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IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION, AND WAIVER OF JURY TRIALS AND CLASS ACTIONS, GOVERNING DISPUTES ARISING FROM USE OF THE SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
The individual accepting these Terms on behalf of Customer represents and warrants to the Company that he or she (i) is at least 18 years of age, and (ii) has all requisite power and authority to enter into these Terms on behalf of Customer and to bind Customer to these Terms.
1. Use of the Website and Apps: Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Website and Apps as expressly permitted in these Terms. You shall not use or permit use of the Website or Apps for any illegal purpose or in any manner inconsistent with the provisions of these Terms.
2. Ownership: The Services contain materials that are proprietary to Company and are protected by copyright laws, trademarks, service marks, and other intellectual property laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained throughout the Services. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, any improvements, design contributions, or derivative works thereto, and any knowledge or processed related thereto, including rights in and to all applications and registrations relating to the Services shall at all times be and remain the sole and exclusive property of Company. The trademarks, logos, taglines and service marks displayed on or through the Services (collectively, the “Trademarks”) are registered and unregistered Trademarks of Company and others. The Trademarks may not be used by you in any manner without Company’s prior express written consent.
3. Limitations on Use of Information: The Services are for informational purposes only and should not be used or construed as an offer to sell, a solicitation of an offer to buy, or an endorsement, recommendation or sponsorship of any company or security by Company, its affiliates, officers, directors, employees or agents. Company does not provide investment or financial advice, but merely provides a platform for you to obtain Information. You acknowledge and agree that the use of the Services, and any decisions made in reliance upon the Services, are made at your own risk. Nothing contained within the Services is a recommendation that any particular security is suitable for you or any specific person. Neither we nor any of our Information Providers are providing you with advice on the nature, potential, value or suitability of any particular security or other matter. In the event any content accessed through the Services is deemed to be investment advice or recommendations in connection with a particular security, such information is impersonal and not tailored to your needs or the needs of any specific person. All data provided is believed to come from reliable sources, but such data may not be reliable or complete. You are solely responsible for determining what investment strategy is appropriate for you.
4. Use Restrictions:
4.1 By using the Services, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
a. Is illegal, or violates any federal, state, or local law or regulation;
b. Advocates illegal activity or discusses illegal activities with the intent to commit them;
c. Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
d. Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
e. Interferes with any other party’s use and enjoyment of the Services;
f. Attempts to impersonate another person or entity;
g. Is commercial in a way that violates these Terms, including but not limited to, using the Services for spam, surveys, contests, pyramid schemes, or other advertising materials;
h. Falsely states, misrepresents, or conceals your affiliation with another person or entity;
i. Accesses or uses the account of another user without permission;
j. Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
k. Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Services, or the servers or networks connected to the Services;
l. “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
m. Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
n. Decompiles, reverse engineers, disassembles or otherwise attempts to derive source code from the Services, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without consent;
o. Removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of, the Services;
p. Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Services, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
q. Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercializes any materials or content on the Services;
r. Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms or with the prior written consent of Company; or
s. Attempts to do any of the foregoing.
4.2 In addition, you shall not, and shall not permit others to, do the following with respect to the Services:
a. Use the Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms;
b. License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Services available for access by third parties except as otherwise expressly provided in these Terms; or
c. Access or use the Services for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services or allow access by a direct competitor of Company.
4.3 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Services for violations of these Terms. However, we have the right to do so for the purpose of operating and improving the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
6. Customer Obligations and Updates and Communications:
6.1 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited herein, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company of any such actual or threatened activity.
6.2 We may revise these Terms or any additional terms and conditions which are relevant to a particular Service from time-to- time to reflect changes in the law or to the Services. We will post the revised terms on our Website with a “last updated” date at the top of the Terms. PLEASE REVIEW THE WEBSITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
6.3 You agree to receive electronically all communications, agreements, and notices that we provide in connection with any Services (“Communications”), including by e- mail, text, in-app notifications, or by posting them on the Website or through any Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing and you agree to keep your account contact information current.
