Terms of Services
LAST UPDATE: October 5, 2018. Plannista, Inc.
1. Acceptance of Terms of Service
3. Your Account
In consideration of your use of the Service, you represent, warrant and covenant that (i) you are not barred under the laws of the United States or any other applicable jurisdiction from receiving, accessing or using good or services of any type or kind that are the same as or similar to the Service, (ii) your access to or use of the Service has not, does not, and will not violate any applicable law or regulation, (iii) your purchase of, access to or use of the Service, or your being bound by the TOS, shall not conflict with any of your organizational documents (such as certificate of incorporation or bylaws) or conflict with any other agreement or arrangement that you are party to, and (iv) you access the Service through one or more humans. Accounts created or operated, in whole or in part, by "bots" or other automated methods are not permitted. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form ("Account Data"); and (b) maintain and immediately update your Account Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Plannista has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Plannista has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof), and you will not be refunded any Fees (defined below) already paid as a result of any such suspension or termination. You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Plannista of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit or ‘log out’ from your account at the end of each session. Plannista cannot and will not be liable for any loss or damage arising from your failure to comply with the TOS, including, without limitation, this Section.
4. Statement of Work and Additional Terms
Plannista may provide certain goods or services to you (by way of example only, training sessions or certain customization work) pursuant to a separate Statement of Work or other document (in each case, an “SOW”). For the avoidance of doubt, any SOW, and any goods or services to be provided pursuant thereto, shall be governed by the TOS as well as any additional terms or conditions set forth in such SOW (which, for the avoidance of doubt, shall be deemed incorporated in their entirety into your agreement with Plannista for the Service). In the event of a conflict between any term or condition in a SOW and the TOS, the SOW will govern. In addition, Plannista may include certain additional terms and conditions (“Additional Terms”) for the Service or for certain offers in connection with the Service (for example, a portion of this website setting forth the terms and conditions for a free trial of the Service). Any Additional Terms shall be deemed incorporated in their entirety into the TOS.
5. Supplemental Terms For Plannista Free Trial
The TOS shall apply to your participation in any free trial provided by Plannista (“Free Trial,” and such terms and conditions, the “Free Trial Terms”). Only new Plannista customers are eligible to participate in a Free Trial. The Free Trial starts when you create a user account (“Free Trial Start Date”) and ends upon the later of (i) [thirty (30)] days from the Free Trial Start Date, or (ii) the date agreed upon by Plannista in its sole discretion. During the Free Trial, certain services and features may not be available. At any time during the Free Trial, you may convert your Free Trial account into a paid account subscription by sending us an email at firstname.lastname@example.org. Your continued use of the Services after upgrading to a paid account is subject to your ongoing compliance with the TOS (or other applicable agreement between Plannista and yourself) and the Free Trial Terms and Conditions set forth in this section shall no longer apply. When the Free Trial ends, you shall no longer have access to the Services and the Free Trial Terms shall no longer apply. During the [thirty (30)] day period following the conclusion of the Free Trial, you may (i) export your Data from the Services by contacting us at email@example.com; or (ii) may contact Plannista customer support to upgrade to a paid account subscription.
