Prophetly Terms & Conditions
Please read these Terms carefully. By using Prophetly or signing up for an account, you’re agreeing to these Terms, which will result in a legal agreement between you and Simmons Sharpe, creators of Prophetly (“Agreement”). Prophetly (“Prophetly,” “we,” or “us”) is an online marketing platform (the “Service”) offered through the URL www.prophetly.com (the “Website”) that allows you to, measure and analyze marketing campaigns (each a “Campaign,” and collectively, “Campaigns”), and their return on investment (“ROI”). Prophetly is operated by Simmons Sharpe Inc. (”SSI”). SSI has employees, independent contractors, and representatives (“our Team”). As a customer of the Service or a representative of an entity that’s a customer of the Service, you’re a “Member” according to this Agreement (or “you”).
These Terms of Use (“Terms”), along with our Privacy Policy, define the terms and conditions under which you’re allowed to use the Service in accordance with the Agreement, and how we’ll treat your account while you’re a Member. If you don’t agree to these Terms, you must immediately discontinue your use of the Service.
If you have any questions about our Terms, feel free to contact us.
Account
1. Eligibility
In order to use the Service, you must:
1. be at least eighteen (18) years old and able to enter into contracts;
2. complete the registration process;
3. agree to these Terms;
4. provide true, complete, and up-to-date contact and billing information; and
5. not be based in Cuba, Iran, North Korea, Syria, or any other country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist-supporting” country.
By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.
SSI may refuse service, close accounts of any users, and change eligibility requirements at any time.
2. Term
When you sign up for the Service and agree to these Terms, the Agreement between you and SSI is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a Prophetly account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. Entering your username and clicking the “Get Started” button means that you’ve officially “signed” and accepted the Terms. If you sign up for the Service on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.
3. Closing Your Account
You or SSI may terminate the Agreement at any time and for any reason by terminating your Prophetly account or giving notice to the other party. We may suspend the Service to you at any time, with or without cause. If we terminate your account without cause, and your account is a paid account, we’ll refund a prorated portion of your monthly prepayment or reimburse you for unused email credits . We won’t refund or reimburse you in any other situation, including if your account is suspended or terminated for cause, like a breach or any violation of the Agreement. If your account is inactive for 24 or more months, we may terminate the account. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your Campaigns. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed.
4. Changes
We may change any of the Terms by posting revised Terms of Use on our Website and/or by notifying you of the new Terms by sending an email to the last email address you gave us or displaying prominent notice within the Service. Unless you terminate your account within 10 days, the new Terms will be effective immediately and apply to any continued or new use of the Service. We may change the Website, the Service, or any features of the Service at any time, and we may discontinue the Website, the Service, or any features of the Service at any time.
5. Account and Password
You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that Prophetly is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords that are caused by or result from your negligence. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.
6. Account Disputes
We decide who owns an account based on the content in that account, and if multiple people or entities are identified in the content, then we’ll rely on the contact and profile information listed for that account. In cases where differing contact and profile information is present, we’ll require you to resolve the matter through proper channels outside of Prophetly.
When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account.
Rights
13. Proprietary Rights Owned by Us
You will respect our proprietary rights in the Website and the software used to provide the Service (proprietary rights include, but aren’t limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property).
14. Proprietary Rights Owned by You
We may use your anonymized data to establish industry benchmarks for various metrics, such as clickthrough rates, conversation rates, and cost per acquisition only as described in these Terms and our Privacy Policy.
15. Privacy Policy
Your privacy is important to us. Please read our Privacy Policy for information regarding how we collect, use, and disclose your Content and personal information and protect your privacy when you use the Service.
16. Right to Review Campaigns
We may view, copy, and internally distribute data from your Campaigns and account to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Service. We use these Tools to find Members who violate these Terms or laws and to study data internally to make the Service smarter and create better experiences for Members and their contacts.
Rules and Abuse
17. General Rules
Prophetly doesn’t allow accounts with the primary purpose of promoting or inciting harm toward others or the promotion of discriminatory, hateful, or harassing content. We may suspend or terminate your account if we determine, in our sole discretion, that you are either:
an organization that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm;
a person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm; or
a person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.
If you violate any of these rules, then we may suspend or terminate your account.
18. Reporting Abuse
If you think anyone is violating any of these Terms, please notify us immediately.
19. Bandwidth Abuse/Throttling
You may only use our bandwidth for your Prophetly Campaigns. We provide image and data hosting only for your Prophetly Campaigns, so you may not host images on our servers for anything else (like a website). We may throttle your sending or connection through our API at our discretion.
