These Terms of Use (the “Terms of Use") govern access and use of Proformex’s System (defined herein) and any related services provided by Proformex, LLC (“Proformex”). You, the User (defined herein), accept these Terms of Use by using the System, clicking “I agree”, or taking any other affirmative action indicating acceptance of these Terms of Use, effective immediately upon such acceptance. If you do not agree to these Terms of Use, then you are not authorized to use the System.

I. Defined Terms

  1. Intellectual Property” means patents, inventions, patentable matter, whether or not a patent has been issued with respect to such matter; trademarks and service marks, whether or not registered; copyrights and any work of authorship in which a copyright may subsist; technical data, know-how and other information that may be protected as a “trade secret”; and applications and registrations for, and claims with respect to, any of the foregoing.
  2. Order Form” means the Order Form executed by the Subscriber pursuant to a Subscriber Agreement.
  3. Subscriber” means the person(s) or entity responsible for payment to Proformex and bound by a Subscriber Agreement, which shall run in conjunction with these Terms of Use.
  4. Subscription” means access to the System on behalf of Subscriber as set forth on the Order Form.
  5. “System” means the software and computer systems, procedures, databases, and programs owned, created, obtained, and maintained by Proformex for purposes of integrating, adding, managing, and monitoring data and information related to life insurance, annuity contracts, life settlement contracts and premium financing of life insurance to be used by User through www.proformex.com, as may be updated from time to time at the sole discretion of Proformex.
  6. User” means any person using the System, and such person must be an employee, agent or affiliate of Subscriber in good standing, authorized by Subscriber, and permitted to access policy information.

II. Use Rights

To use the System, you must be an authorized User. You hereby represent and warrant that you are an authorized User. User will not permit the System to be used to manage or monitor policies on behalf of any party that does not have a Subscription. Furthermore, User will not allow any other party, including, without limitation, any competitor of Proformex, to view, access, or use the System in any manner whatsoever.

III. User Login Identities

User must register a unique user account (“User ID”) and create a unique and secure password. User must maintain confidentiality of any and all login identities and password(s). User ID(s) are unique to a single person and are non-transferrable. Only the registered User may use the User ID. User is responsible for any costs, expenses, and third-party claims resulting from the unauthorized use of any login identities and password(s). User must promptly notify Proformex in writing of any lost or stolen passwords.

IV. Confidentiality

All Confidential Information (defined below) disclosed by either Proformex or User in connection with these Terms of Use will remain the exclusive and confidential property of the disclosing party. For purposes of these Terms of Use, “Confidential Information” shall mean any non-public information of a proprietary or confidential nature, including but not limited to User data and personal information, policies, business records, financial information, strategies, methods, pricing or practices. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least reasonable care in protecting the Confidential Information of the disclosing party. The receiving party will limit access to Confidential Information to its employees and agents with a need to know and will instruct such employees and agents to keep such information confidential. At no time shall the receiving party use, sell, release, or divulge Confidential Information to any other party for any purpose whatsoever. Confidential Information shall not include information that: (i) is or becomes publicly known through no wrongful act, fault or negligence of the receiving party; (ii) was disclosed to the receiving party by a party who may disclose such information without violating any confidentiality obligation; (iii) is approved for release by prior authorization of the disclosing party or another authorized party; or (iv) is publicly disclosed pursuant to any law, ruling, subpoena, court order, or requirement of a governmental agency; provided, however, the receiving party will give the disclosing party advance notice of any such required disclosure so that the disclosing party may obtain a protective order or such other relief as it may deem necessary to protect its interests. Expiration or termination of these Terms of Use shall not relieve either party of any of its obligations under this Section IV.

V. Copyright, Intellectual Property and Restrictions

All rights, title and interest in the System and Services (and all Intellectual Property rights therein) are owned by Proformex. Each Subscriber and User acknowledges and agrees that Proformex exclusively owns all Intellectual Property rights embodied in or associated with: (i) the Services, (ii) all aggregate data in the Services; and (iii) any and all updates, improvements, enhancements, creations, developments, modifications, customizations, inventions, technical information, and documentation created or provided by, or on behalf of, Proformex.

VI. Use of Data and Information

Each Subscriber and User hereby authorizes Proformex to use, analyze, and disclose all non-personably identifiable, non-User-identifiable, non-Subscriber-identifiable, aggregate data related to Subscriber’s and User’s use of the system.

VII. Termination

Proformex may terminate User’s access to the System if User does not comply with any of the material terms of these Terms of Use.

VIII. Restrictions, Representations and Warranties

Each Subscriber and User hereby represents and warrants that it, and its employees, contractors, representatives and/or agents, shall not: (a) copy, duplicate, distribute, alter, modify, adapt, translate, reverse engineer, decompile, disassemble or make derivative works of the System; (b) use the System to create any product or service that competes with the System or any component of the System; (c) resell, assign, convey, sublicense or allow any unauthorized third party to benefit from or access the System; (d) use any part of the System for the purpose of violating, or in a manner that violates, any foreign, federal, state or local law, rule or regulation, including but not limited to all applicable securities laws; (e) use the System in a manner that infringes or violates any intellectual property rights, publicity, privacy, confidentiality, contractual or other rights; (f) transmit information that is defamatory, offensive, misleading, false, harmful to minors, or obscene; (g) upload or transmit personally identifiable health information or full social security numbers; (h) send or store viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs in connection with the use of the System; or (i) share a User ID or password with any unauthorized user. Furthermore, each User represents and warrants that (1) it is authorized by Subscriber to acquire a User account and access the System on Subscriber’s behalf; and (2) all data it enters into the System is either owned by Subscriber or its Users. Each Subscriber and User is solely responsible for the completeness and/or accuracy of any information it inputs into the System.

