Last Updated: June 25, 2017
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING THE CHECKBOX OR BY SIMPLY ACCESSING OR USING THE SITE, WEB SERVICES, DATA OR THIRD PARTY DATA, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, WEB SERVICES, DATA OR THIRD PARTY DATA. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event; “Customer”, “You” and “Your” will refer and apply to that company or other legal entity.
1. “Web Services” consist of a set of software programs, interfaces, and web pages running on computers hosted at Provider sites or at third-party hosting facilities accessible via the Internet as described in this Agreement and the Site.
2. “Data” means the prices and other market data that is (i) owned by Provider and (ii) obtained by Provider from exchanges and other sources delivered to Customer via the Web Services and as described in this Agreement and on the Site.
3. “Third Party Data” means the prices and other data that is (i) not owned by Provider and (ii) obtained by Provider from exchanges and other sources delivered to Customer via the Web Services and as described in this Agreement and on the Site.
4. “Data Owner” means a legal entity that holds ownership rights to some of the Data or Third Party Data (defined below) and is the original licensing source of such portion of the Data or Third Party Data when such portion of the Data or Third Party Data is not in the public domain. In cases of Third Party Data, Provider has secured redistribution agreements with the Data Owner.
5. “Distinct Software Applications” means software applications that automate substantially different business products, services, processes or functions of Customer. Provider reserves the right, in its sole discretion, to make a reasonable determination as to whether software applications that use the Web Services or the Data or Third Party Data constitute Distinct Software Applications.
6. “Data Exchange Format” means an electronic version of the Data or Third Party Data used for sharing the Data or Third Party Data between software applications, including but not limited to any application programming interface (API), any database access (e.g., ODBC, etc.), any network transmission format (e.g., EDI, SOAP, RSS, XML, etc.) and any data file format (e.g., XLS, CSV, etc.). Provider reserves the right, in its sole discretion, to determine if a particular electronic version of the Data or Third Party Data constitutes a Data Exchange Format.
7. “Subscription Plan” means all the subscription plans selected by the Customer in connection with the purchase of the use of the Web Services, Data and Third Party Data. The Provider posts the available subscription plans and the specific use of the Web Services, Data and Third Party Data provided by each subscription plan on the Site, as they may be updated by the Provider from time to time.
8. “Support Plan” means the Support Plan selected by the Customer in connection with the purchase of the use of the Web Services, Data, and Third Party Data, if offered. The Provider posts any available support plans and specific service levels provided by each support plan on the Site, as they may be updated by the Provider from time to time.
Provider reserves the right to modify, discontinue or terminate the Site, Web Services, Data and Third Party Data or to modify this Agreement, at any time and without prior notice. If Provider modifies this Agreement, Provider will post the modification on the Site or provide you with notice of the modification. By continuing to access or use the Site, Web Services, Data and Third Party Data after Provider has posted a modification on the Site or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Site, Web Services, Data and Third Party Data.
Legal residents of Arizona, Iowa, Louisiana, Montana, Nevada, and Washington (the "Excluded States"), or any states where this exclusion might apply, are ineligible for any prizes that might be offered by Data Simply.
REGISTRATION DATA; ACCOUNT SECURITY
In consideration of your use of the Service, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Service ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to the Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
In order to access certain sections of the Site, Web Services, Data and Third Party Data, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and You will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Provider reserves the right to suspend or terminate Your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding Your password. You agree not to disclose Your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify Provider of any unauthorized use of Your Account.
Upon registration to use the Site, Web Services, Data and Third Party Data, the Provider may provide a restricted use, free trial of the Site, Web Services, Data and Third Party Data for a period of times (the "Free Trial"). THE RESTRICTIONS OF THE FREE TRIAL ARE DETERMINED SOLELY AT THE DISCRETION OF THE PROVIDER AND MAY BE MODIFIED AT ANY TIME. THE FREE TRIAL IS PROVIDED ONCE AND ONLY UPON YOUR FIRST REGISTRATION AT THE SITE FOR A SINGLE SEVEN (7) DAY PERIOD. THE FREE TRIAL IS NOT PROVIDED UPON SUBSEQUENT REGISTRATION BY CUSTOMER OR CUSTOMER’S AGENTS OR AFFILIATES.
CANCELLATIONS AND REFUNDS
You may cancel your subscription at any time. Once paid, there are no refunds. There are no prorations. If you cancel before the end of your paid period, the amount is not prorated or returned for the time you would have had remaining. If you cancel, your subscription will end at the end of the period for which you have already paid.
Upon completion of the Free Trial, access to certain portions of the Site, Web Services, Data and Third Party Data will terminate until and unless the Customer selects and agrees to purchase a Subscription Plan and a Support Plan for continued use of the Site, Web Services, Data and Third Party Data. Upon selection and purchase, access to the Site, Web Services, Data and Third Party Data will be provided in accordance with the terms of the specific Subscription Plan selected by the Customer via the Site.
