PRODASH TERMS AND CONDITIONS OF USE
Last Updated: 2020
1. Privacy & Confidentiality
1.1 Confidential Information. The term "Confidential Information" shall mean any and all (a) confidential knowledge, data or information related to ProDash's business or its actual or anticipated research or development, including without limitation (i) trade secrets, inventions, ideas, processes, software programs and subroutines, computer source and object code, algorithms, technology, data, formulae, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products, services, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, competitors, suppliers, and customers; (iii) information regarding the personal data, skills and/or compensation of ProDash's employees, contractors, and any other service providers of ProDash; (iv) the existence of any business discussions, negotiations, or agreements between ProDash and any third party; and (v) any other confidential information of ProDash and (b) any confidential knowledge, data or information of a third party that ProDash is under a duty to keep confidential.
1.2 Restrictions on Use and Disclosure. You agree you will hold in confidence and will not disclose, use, discuss, or publish any Confidential Information except (i) to the extent necessary to enable you to perform any obligations for ProDash; (ii) only as expressly authorized in writing by ProDash; and (iii) in compliance with any applicable ProDash policy. The obligations of confidentiality set out in this Agreement shall apply, with respect to Confidential Information that constitutes a trade secret of ProDash or of any third party, at all times during your relationship with ProDash and at all times thereafter so long as such information remains a trade secret, and with respect to Confidential Information that does not constitute a trade secret of ProDash, at all times during your relationship with ProDash and for a period of five (5) years thereafter. Notwithstanding anything in Section 1, with respect to any Confidential Information of a third party for which ProDash is subject to further restrictions on use and non-disclosure (including a longer non-disclosure period), you agree to abide by such additional restrictions (including any such longer non-disclosure period).
1.3 Recognition of ProDash's Rights in Confidential Information. You acknowledge and agree that ProDash and its licensors and suppliers own all right, title, and interest in and to all Confidential Information and all intellectual property rights therein. You hereby assign to ProDash any rights you may have or acquire in any and all Confidential Information and recognize that all Confidential Information shall be the sole and exclusive property of ProDash and its assigns.
1.4 Recognition of Your Rights to Report Violations of Law. You are hereby provided notice that under the 2016 Defend Trade Secrets Act (DTSA): (1) no individual will be held criminally or civilly liable under federal or state trade secret law for the disclosure of a trade secret (as defined in the federal Economic Espionage Act and state law), provided the disclosure: (a) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public. Additionally, an individual who pursues a lawsuit for retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the individual’s attorney and use the trade secret information in the court proceeding, provided the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.
Also, pursuant to Securities Exchange Commission Rule 21F-17, nothing in this Agreement impedes or prohibits you from reporting, without prior notice to or authorization from ProDash, an event or conduct that you reasonably and in good faith believe is a violation of any law or rule to an appropriate federal, state or local law enforcement agency authorized to receive such a report (such as the Securities and Exchange Commission, Department of Justice, Internal Revenue Service, Equal Employment Opportunity Commission, and the Department of Labor, including the NLRB or OSHA), or cooperating in an investigation or proceeding conducted by such a government agency. In addition, nothing in this Agreement prohibits or otherwise restricts you from lawfully reporting waste, fraud, or abuse related to the performance of a government contract to a designated investigative or law enforcement representative of a federal department or agency authorized to receive such information (e.g., agency Office of the Inspector General).
2. Your Responsibilities
A. Accurate and Current Information
You may be required to provide personal information when using or accessing certain portions of the Site, registering as a user of the Site, or using services offered through the Site. In doing so, you agree that you will provide true, accurate, current, and complete information when prompted and maintain and update such information so that it is true, accurate, current, and complete at all times.
B. Login Information
When you register to become a user of the Site, you may be asked to select a username and password. We may refuse to grant you a username or revoke your username for any reason in our sole discretion. You are solely responsible for safeguarding and preventing unauthorized access to the username, password, and any other information that you use to access the Site (the “Login Information”). You agree not to disclose your Login Information to any third party and are responsible for the activity of any individual using your Login Information to access the Site, and may be liable for any losses or damages related thereto, regardless of whether or not you authorized that activity. PRODASH WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM OR RELATED TO YOUR FAILURE TO ADEQUATELY SAFEGUARD YOUR LOGIN INFORMATION OR SOMEONE ELSE’S USE OF YOUR LOGIN INFORMATION, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. You must immediately notify ProDash of any unauthorized use of your Login Information. Additionally, you agree not to use any third party’s Login Information at any time.
You are responsible for obtaining and maintaining any equipment and services needed in order to access and use the Site and for paying all related charges.