IX. Outside Sources

Each Subscriber and User acknowledges that outside entities, including but not limited to life insurance policy carriers, annuity product providers, algorithm providers, agent supplied data and other data suppliers (“Outside Sources”), may provide information and data that may be integrated into, or accessed through, the System for use (“Outside Information”). Proformex is not responsible for the accuracy, completeness, or any conclusions reached as a result of Outside Information and shall not be liable for any errors or omissions in the Outside Information. EACH SUBSCRIBER AND USER HEREBY AGREES THAT IT IS RESPONSIBLE FOR VERIFYING THE ACCURACY OF ALL OUTSIDE INFORMATION. Each Subscriber and User further agrees and acknowledges that it will provide any information that may be required by Outside Sources to release data feed and/or policy information and projections to Proformex for its use. Each Subscriber and User further acknowledges that it may agree to authorize additional Outside Sources to release Outside Information to Proformex for its use. Should Subscriber’s and/or User’s relationship with an Outside Source, if any, terminate for any reason, then Proformex may delete or destroy any Outside Information related to existing policy information in the System.  Proformex Services are subject to data received from Outside Sources.

X. Data Security

In connection with Proformex’s data security policies, Proformex shall maintain commercially reasonable safeguards to protect the security and confidentiality of Subscribers’ and Users’ data.

XI. Warranties' Release

Proformex warrants that for so long as Subscriber and User shall have valid access to the System, the System will conform in all material respects to the purpose for which it was designed. Subscriber and User agree the foregoing does not constitute a guaranty that access to the System will remain uninterrupted and Proformex shall have no liability with respect to such temporary disruptions or interruptions.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL SERVICES, INCLUDING BUT NOT LIMITED TO THE SYSTEM AND OUTSIDE INFORMATION, ARE PROVIDED “AS IS”. PROFORMEX EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERRUPTION OF USE, AND FREEDOM FROM PROGRAM ERRORS WITH RESPECT TO THE SERVICES, SYSTEM, AND OUTSIDE INFORMATION.

Each Subscriber and User releases Proformex and its third party providers, and its and their employees, members, directors, and agents, from any liability in connection with the System and from any loss or expense resulting directly or indirectly therefrom.

XII. Limitation of Liability

In no event will any party be liable for economic, incidental, consequential, indirect, special, punitive or exemplary damages, whether claimed under contract, tort or any other legal theory. Any action against any party permitted under these Terms of Use and not brought within twelve (12) months after the later of (i) the accrual of; or (ii) Proformex’s or User’s knowledge of (or when such party should have reasonably become aware of) the cause of action shall be deemed barred. WITH THE EXCEPTION OF A BREACH OF SECTION V, THE MAXIMUM AGGREGATE LIABILITY OF PROFORMEX FOR ALL CLAIMS UNDER THESE TERMS OF USE, FOR ALL USERS AGGREGATED UNDER SUBSCRIBER’S SUBSCRIPTION AGREEMENT, SHALL BE ONE HUNDRED PERCENT (100%) OF THE FEES PAID BY SUBSCRIBER TO PROFORMEX HEREUNDER FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE BREACH.

XIII. Indemnification

Subject to Section XII above, each party agrees to defend, indemnify and hold harmless the other party and its affiliates, and each of their respective directors, officers, employees, and agents from and against all third-party claims, losses, liabilities, costs, expenses, demands, fines, and penalties (including without limitation reasonable attorneys’ fees and costs) arising from or relating to: (i) its negligence or misconduct, including that of its employees, agents, or independent contractors; or (ii) the breach of any of its obligations hereunder.

XIV. Assignment

Except as otherwise provided herein, User shall not assign, sell, convey, sublicense or otherwise transfer its rights or obligations hereunder, or any component thereof or any right or interest therein, either voluntarily or involuntarily, directly or indirectly, whether by operation of law or otherwise, without the express written consent of Proformex.

XV. Governing Law; Venue

These Terms of Use shall be governed by and construed under the laws of the State of Ohio without regard to any conflicts of laws principles. Any claims or disputes regarding these Terms of Use shall be exclusively heard in Cuyahoga County, Ohio Common Pleas Court or in the U.S. District Court, Northern District of Ohio, and the parties hereto consent to the exclusive personal jurisdiction of venue in such court. The parties waive any defense based upon forum non conveniens, lack of jurisdiction and they hereby waive trial by jury.

XVI. Miscellaneous

Headings used in these Terms of Use are intended, and shall for all purposes be deemed to be, for convenience only and shall have no force or affect whatsoever in the interpretation of these Terms of Use. If any provision of these Terms of Use is held invalid or unenforceable in any respect, the parties agree that such term or provision will be deemed to be modified to the extent necessary to permit its enforcement to the maximum extent permitted by applicable law and the remainder of these Terms of Use and all other provisions hereof will not be affected thereby. The failure of either party to enforce at any time any of the provisions of these Terms of Use, or the failure to require at any time performance by the other party of any of the provisions of these Terms of Use, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each and every such provision thereafter. These Terms of Use may not be amended or modified except by written agreement, including by electronic agreement. The provisions of these Terms of Use shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors, and permitted assigns. These Terms of Use, and the Subscriber Agreement signed by Proformex and Subscriber, constitutes the entire agreement between the parties with respect to the subject matter hereof.