ACCESS TO THE SERVICE
Data Simply grants you a limited, revocable, nonexclusive license to access and use the Service and the Content for your own personal use. This license does not include any collection, aggregation, copying, duplication, display or derivative use of the Service nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by Data Simply in writing. A limited exception is provided to general purpose internet search engines and non-commercial public archives that use such tools to gather information for the sole purpose of displaying hyperlinks to the Service. In order to collect, aggregate, copy, duplicate, display or make derivative use of the Service or any Content made available via the Service for other purposes (including commercial purposes) not stated herein, you must first obtain a written license from Data Simply.
The Service is protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Service is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the Service or the collective work, and/or copying or reproducing the Content or any portion thereof to any other server or location for non-personal use is prohibited without the express written consent of Data Simply.
DATA AND SITE CONTENT
The Site and Content available through the Service may contain links to other websites which are completely independent of Data Simply. Data Simply makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such site. Your linking to any other websites is at your own risk.
Data Simply, its affiliates and partners, shall have no liability for investment or other decisions based upon any Content and/or decisions based upon a contrarian view of any Data or Content. The Data and Content is to be used for informational and entertainment purposes only and we cannot provide investment advice for any individual or financial professional. We advise that you contact your personal broker before making any investment related to any information received from the Site. Data Simply, its affiliates and partners specifically disclaim any and all liability or loss arising out of any action taken in reliance on Content, including but not limited to market value or other loss on the sale or purchase of any company, property, product, service, security, instrument, or any other matter. You agree that the Data and Content is provided as is, may have interruptions, and may be interpreted to lead to false signals. Your use of this Data and Content is at your own risk.
USER CONTENT POSTED ON THE SERVICE
LICENSES AND DATA
Web Services License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access and use the Web Services solely for its business purposes. This Agreement governs Customer’s access to and use of the Web Services and the Site. Customer acknowledges and agrees that but for this Agreement, Customer would have no rights or access to the Web Services and the Site.
Rights in Data License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access and use the Data and Third Party Data available via the Web Services solely for its business purposes. In addition, any Third Party Data may be subject to restrictions of use and require additional license agreements with the Data Owner. While Provider may, in its sole discretion, offer administrative assistance to Customer in obtaining such additional licenses, Customer is solely responsible for obtaining all required license agreements with each Data Owner pursuant to Customer’s use of such Third Party Data. If Customer does not obtain a required license agreement for any portion of the Third Party Data and as such is in violation of the Data Owner’s licensing requirements, Provider may terminate access to the unlicensed portion of Third Party Data until Customer obtains such license agreements with the Data Owner.
Proprietary Rights. Subject to the limited rights expressly granted hereunder, Customer acknowledges that the Data, Third Party Data, Web Services, Site, and/or any developments to the Data, Third Party Data, Web Services, and Site that result from services provided under the Support Plan (“Developments”) provided to Customer hereunder are proprietary in nature and owned exclusively by Provider and/or the Data Owners. The Data, Third Party Data, the Web Services, as well as the Developments are to be used exclusively as described herein.
Restrictions on the Web Services.
● Customer may use the Web Services solely with any software application owned or licensed by Customer.
● Customer may not use, adapt, modify, redistribute, sublicense, sell or otherwise make available any portion of the Web Services for use by software applications not owned or licensed by Customer.
● Neither party will attempt to access, tamper with, or use non-public areas of the other party’s website, computer systems, or the technical delivery systems of the other party’s providers.
● Neither party will attempt to probe, scan, or test the vulnerability of any of the other party’s systems or networks or breach any of the other party’s security or authentication measures.
Restrictions on the Data and Third Party Data.
● Customer may use the Data and Third Party Data solely with any software application owned or licensed by Customer.
● Customer will not use, redistribute, sublicense, sell or otherwise make available any portion of the Data or Third Party Data in any Data Exchange Format for use in software applications not owned or licensed by Customer.
● Customer may not display or make the Data or Third Party Data available in any Data Exchange Format to non-employee users, including but not limited to, vendors, contractors, partners and the general public (e.g., public websites, partner and vendor extranets, EDI applications, etc.).
● Customer may cache and store the Data and Third Party Data for use within each Distinct Software Application provided such use is in compliance with restrictions imposed by the Data Owners. The Data or Third Party Data may not be shared between Distinct Software Applications or made available in any Data Exchange Format for the purpose of sharing between Distinct Software Applications.
Enforcement. Except as otherwise provided herein, Customer is responsible for all of Customer’s activities occurring through its use of the Web Services.