6. Billing and Fees
Unless cancelled, your Service subscription will be automatically renewed at the end of your subscription period. We will bill the subscription fee plus any applicable tax to you. Your membership will automatically renew for successive subscriptions, without prior notice to you, unless and until you cancel your membership, or we terminate it. You must cancel your membership before it renews in order to avoid billing of the next period's subscription fees to your payment method. Except and to the extent required by applicable law , all fees and charges are nonrefundable, and there are no refunds or credits for partially used periods, or where you have elected to downgrade service levels or otherwise remove any paid component or feature. If you elect to upgrade your service level or otherwise add any paid component or feature, we will pro-rate the amount due based on the number of days remaining in your billing cycle; provided, however, that any such proration shall be based on your service level or paid components or features in existence immediately prior to your election to upgrade or add paid components or features. If you change your service level (downgrade it), you may cause the loss of Content or features for your account. Plannista does not accept any liability for such loss. You may cancel your subscription to the Service at any time, and cancellation will be effective at the end of the current billing cycle. Except and to the extent required by applicable law, WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS OR ANY FEATURE OF COMPONENT THAT YOU HAVE PAID FOR BUT NOT USED. In connection with your purchase and/or use of the Service you may be subject to taxes, including, without limitation, sales and use taxes, by any authority which has jurisdiction to impose such taxes. You agree that the obligation and payment of any such taxes shall be your sole and absolute responsibility, and you agree, that unless otherwise required by applicable law, to indemnify Plannista pursuant to the section below entitled “Indemnity” to the extent that Plannista incurs any obligations or other liabilities in connection with such taxes. In the event that Licensee makes any payment via wire transfer, all associated outgoing and incoming bank fees (including, without limitation, Licensee’s bank fees and Plannista’s bank fees) (collectively, the “Bank Fees”) shall be Licensee’s responsibility and shall be recoverable by Plannista from Licensee. Licensee may include such Bank Fees at the time of the payment to Plannista. However, if such Bank Fees are not included then Plannista shall be entitled to full reimbursement of such Bank Fees from Licensee within 60 days of any applicable wire transfer initiated by Licensee. Fee Increases We may change the fees and charges in effect or add new fees and charges from time to time. EXCEPT AS SET FORTH HEREIN, YOUR PAYMENT OBLIGATIONS ARE NON-CANCELLABLE AND FEES PAID ARE NON-REFUNDABLE. No option in your current subscription for the Service can be lowered or reduced, in quantity, level or otherwise, during the current term of your subscription for the Service. Notwithstanding any other provision contained herein (but subject to any applicable law), at the time of any renewal of your subscription you agree that we may increase your recurring fees up to the greater of (i) the price we have publicly made available for a subscription to the Service of the same duration as your current subscription, or (ii) five percent (5%). If you do not accept the increase or addition to the existing fees, you may elect to terminate your account during the then current billing period and you shall not be liable for such fee increase after the applicable billing period; however, any later renewal of service will be subject to the increased fee structure. If your credit or debit card reaches its expiration date, your continued use of the Service constitutes your authorization for us to continue billing you, and you remain responsible for any uncollected amounts.
“Fees” shall mean the fees and other amounts payable by you to Plannista in connection with receiving, accessing and using the Service, including without limitation any additional goods and services provided by Plannista to you, whether pursuant to an SOW or otherwise. Unless expressly agreed to otherwise, any applicable Fees shall be set forth in your Order Form as well as any SOW you enter into with Plannista. Any set Fees due in accordance with your subscription for the Service, along with any other Fees due in connection with any other goods or services provided in connection with setting up the Service for you, shall be due in by or before the first day of the term of your subscription for the Service. Any other non-set Fees (by way of example only, training sessions you purchase from Plannista in the middle of the term of your subscription) shall be invoiced on a monthly basis and such invoices must be fully paid within (5) business days of receipt. If any Fees are not received by Plannista by the applicable due date, then without limiting Plannista’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any amount owing by you pursuant to its Services Agreement is thirty (30) or more days overdue, Plannista may (a) accelerate the entirety of your unpaid Fee obligations under such agreement as well as any other agreement between you and Plannista so that all such obligations become immediately due and payable, and (b) in its sole discretion, and with no liability whatsoever for doing so, suspend the provision of the Service, or any other services, benefits, products, content, or data that it may be obligated to provide pursuant to your subscription or the TOS (including without limitation pursuant to any Additional Terms or SOW) any/or any other agreement or arrangement that might be in effect between you and Plannista until such time as all such overdue amounts, along with any applicable late fees or interest, have been paid in full. Your Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever, or any credit card processing fees, payment card processing fees or any other fees, costs or expenses reasonably incurred by Plannista in connection with any payment by You, and You are responsible for any and all such amounts. You acknowledge and agree that you shall be liable for any amounts incurred by Plannista in enforcing any of Plannista’s rights to any payments due hereunder including but not limited to reasonable attorney’s fees and any amounts charged by a collections agency or service.