7. Subscription Services:
7.1 Purpose and Use of Information. By signing up for Subscription Services, you will be granted access to certain information (“Information”) through the Website and/or Apps, which is provided by third party information providers (“Information Providers”). You are authorized to receive and use the Information solely in accordance with this Agreement. Any other use of the Information, including, but not limited to, retransmission or reprocessing, in whole or in part, is prohibited and you agree not to transmit, divulge, or publish any part of the Information to any other person or entity.
7.2 Enterprise Customers. In some circumstances, Company may enter into a separate written agreement for Subscription Services with certain enterprise customers (“Enterprise Agreement”). If you enter into an Enterprise Agreement with Company, in the event of any conflict between these Terms and the terms of the Enterprise Agreement, the terms of the Enterprise Agreement will control.\
7.3 Representation of Status. When signing up for the Subscription Services, you represent and warrant that you: i) are an individual and you do not (A) act as a broker or dealer in the purchase or sale of negotiable financial instruments for third parties or registered or qualify in any capacity under any U.S. federal or state or Canadian or provincial securities or commodities trading law, rule or regulation, or the rules or regulations of any securities or commodities exchange, market or association; nor (B) engage as an "investment advisor" or "investment banker" as defined in the Investment Advisors Act of 1940 of the United States (whether or not registered or qualified under that Act); and that you are not employed by a bank or other organization exempt from registration under federal, state or provincial securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt; ii) shall use the Information solely in connection with your own individual, personal investment activities and not in connection with any trade or business activities; iii) are over eighteen (18) years of age; and iv) are a party to this Agreement in your own capacity and not on behalf of a firm, corporation, partnership, trust or association. If you do not meet all of these requirements, you must contact us to sign up because in some cases, you may be required to sign additional third party agreements in order to use the Services for commercial purposes.
7.4 Service and System Control. Except as otherwise expressly provided in these Terms, as between the parties: (a) Company has and will retain sole control over the operation, provision, maintenance and management of the Services, including the performance of service maintenance, upgrades, corrections and repairs; and (b) Customer has sole responsibility for all access to and use of the Services by any means controlled by Customer, including any: (i) results obtained from any use of the Services and (ii) conclusions, decisions or actions based on such use. Customer shall acquire, install, operate and maintain at Customer’s expense all communications lines, equipment, software, services and related technology necessary to receive the Services.
7.5 Changes. Company reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company's services to its customers, (ii) the competitive strength of or market for Company's services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.
7.6 Suspension or Termination of Services. Company may suspend, terminate or otherwise deny Customer's access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Customer has failed to comply with, any material term of these Terms; (ii) Customer has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms; (iii) Customer is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services or (iv) the term of the Subscription Services expires or is terminated. This Section does not limit any of Company's other rights or remedies, whether at law, in equity or under these Terms.
8. License and Customer Restrictions.
8.1 License. Subject to and conditioned on Customer’s payment of the Fees (as applicable when Customer signs up for Subscription Services) and compliance and performance in accordance with all other terms and conditions of these Terms, Company hereby grants Customer a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to access and display the Subscription Services for Customer’s own personal, non-commercial use. All rights in the Subscription Services not expressly granted hereunder are reserved to Company.
8.2 Reservation of Rights. Nothing in these Terms grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Subscription Services, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Subscription Services are and will remain with Company and, as applicable, third party suppliers.
8.3 Authorization Limitations and Restrictions. Nothing in these Terms shall obligate Company to continue providing access to the Subscription Services beyond the date when Company ceases providing the Subscription Services to subscribers generally. Customer shall not, and shall not permit any other person to, access or use the Subscription Services except as expressly permitted by these Terms. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms expressly permits: (a) copy, modify or create derivative works or improvements of the Subscription Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Subscription Services to any person, including on or in connection with the internet or any time- sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Subscription Services, in whole or in part; (d) bypass or breach any security device or protection used by the Subscription Services or access or use the Subscription Services other than by Customer; (e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Subscription Services or Company's provision of services to any third party, in whole or in part; (f) remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Subscription Services or any copy thereof; (g) access or use the Subscription Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law; (h) access or use the Subscription Services for purposes of competitive analysis of the Subscription Services, the development, provision or use of a competing software service or product or any other purpose that is intended for the Company's detriment or commercial disadvantage; or (i) otherwise access or use the Subscription Services beyond the scope of the authorization granted herein.