D. Maintaining Integrity of Site
To maintain the integrity of the Site, you agree not to use the Site to (i) violate any local, state, national or international law or regulation, (ii) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable, (iii) transmit any material that you know to be false, inaccurate, or misleading, (iv) stalk, harass, bully, or harm another individual, (v) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, (vi) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity, or (vii) alter or modify any content or component of the Site without express authorization. You further agree not to use or launch any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” or the like, that access the Site.
E. Certain Restrictions.
You agree that (a) during the term of your use of the Site and for a period of five (5) years thereafter, you will not, without ProDash's express written consent, engage in any employment or business activity that is competitive with, or would otherwise conflict with ProDash, and (b) for the period of five (5) years thereafter, you will not, either directly or indirectly, solicit, attempt to solicit, or assist in the solicitation of any employee, independent contractor, or consultant of ProDash in order to become an employee, consultant, or independent contractor for any other person or entity that engages in the licensure, sale, or distribution of products and/or services that are competitive with any current or announced product and/or service of ProDash.
3. Access to the Site
We do not represent or warrant that the Site, or any part of it, is appropriate or available for use in any particular jurisdiction or that we are soliciting business in any such jurisdiction. You access the Site on your own initiative and at your own risk, and are responsible for complying with all applicable laws, rules, and regulations.
We may limit the availability of the Site, in whole or in part, to any person, geographic area, or jurisdiction we choose, at any time and in our sole discretion. In particular, the Site currently is not intended for use by residents of the European Union. Additionally, the Site is not intended for children under eighteen (18) years of age. If you are under eighteen (18) years of age, you may not use the Site. YOU AGREE THAT BY USING THE SITE, YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.
ProDash reserves the right, in its sole discretion, to terminate your access to all or part of the Site at any time, for any reason, with or without notice. YOU AGREE THAT PRODASH SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR REMOVING ANY MATERIALS OR TERMINATING YOUR OR ANY OTHER PERSON’S ACCESS TO THE SITE (OR ANY PORTION THEREOF).
The Site is owned and operated by ProDash.
Unless otherwise noted, all materials that are part of the Site, including but not limited to (i) images, text, names, slogans, logos, illustrations, designs, icons, photographs, products, processes, programs, technology, video clips, logos, artwork, computer code, Forms, and written and other materials (collectively, “Content”), (ii) the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such Content, (iii) the compilation of all Content (exclusive of content provided via links to third party websites), and (iv) all software used in the operation or creation of this Site, are owned, controlled, or licensed by ProDash, one of its affiliates, or by third parties who have licensed their materials to ProDash, and are protected by copyright, patent, trademark, and trade dress laws and/or other intellectual property rights and unfair competition laws.
Nothing on this Site, including access hereto, shall be construed to confer any license under any intellectual property rights of ProDash or any third party, whether by estoppel, implication, or otherwise. ProDash reserves all rights not expressly granted herein.
6. Use of the Site and Content
7. Compliance with Intellectual Property Laws
When accessing and/or using the Site, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Site is at all times governed by and subject to laws regarding patent, copyright, trademark, and other intellectual property ownership. You agree not to copy, reproduce, republish, capture, download, upload, archive, post, display, publish, stream, transmit, broadcast, distribute, sell, resell, modify, translate, decompile, disassemble, reverse engineer, or exploit in any way or for any purposes any information or content in violation of any patent, copyright, trademark, or other intellectual property or proprietary rights. You agree to abide by laws regarding intellectual property use and ownership, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any content you provide or transmit or that is provided or transmitted using your ProDash user account.
ProDash has adopted a policy that provides for the immediate removal of any content, article, or materials that have infringed on the rights of ProDash or of a third party or that violate intellectual property rights generally. This policy is to remove such infringing content or materials and investigate such allegations immediately.
A. Copyright Infringement Notice
ProDash has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site. ProDash has adopted a policy that provides for the immediate suspension and/or termination of any Site user who is found to have infringed the rights of ProDash or of a third party, or otherwise violated any intellectual laws or regulations. This policy is to act expeditiously upon receipt of proper notification of claimed copyright infringement to remove or disable access to the allegedly infringing content. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want ProDash to delete, edit, or disable the material in question, you must provide us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple, a representative list of such works; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and email address; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above written information must be sent to us at:
By submitting such written information, you acknowledge and agree that ProDash may disclose the information and any related communications to any users who posted the material identified in such notice or to other third parties.
If you believe that the material that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material, you may send a written counter-notice containing the following information to the aforementioned Copyright Agent: (i) your physical or electronic signature; (ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled; (iii) a statement that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and (iv) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Des Moines, Iowa, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
By submitting a counter-notice, you acknowledge and agree that ProDash may disclose such information and any related communications to the person who submitted the original notice or to other third parties.