7. Travel & Expenses
Plannista is hereby authorized to incur, with prior notice to you, reasonable travel expenses when appropriate in performing your instructions. You agree to reimburse these. Reasonable travel expenses vary to reflect the different standards applied to business travel in various parts of the world. For illustrative purposes, they include, economy (or 'coach') class flights, accommodation and incidental costs within a hotel, meals while traveling on your behalf, rail travel and taxis and car-hire costs as appropriate. Where appropriate to the circumstances, Plannista reserves the right to vary the class of travel to meet a reasonable business need.
“Content” means any and all information, data, code, video, images, text, documents or other materials of any type that is uploaded, posted, emailed, transmitted, submitted or otherwise made available to or through the Service by you or any of your Individual Users, regardless of whether it is publicly posted or privately transmitted. All Content is the sole responsibility of the person from whom such Content originated. This means that you, and not Plannista, are entirely responsible for all Content that you upload, post, email, transmit, submit or otherwise make available via the Service. Plannista does not control the Content posted via the Service and does not have access to such Content (except account-related information or unless authorized by you). As such, Plannista does not and cannot guarantee or endorse the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent, objectionable or illegal in your jurisdiction. Under no circumstances will Plannista be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content uploaded, posted, emailed, transmitted, submitted or otherwise made available via the Service. You acknowledge that Plannista does not pre-screen Content, but that Plannista and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move or remove any Content that is available via the Service. Without limiting the foregoing, Plannista and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable or illegal as determined in Plannista’s sole discretion. In no event shall Plannista or its designees have any liability or obligation to you in connection with exercising any rights contained in this section. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Plannista or submitted to Plannista. You acknowledge, consent and agree that Plannista may access, preserve and disclose your account information and Content if required to do so by any applicable law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any applicable legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Plannista, its users and the public. If we receive a subpoena which requests disclosure of information contained in your account you agree that we may disclose any such requested information contained in the account regardless of whether such information is deemed to be owned or held in the name of (i) the Business User, or (ii) the name of Individual Users. For the sake of clarity, (i) if the subpoena is issued in the name of the Business User, we may disclose information regarding both the Business User and the Individual User(s), and (ii) if the subpoena is issued in the name of Individual User(s) we may disclose information regarding both the Business User and the Individual Users(s). You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited. You will retain all right, title and interest in and to your Content and Plannista shall not claim ownership of your Content; provided, however, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Plannista the following worldwide, royalty-free and non-exclusive license(s): the perpetual, irrevocable and fully sublicensable license to collect, use, copy, store, transmit, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.
You agree to not use the Service to:
upload, post, email, transmit, submit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, under any applicable laws;
harm minors in any way;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
disguise the origin of any Content transmitted through the Service;
upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any applicable law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
upload, post, email, transmit or otherwise make available any Content that infringes any rights or any other party, including, without limitation, patent, trademark, trade secret, copyright or other proprietary rights;
engage in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not-Call Implementation Act, the Telemarketing Sales Rule, 47 C.F.R. §64.1200 et seq., or other state or local laws relating to calling or texting (collectively, the “Calling Laws”);
upload, post, email, transmit or otherwise make available any material that contains 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;
act in a manner that negatively affects other users' ability to use the Service;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
intentionally or unintentionally violate any applicable local, state, national or international law;
provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
reassign the license between uniquely identified individuals frequently so as to effectively enable the sharing of a single Software license. Subscriptions to Software are intended for the use of a uniquely identified individuals. However, usage as described above would be a violation of Plannista's Terms of Service
You agree to comply, and require that your users comply, with all applicable laws, whether federal, state, local or international, relating to the privacy of communication for all parties to a conversation, including, when required, advising all participants in a recorded audio and/or video session that the audio and/or video session is being recorded.