9. Fees; Payment Terms.
9.1 Fees. Customer shall pay Company the monthly fee associated with the type of account Customer chooses ("Fees"). In some instances, Company may grant Customer free use of the Subscription Services for a period of time designated by Company (“Trial Period”). You may be required to provide credit card information upon signing up for a Trial Period, and in such case, you understand that, upon expiration of the Trial Period, your credit card will be automatically charged the Fee associated with the Subscription Services you chose upon signing up, unless you cancel prior to the end of the Trial Period. If you continue after the Trial Period, you will continue to pay the Fees as set forth in this Section.
9.2 Taxes. All Fees and other amounts payable by Customer are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company's income..
9.3 Payment. Fees will be charged to the credit card used by Customer when signing up for the Subscription Services on a recurring monthly basis, or, for annual subscriptions, on an annual basis, in the amount specified by Company at the time Customer signed up for the Subscription Services. Customer will not receive any advance notice of this payment. The prices, features, and options of the Subscription Services depend on the Subscription Plan selected. Company does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
9.4 Recurring Charges. When you purchase Subscription Services, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. You must promptly notify us of any change in your invoicing address and must update your account with any changes related to your payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION SERVICE, CUSTOMER AUTHORIZES COMPANY OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION SERVICE CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES. The Authorization continues through the applicable term and any renewal term (as defined herein) until Customer cancels as set forth in these Terms.
9.5 Late Payment. If Customer’s automatic recurring payment is declined or unable to be processed for any reason, Company may in its sole discretion permanently restrict Customer’s ability to use a certain payment method if that payment method fails. If Customer fails to make any payment when due then, commencing five (5) business days after Customer’s receipt of a default notice, in addition to all other remedies that may be available: (a) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Customer shall reimburse Company for all costs reasonably incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and (c) if such failure continues for ten (10) business days following written notice thereof, Company may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension. All amounts payable to Company shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
10. Intellectual Property Rights: All right, title and interest in and to the Services, including all intellectual property rights therein, are and will remain with Company and the respective rights holders of any third party suppliers. Customer has no right, license or authorization with respect to any of the Services except as expressly set forth herein. All other rights in and to the Services are expressly reserved by Company and the respective third party suppliers.
11. Term and Termination.
11.1 Term. The term of any Subscription Services will be either month to month, automatically renewing on a monthly basis, or annual, automatically renewing on an annual basis, depending on which plan you subscribe to.
11.2 Termination. In addition to any other express termination right set forth elsewhere in these Terms: (a) Company may terminate any agreement for Subscription Services, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Company's delivery of written notice thereof; (b) either party may terminate an agreement for Subscription Services, effective on written notice to the other party, if the other party materially breaches these Terms and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; (c) either party may terminate an agreement for Subscription Services, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; (d) Either party may terminate a month to month agreement for Subscription Services for any reason or no reason upon not less than thirty (30) days prior written notice to the other party; and (e) Either party may terminate an annual agreement for Subscription Services for any reason or no reason upon giving written notice to the other party at least thirty (30) days prior to the end of the then-current annual term.
11.3 Effect of Expiration or Termination. Upon any expiration or termination of an agreement for Subscription Services, except as expressly otherwise provided in these Terms (a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate; (b) Customer shall immediately cease all use of any Subscription Services; and (c) Company may disable all Customer access to the Subscription Services.
11.4 Survival. The provisions of Section 2 (Ownership), Section 10 (Intellectual Property Rights), Section 11.3 (Effect of Expiration or Termination); Section 11.4 (Survival), Section 12 (Disclaimer of Warranties), Section 13 (Indemnification), Section 14 (Limitations on Liability), and Section 16 (Miscellaneous), will survive termination of these Terms.