8. Unsolicited Submissions
Except as may be required in connection with your use of the Site, ProDash does not want you to submit confidential or proprietary information to us through the Site. All ideas, know-how, concepts, techniques, comments, criticisms, reports, or other feedback submitted to ProDash through or in association with the Site shall be considered non-confidential and ProDash property. By providing such submissions to ProDash, you hereby assign to ProDash, at no charge, all worldwide right, title, and interest in and to the submissions and any intellectual property rights associated therewith. ProDash shall be free to use and/or disseminate such submissions on an unrestricted basis for any purpose. You acknowledge that you are responsible for the submissions that you provide, including their legality, reliability, appropriateness, originality, and content. You further acknowledge and agree that you have no expectation of compensation or confidentiality of any nature, and that ProDash has no duties to you (including any duty to compensate you), with respect to such submissions.
9. External Links
You acknowledge that you bear all risks associated with access to and use of content provided on a third party website and agree that ProDash is not responsible or in any way liable for any loss or damage of any sort you may incur from dealing with a third party. It is your responsibility to review any third party website to confirm you understand and agree to the terms and conditions thereof. You should contact the site administrator for the applicable third party website if you have any concerns regarding such links or the content located on any such third party website.
10. Disclaimer of Warranties
THE SITE AND ALL CONTENT OR OTHER INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITE IS PROVIDED BY PRODASH ON AN “AS-IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PRODASH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, CONCERNING THE SITE AND ALL CONTENT OR OTHER INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
PRODASH MAKES NO WARRANTY THAT (A) THE SITE WILL MEET YOUR REQUIREMENTS; (B) THE SITE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, AND/OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR ANY CONTENT OR MATERIALS OFFERED THROUGH THE SITE WILL BE ACCURATE AND/OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIALS PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS.
YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR OWN DISCRETION AND AT YOUR OWN RISK. PRODASH SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS, INFORMATION, OR SOFTWARE.
11. Limitation of Liability
EXCEPT AS PROHIBITED BY LAW, IF, notwithstanding the foregoing, THERE IS LIABILITY FOUND ON THE PART OF PRODASH, IT SHALL BE LIMITED TO the aMOUNT PAID BY YOU TO PRODASH DURING THE SIX (6) MONTHS PRIOR TO THE DATE of the initial claim made against PRODASH, AND UNDER NO CIRCUMSTANCES WILL THERE BE CONSEQUENTIAL OR PUNITIVE DAMAGES.
12. Exclusions and Limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent ProDash may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
Although we cannot make an absolute guarantee of system security, ProDash takes reasonable steps to maintain security. If you have reason to believe system security has been breached, contact us by email at info@ProducerDashboard.com
You are prohibited from violating or attempting to violate the security of the Site, including but not limited to, (i) accessing information not intended for you or logging onto a server or an account which you are not authorized to access, (ii) attempting to probe, scan, or test the vulnerability of a system or network or to breach security without authorization, (iii) attempting to interfere with or disrupt the service of any other user, host, or network, including submission of a virus to the Site, overloading, flooding, spamming, mail bombing, or crashing the Site, (iv) knowingly transmitting any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or (v) sending unsolicited email including promotions and/or advertisements of products or services to ProDash or any employees of ProDash. You shall not use any device, software, or other tool to interfere with the property and normal operation of this Site or any activity being conducted via this Site.
Violations of system or network security could result in civil and/or criminal action against you. ProDash will investigate occurrences that may involve such violations and may involve and cooperate with local and federal law enforcement in prosecuting such violations.
16. Governing Law; Venue
The Site is hosted in the United States of America and is intended for use by residents of the United States of America only. All matters relating to the Site are governed exclusively by the laws of the State of Iowa in the United States of America and not the jurisdiction in which you are located.
Both you and ProDash (referred to collectively in only this Section 17 as “we”) agree that we are committed to avoiding adversarial proceedings of any kind and to seeking instead a system for collaboration that will best serve the needs of all. Accordingly, if we find ourselves in disagreement, we each commit to dedicate our efforts towards bringing ourselves back into agreement as quickly as possible by talking together honestly, openly, in good faith, and with a commitment to a sense of fairness for all involved.
The provisions of this Section 17 may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees, and expenses, including reasonable attorneys’ fees, to be paid by the party against whom enforcement is ordered.
Either party may commence the mediation by providing to the other written notice setting forth the subject of the dispute, claim, or controversy, and the relief requested. Within ten (10) days after the receipt of the foregoing notice, each recipient shall deliver a written response to the sender. The initial mediation be held within thirty (30) days after the initial notice.