Except and to the extent required by applicable law, You (specifically including the Business User and Individual User(s)) agree to indemnify and hold Plannista and its parent, subsidiaries, affiliates, officers, directors, stockholders, agents, attorneys, employees, partners, licensors and other representatives harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of, or in connection with, (i) your Content, (ii) your use or access of the Service, (iii) your connection to the Service, (iv) your violation of the TOS, any SOW, or any applicable law or regulation, (v) your violation of any rights (including without limitation any intellectual property, other proprietary or privacy rights) of any third party, and (vi) any taxes arising in connection with your purchase or use of the Service in any jurisdiction, domestic or otherwise, including, without limitation, sales and use tax.
12. No resale of Service
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service unless you otherwise have an agreement with us which specifically grants you such right(s).
13. General practices regarding use and storage
You acknowledge that Plannista may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content will be retained by the Service, the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Plannista's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that Plannista has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by the Service. You acknowledge that Plannista reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Plannista reserves the right to modify these general practices and limits from time to time.
14. Modifications to Service
Plannista reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Plannista shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You agree to be identified as a customer of Plannista and you agree that Plannista may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in Plannista's marketing, advertising, and promotional materials and website. You hereby grant Plannista a fully-paid, irrevocable, perpetual, world-wide license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Plannista pursuant to this marketing Section.
16. Termination and cancellation
Each Party may terminate your subscription to the Service or any SOW if any such other Party has breached any material provision of the TOS or any SOW then in effect and does not cure such breach within ten (10) business days after receiving notice of such breach from the non-breaching Party. For the avoidance of doubt, any failure by you to timely pay any Fees due to Plannista shall be deemed a material breach of the TOS. Your subscription for the Service, your right to access and use the Service, and any SOW then in effect shall automatically terminate without notice if you: (i) voluntarily institute insolvency, receivership or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business (any of the foregoing, an “Insolvency Event”).
18. Plannista's Proprietary Rights
19. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW: (i) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, (ii) THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND (iii) PLANNISTA AND ITS PARENT,SUBSIDIARIES, AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, ATTORNEYS, PARTNERS, LICENSORS, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “WRITE PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
THE PLANNISTA PARTIES MAKE NO WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OR RESULTS OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ERRORS OR DEFECTS, IF ANY, IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL AND/OR DATA. YOUR USE OF THE SERVICE IS SUBJECT TO ADDITIONAL DISCLAIMERS AND CAVEAS THAT MAY APPEAR THROUGHOUT THE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLANNISTA PARTIES OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THE PLANNISTA PARTIES ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE SERVICE. WHILE PLANNISTA STRIVES TO KEEP THE INFORMATION ON THE SERVICE ACCURATE, COMPLETE, AND UP-TO-DATE, THE PLANNISTA PARTIES CANNOT GUARANTEE, AND WILL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION ON THE SERVICE.
20. Limitation of Liability
EXCEPT AND TO THE EXTENT REQUIRED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT PLANNISTA AND ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, PARTNERS, LICENSORS AND OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Plannista HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PLANNISTA’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO PLANNISTA FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (ii) $100.
21. Exclusions and Limitations
SOME JURISDICTIONS (INCLUDING, WITHOUT LIMITATION, NEW JERSEY), MAY NOT ALLOW FOR (I) INDEMNIFICATION, AND (II) THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY (INCLUDING, WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES). ACCORDINGLY, SOME OF THE PROVISIONS CONTAINED HEREIN (INCLUDING INDEMNIFICATION UNDER SECTION 6 AND THE LIMITATIONS CONTAINED IN OF SECTIONS 15 AND 16) MAY NOT APPLY TO YOU. IF YOU ARE UNSURE WHETHER SUCH EXCLUSIONS AND LIMITATIONS APPLY PLANNISTA ENCOURAGES YOU TO SEEK LEGAL COUNSEL IN YOUR JURISDICTION.
22. Trademark Information
The Plannista and Plannista logo trademarks and service marks and other Plannista logos and product and service names are trademarks of Plannista and cannot be used by you without Plannista’s prior written consent in each instance.