20. Compliance with Laws
You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLB, EU data privacy laws (including the General Data Protection Regulation) (collectively, “EU Data Privacy Laws”), United States export control laws and regulations and economic sanctions laws and regulations (“U.S. Export Control Laws and Regulations”), or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Service, then we won’t be liable if the Service doesn’t meet those requirements. You may not use the Service for any unlawful or discriminatory activities.
If you collect any personal information pertaining to a minor and store such information within your Prophetly account, you represent and warrant that you have obtained valid consent from the minor according to the applicable laws of the jurisdiction in which the minor lives, or that you have otherwise obtained the required parental or guardian consent according to the applicable laws of the jurisdiction in which the minor lives.
You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this Section 20.
21. Export Controls
The software that supports the Service (the “Software”) is subject to U.S. Export Control Laws and Regulations. Export laws are set up by the government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Software may be downloaded or otherwise exported or re-exported in violation of U.S. Export Control Laws and Regulations and any other applicable export laws and regulations (collectively, “Export Control Laws”). Therefore, you agree that you won’t, directly or indirectly through a third party, allow the Software or your Campaigns to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any Export Control Laws. In addition, you certify that neither you nor any principals, officers, directors, or any person or entity you know to be directly involved with the use of the Service is designated on any U.S. government list of prohibited or restricted persons.
It’s important to note that this Section 21 isn’t meant to provide a comprehensive summary of the Export Control Laws that govern Prophetly, the Service, or the Software. You’re downloading and using the Software at your own risk, and it’s your responsibility to consult with a legal advisor to make sure your use of the Service and the Software complies with applicable laws.
Liability
22. Limitation of Liability
To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Website and the Service, including any downloads from the Website. We and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages. In any calendar month, our total liability to you arising under or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month.
In addition, for the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Service in violation of our Acceptable Use Policy, regardless of whether we terminate or suspend your account due to such violation.
23. No Warranties
To the maximum extent permitted by law, we provide the Website and the Service as-is. This means that, except as expressly stated in these Terms, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Website and/or Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, which are to the fullest extent permitted by law, excluded from the Agreement. Since Members use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs.
24. Indemnity
You agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, including legal fees and expenses, that directly or indirectly result from (a) your Content, (b) your use of the Service, (c) your violation of any laws or regulations, (d) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms, (e) any misrepresentations made by you, or (f) a breach of any representations or warranties you’ve made to us.
25. Legal Fees and Expenses
If we file an action against you claiming you breached these Terms and we prevail, we’re entitled to recover all reasonable legal fees, expenses, and any damages or other relief we may be awarded.
26. Equitable Relief
If you violate these Terms, then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
27. Subpoena Fees
If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
28. Disclaimers
We and our Team aren’t responsible for the behavior of any third parties, linked websites, or other Members.
Fine Print
29. Notice to U.S. Government End Users
The Software and Website, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:
1. only as Commercial Items,
2. with the same rights as all other end users, and
3. according to the Terms.
Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is Simmons Sharpe Inc., 33 Davies Avenue Level 2, Toronto, Ontario, Canada M4M 2A9.
30. Assignments
You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.
31. Choice of Law
The Province of Ontario’s laws, except for conflict of laws rules, will apply to any dispute related to the Agreement or the Service. Any dispute related to the Agreement or the Service itself will be decided by the state and federal courts in Ontario, and each party will be subject to the jurisdiction of those courts.
32. Force Majeure
We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers.
33. Survivability
Even if this Agreement is terminated, the following sections will continue to apply: Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.
34. Severability
If it turns out that a section of these Terms isn’t enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.
35. Interpretation
The headers and sidebar text are provided only to make these Terms easier to read and understand. The fact that we wrote these Terms won’t affect the way the Agreement is interpreted.
36. Amendments and Waiver
Amendments or changes to the Agreement won’t be effective until we post revised Terms on the Website. If we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.
37. No Changes in Terms at Request of Member
Because we have so many Members, we can’t change these Terms for any one Member or group.
38. Further Actions
You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.
39. Notification of Security Breach
In the event of a security breach that may affect you, we’ll notify you of the breach once we have determined, in our discretion, that it occurred and will provide a description of what happened.
40. Notices
Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Website. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, Prophetly, 33 Davies Avenue Level 2, Toronto, Ontario, M4M 2A9, or any addresses as we may later post on the Website.
41. Entire Agreement
This Agreement and our Privacy Policy make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings.
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