12. Disclaimer of Warranties.. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED "AS IS" AND COMPANY, ITS INFORMATION PROVIDERS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY, INFORMATION PROVIDERS AND SUPPLIERS MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY INFORMATION OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, COMPLETE, TIMELY, FREE OF HARMFUL CODE OR ERROR FREE. NEITHER COMPANY NOR ITS INFORMATION PROVIDERS OR SUPPLIERS SHALL BE RESPONSIBLE FOR INVESTMENT DECISIONS, DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT PAST PERFORMANCE DOES NOT GUARANTEE FUTURE PERFORMANCE. NEITHER COMPANY NOR ITS INFORMATION PROVIDERS OR SUPPLIES ARE AN "EXPERT" UNDER THE SECURITIES ACT OF 1933 AND MAKE NO WARRANTY THAT THE SERVICES COMPLY WITH THE REQUIREMENTS OF THE NASD OR ANY SIMILAR ORGANIZATION OR WITH THE SECURITIES LAWS OF ANY JURISDICTION.
13. Indemnification: You will defend, indemnify, and hold us, our Information Providers, suppliers, and all of our respective affiliates, officers, directors, employees, suppliers, consultants, and agents (“Indemnified Parties”) harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to, as applicable: (a) your access to and use of the Services, including but not limited to any Information provided by the Services; (b) your violation of these Terms; or (c) infringement of any intellectual property or other right of any person or entity by you. The Indemnified Parties retain the exclusive right to settle, compromise and pay, without your prior consent, any and all claims or causes of action which are brought against us. The Indemnified Parties reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which any Indemnified Party is named as a defendant and/or for which you have indemnity obligations without such Indemnified Party’s prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
14. Limitations of Liability.
14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL ANY OF THE INDEMNIFIED PARTIES BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (d) YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES AND/OR ACTIONS TAKEN BY YOU AS A RESULT OF SUCH INFORMATION OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2 CAP ON MONETARY LIABILITY. INDEMNIFIED PARTIES’ TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SERVICES (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO US FOR THE SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
15. Force Majeure.
15.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms for any failure or delay in fulfilling or performing any term of these Terms (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Terms, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate these Terms if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
15.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.1 Export Control Laws. You acknowledge that the Services and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that Company makes available (collectively “Excluded Data”), is subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”). You represent and warrant that you will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by Export Laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business. You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the Website.
16.2 Third Party Terms. We may provide, or third parties may provide, links to other third-party web sites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. COMPANY IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE WEBSITE. Your correspondence or business dealings with third parties found on or through the Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such links to third-party web sites or resources on the Website, and you understand that you are bound by the terms of such third parties. Company’s inclusion of links to such websites does not imply any endorsement of the material on such websites or any association with their operators.
16.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.5 Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
16.6 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Company's prior written consent, which consent Company shall not unreasonably withhold or delay. No delegation or other transfer will relieve Customer of any of its obligations or performance under these Terms. Any purported assignment, delegation or transfer in violation of this Section is void. These Terms are binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
16.7 No Third-party Beneficiaries. These Terms for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
16.8 Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.9 Severability. If any provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.10 Mandatory Arbitration, Waiver of Class Actions Applicable to Customers. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
16.10.1 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at firstname.lastname@example.org provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). Except for intellectual property, you and Company agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
16.10.2 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided below) subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms, the parties' relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Arbitration shall be initiated and take place in Orange County, California, United States, and you and Company agree to submit to the personal jurisdiction of any federal court or state court in Orange County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
16.10.3 No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial, but by agreeing to this mandatory arbitration section, they give up those rights. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
16.10.3 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes. 16.10.4 Exception: Litigation of Intellectual Property. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
16.11 Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to these Terms or the licenses granted hereunder shall be instituted exclusively in the federal and state courts located in Orange County, California and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
16.12 Attorneys' Fees. In the event that any arbitration, action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
16.13 Contacting Us. If you have any questions about the Website or Terms, pricing, complaints, or other inquiries, please contact us at email@example.com. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.