23. Copyright Policy
It is Plannista’s policy to respect the copyright and intellectual property rights of others. Plannista may remove any content that you have uploaded into the Service that appears to infringe the copyright or other intellectual property rights of others. In addition, Plannista may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, Plannista complies with the Digital Millennium Copyright Act (“DMCA”). If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide Plannista’s Copyright Agent the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
A description of the copyrighted work that you claim has been infringed.
A description of where the material that you claim is infringing is located on the Service.
Your address, telephone number, and e-mail address.
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
A statement by you, made under penalty of perjury (e.g., notarized affidavit), that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Please direct inquiries regarding infringement issues by email to firstname.lastname@example.org
24. Pre-Dispute, Mandatory Binding Arbitration, and Class Action Waiver
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, the Plannista Parties, and/or any involved third party relating to your account, Your Use, your relationship with the Plannista Parties, or these TOS. This includes any and all claims that relate in any way to your use of the products and services, your attempted use of the products and services, and any act or omission by the Plannista Parties or any third party related to your use or attempted use of the products and services. You, Plannista, the other Plannista Parties, or any involved third party may pursue a Claim. Plannista agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against Plannista. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Plannista both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. Plannista will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against the Plannista Parties, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description by U.S. Mail to Plannista, Inc., 345 West 145th Street, 5A5, New York, New York, 10031; Attn: General Counsel. You agree to negotiate with Plannista in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after Plannista’s receipt of your written dispute, you agree to the dispute resolution provisions below.
Commencement of Arbitration. You and Plannista agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.
Arbitration Location. For your convenience, the arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and Plannista agree.
Sponsoring Organization, Rules and the Arbitrator. You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these TOS and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you, Plannista or the other Plannista Parties.
Arbitration Fees. Plannista shall pay for all filing, administrative, and arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Although Plannista may have a right to an award of attorneys’ fees and expenses under some laws if it prevails, Plannista agrees that it will not seek such an award, unless your Claims are determined by the arbitrator to be frivolous. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA.
Enforceability. This provision survives termination of your account or relationship with Plannista, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Miscellaneous. Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. This provision is the entire arbitration agreement between you and Plannista and shall not be modified except in writing by Plannista.
Amendments. Plannista reserves the right to amend this arbitration provision at any time. Your use or attempted use use of any Plannista website, purchase of a Plannista product or service, or use or attempted use of a Plannista product or service, is affirmation of your consent to such amendment. Should any amendment to this arbitration provision be material, Plannista will provide you notice and an opportunity to opt-out. Your continued use of any Plannista website, purchase of a Plannista product or service, or use or attempted use of a Plannista product or service, is affirmation of your consent to such material amendment. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF PURCHASE, USE, OR ATTEMPTED USE OF A PLANNISTA PRODUCT OR SERVICE ( WHICHEVER COMES FIRST) BY WRITING TO PLANNISTA, INC. 345 WEST 145TH STREET, 5A5, NEW YORK, NEW YORK, 10031; ATTN: LEGAL COUNSEL. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING WHAT PARTS OF ANY PLANNISTA PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN SUCH 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE OF PLANNISTA PRODUCT OR SERVICE. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
25. Exclusive Venue for Other Controversies
You agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the state and federal courts located within the County New York, State of New York, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
26. General Information
Entire Agreement. The TOS constitute the entire agreement between you and Plannista and govern your use of the Service, superseding any prior agreements between you and Plannista with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Plannista services, affiliate services, third-party content or third-party software.
Waiver and Severability of Terms. The failure of Plannista to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid under applicable law, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions to the greatest extent possible as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect. No Right of Survivorship and Non-Transferability. You agree that your Plannista account is non-transferable and any rights to your Plannista ID or contents within your account terminate upon cessation of your legal existence or death, as applicable. Upon receipt of a copy of a certificate of dissolution or death certificate, as applicable, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.
Compliance. Plannista understands and holds itself to the standard set out under our Business Conduct Principles.
27. Contact Us
If you have any questions about this TOS, please contact us by email at email@example.com or by email at
345 West 145th Street, 5A5
New York, NY, 10031