Services after such notice and/or consent, you agree to be bound by these Terms of Use as modified.  Unless expressly otherwise stated, if you do not agree with changes to these Terms of Use, your sole and exclusive remedy is to discontinue use of the PRO-TIER Services.

 

15.           Additional Terms.

 

Certain PRO-TIER Services may be subject to additional posted guidelines, rules or terms of service (“Additional Terms”) and your use of such Services will be conditioned on your agreement to the Additional Terms.  If there is any conflict between these Terms of Use and the Additional Terms, the Additional Terms will control for that Service, unless the Additional Terms expressly state that these Terms of Use will control.

 

16.           Internal Revenue Service (IRS) Circular 230 Tax Advice Disclosure.

 

To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in any communication from the Company is and was not intended or written to be used, and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting, marketing or recommending to another party any matters addressed therein.

 

17.           No Guarantee.

 

LAWS, REGULATIONS, AND ADMINISTRATIVE REQUIREMENTS CHANGE OFTEN, AND THEIR APPLICATION AND IMPACT VARY FROM COMPANY TO COMPANY AND INDUSTRY TO INDUSTRY. FORMS, EMAILS AND OTHER COMMUNICATIONS ARE NOT INTENDED TO PROVIDE OR SUBSTITUTE FOR ACCOUNTING, LEGAL, BUSINESS, TAX, OR OTHER PROFESSIONAL ADVICE OR SERVICES. THEY ARE OFFERED FOR INFORMATION PURPOSES ONLY. COMPLIANCE WITH ALL LAWS AND REGULATIONS REMAINS YOUR SOLE AND ABSOLUTE RESPONSIBILITY. BEFORE TAKING ANY BUSINESS OR LEGAL ACTION BASED ON INFORMATION FROM THIS SITE OR ANY EMAIL OR COMMUNICATION, YOU SHOULD CONSULT WITH A FINANCIAL OR LEGAL PROFESSIONAL TO VERIFY DEADLINES AND DETERMINE WHETHER SUCH ACTIONS ARE APPROPRIATE FOR YOU BASED ON YOUR PERSONAL OR BUSINESS NEEDS. NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ARE GIVEN REGARDING THE LEGAL OR OTHER CONSEQUENCES RESULTING FROM THE USE OF ANY INFORMATION ON THIS SITE OR ANY SUBSCRIPTION.

 

18.           Governing Law.

 

All matters relating to the PRO-TIER Services (including this Site) and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

 

19.           Arbitration Agreement.

 

You and PRO-TIER both agree that any dispute or claim relating to your use of any of the PRO-TIER Services shall be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify and (ii) PRO-TIER may bring actions in court to enforce its intellectual property rights.  The United States Federal Arbitration Act and federal arbitration law apply to these Terms of Use.

 

There is no judge or jury in arbitration, and court review of an arbitration award is limited.  However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the provisions of these Terms of Use as a court would.

 

To begin an arbitration proceeding, you must send an email requesting arbitration and describing your claim, to: [email protected] Attn: Legal / Arbitration Notice.

 

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes.  The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.  Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.  You and PRO-TIER may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you are located or at another mutually agreed location.

 

YOU AND PRO-TIER EACH AGREE THAT any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.  If for any reason a claim proceeds in court rather than in arbitration, you and PRO-TIER each waive any right to a jury trial.

 

20.           Contact Us.

 

If you have any questions about these Terms of Use, please contact us:

 

Pro-Tier, Inc.

Tel:      (415) 857-5048

Email: [email protected]