Unless we otherwise agree, we shall conduct the mediation in Des Moines, Iowa, U.S.A. and select a mutually agreeable mediator. If we are unable to agree upon a mediator within ten (10) days of the request for mediation, a mediator shall be appointed as set out in the Mediation Procedures. We shall agree to a mutually convenient date and time to conduct the mediation; provided that the mediation must occur within thirty (30) days of the appointment of the mediator unless a later date is agreed to by both parties in writing. Each party shall designate an executive to have full and complete authority to resolve the Dispute and to represent its interests in the mediation, and each party may, in its sole and absolute discretion, include any number of other representatives in the mediation process. At the commencement of the mediation, either party may request to submit a written mediation statement to the mediator.
The costs and expenses of the mediation shall be borne equally by each party to the Dispute, and each party shall bear its own fees, costs, and expenses; provided that, subject to the limitation provided in Section 11 above, the mediator shall have the right to allocate the costs and expenses between each party as the mediator deems equitable.
We each agree that our respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including arbitration, small claims court, or other dispute resolution procedures.
Furthermore, we each acknowledge and agree that mediations are settlement negotiations, and that, to the extent allowed by applicable law, all offers, promises, conduct, and statements, whether oral or written, made in the course of the mediation by any of the parties or their agents shall be confidential and inadmissible in any arbitration or other legal proceeding involving the parties; provided, however, that evidence which is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation/collaborative process.
In the event of any conflict between the Mediation Procedures and the provisions of this Section 17, the provisions of this Section 17 shall govern and control.
B. Small Claims and Arbitration
We each agree to resolve all disputes and claims between us that have not been settled through informal discussion or mediation in small claims court or by binding arbitration.
i. Arbitration Notice
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to ProDash should be addressed to info@ProducerDashboard.com (“Notice Address”). The Notice must describe the nature and basis of the claim or dispute and set forth the specific relief sought (“Demand”). If we do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, either party may commence an arbitration proceeding.
ii. Arbitration Rules
The arbitration shall be conducted by three (3) arbitrators (the “Tribunal”). Each party shall each have the right to appoint one (1) arbitrator and the third arbitrator (who shall serve as the chairman of the Tribunal) shall be appointed by the two party-appointed arbitrators within twenty (20) days after the date of the appointment of the last arbitrator appointed by or on behalf of the parties. Unless we agree otherwise in writing, the seat of the arbitration, and the place of all meetings and hearings in the arbitration, shall be in Des Moines, Iowa, U.S.A. The arbitration shall be conducted in English and all evidence submitted shall be submitted in English.
During the arbitration, the amount of any settlement offer made by either party shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which the party is entitled.
In the event of any conflict between the Arbitration Rules and the provisions of this Section 17, the provisions of this Section 17 shall govern and control.
We agree to facilitate the arbitration by (a) cooperating in good faith to expedite (to the maximum extent practicable) the conduct of the arbitration, (b) making available to one another and to the Tribunal for inspection and extraction all documents, books, records, and personnel under their control or under the control of a person controlling or controlled by such party if determined by the Tribunal to be relevant to the Dispute, (c) conducting arbitration hearings to the greater extent possible on successive business days, and (d) using reasonable efforts to observe the time periods established by the Rules or by the Tribunal for the submission of evidence and briefs.
iv. Fees, Costs, and Expenses
The costs and expenses of the arbitration, including the fees of the Tribunal, shall be borne equally by each party to the Dispute, and each party shall pay its own fees, costs, and expenses; provided that, subject to the limitation provided in Section 11 above, the Tribunal shall have the right to allocate the costs and expenses between each party as the Tribunal deems equitable.
v. Tribunal Decision
The Tribunal shall provide a comprehensive written decision with detailed findings of fact and conclusions of law. The Tribunal shall decide any such Dispute strictly in accordance with the governing law specified in Section 16 above. The Tribunal shall not have the authority to award damages against either party in excess of the limitations of liability set forth in Section 11.
A decision, award or other action shall be considered the valid action of the Tribunal if supported by the affirmative vote of a majority of the arbitrators. The arbitration decision, award, or other action shall be final, conclusive, and binding on the parties and may be entered in, and enforced by, any court having competent jurisdiction. The parties expressly agree to waive the applicability of any laws and regulations that would otherwise give the right to appeal the decisions of the Tribunal so that there shall be no appeal to any court of law for the award of the Tribunal, and a party shall not challenge or resist the enforcement action taken by any other party in whose favor an award of the Tribunal was given.
B. No Refunds
All payments for the use of the Site are 100% non-refundable once paid.
C. Inaccuracies and Errors
The information and materials available on the Site and the Content may contain inaccuracies and/or errors and ProDash makes no warranty or representation with respect to the accuracy or completeness thereof.
D. Right to Refuse
You acknowledge that ProDash reserves the right to refuse service to anyone and to cancel user access at any time.
E. Personal Use
The Site is made available for your personal use on your own behalf.
F. Section Headings
The headings used herein are for convenience only and have no legal effect.
G. Severability and Enforcement
H. Entire Agreement