Telecommunications and Internet Services. Customer acknowledges that the use of the Web Services by Customer is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Web Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
TERM AND TERMINATION
Term. A Subscription Plan Agreement will commence when You click “I accept” or “I agree” or a similar term and shall continue for any Free Trial. Thereafter, this Agreement shall renew on the date of purchase (the “Start Date”) of the Subscription Plan, if any, that you select to purchase to use the Web Services, Data or Third Party Data. This Agreement shall continue from the Start Date through the initial term specified by the Subscription Plan (the “Initial Term”). At the end of the Initial Term, this Agreement will automatically renew on the day following the last day of the Initial Term (“First Renewal Date”) and will automatically renew thereafter on the first day of each renewal period (“Renewal Period”) as specified by the Subscription Plan, unless either party provides to the other written or electronic notice of termination in accordance with the terms of this Agreement. The Free Trial, Initial Term specified by the Start Date and the First Renewal Date of the Subscription Plan, and each subsequent renewal term specified by the First Renewal Date and the Renewal Period of the Subscription Plan are collectively the “Term”.
Right to Terminate. Either party may terminate this Agreement at any time during the Free Trial. After the Start Date, either Party may terminate this Agreement for any reason prior to the beginning of each renewal term as indicated by the First Renewal Date and the Renewal Period of the Subscription Plan by delivering written or electronic notice of termination at least thirty (30) days prior to the beginning of each renewal term. Notwithstanding the foregoing, either party may terminate this Agreement at any time in the event that the other party breaches any material term of this Agreement and fails to remedy such breach within ten (10) business days after receipt of a written notice of any such breach, or if such breach cannot be remedied within that period of time, fails to demonstrate to the satisfaction of the non-breaching party that it is taking steps reasonably necessary to remedy the breach.
Inability to Provide Data and Third Party Data. If Provider ever loses the license, right or ability to provide any portion of the Data or Third Party Data, or such license or right is ever interrupted or otherwise impaired, then Provider agrees to notify Customer of such fact if permitted to do so and Customer may immediately terminate use of any portion of the Web Services and Provider will refund the prorated Subscription Fees (defined below) associated with the unused portion of the Web Services.
Survival. The provisions of the Definitions Section and Sections that by their nature should reasonably survive, and any amendments to the provisions of the aforementioned will survive any termination or expiration of this Agreement.
Subscription Fees. Customer will pay to Provider fees in connection with the Subscription Plan and the Support Plan selected by Customer to use the Web Services, Data, and Third Party Data (“Subscription Fees”). Thereafter, Subscription Fees for Customer’s use of the Web Services, Data and Third Party Data shall be (i) as described and/or as selected by You via the Site in connection with purchase to use the Web Services, Data and Third Party Data or (ii) negotiated between You and Provider by creating an addendum to this Agreement. Unless otherwise negotiated between You and Provider in an addendum to this agreement, all Subscription Fees are due at the beginning of each subscription term as specified in the Subscription Plan and Provider will charge the method of payment You provide via the Site in the amount of the Subscription Fees in connection with the Subscription Plan that You select. Subscription Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Provider’s net income.
Web Services Overage Fee Adjustment. If limits are specified, Provider will notify Customer in writing should Customer exceed its average limits associated with a Web Service over a two (2) week period. Upon notification, Customer will have two (2) weeks to reduce its volume to comply with its current Web Service limitation. Should Customer continue to exceed its Web service limit, Provider will upgrade Customer’s current Web Service level to accommodate the higher levels and adjust the Subscription Fee accordingly. Should Customer decline to accept the adjustment, Provider can terminate the agreement in accordance with the Terms & Termination.
No Prorated Refund of Subscription Fees. Once paid, there are no refunds. There are no prorations. If you cancel before the end of your paid period, the amount is not prorated or returned for the time you would have had remaining. If you cancel, your subscription will end at the end of your period for which you have already paid.
Service Level. Provider will use its reasonable business efforts to ensure that the Web Services operate according to the service levels specified in the Support Plan, except for reasonable service interruptions due to Excusable Delays (defined below) or regularly scheduled maintenance. Provider further agrees that it will use its reasonable business efforts to prevent and/or rapidly respond to and remedy any interruption to the operation of the Web Services caused by third parties from unlicensed use, viruses, malicious code, denial of service attacks, or other external tampering with the Web Services. HOWEVER, UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, PROVIDER MAKES NO OTHER WARRANTY REGARDING THE OPERATION OF THE WEB SERVICES.
Support Services. Provider will provide support to Customer related to the Web Services in accordance with the provisions of the Support Plan Customer selects upon purchase to use the Web Services for the duration of this Agreement. Support services may include the following: (i) assistance with the proper use of the Web Services, and (ii) programming to correct any demonstrated errors in the Web Services necessary to enable the Web Services to operate in accordance with the service levels specified in the Support Plan.
Customer Responsibilities. Customer will promptly report any errors in the operation of the Web Services to Provider and will not take any actions that would increase the severity of the error. Customer will use the Web Services solely as described herein. In the event that Customer violates any of the requirements of this Section, Provider will have no responsibility to provide Support.
Enhancements and Modifications. Provider will provide to Customer enhancements or modifications (“Updates”) to the Web Services as they become available. Customer acknowledges that additional Subscription Fees may be charged for the use of Updates, and that Provider has sole discretion in identifying which Updates require the payment of additional Subscription Fees. Provider acknowledges that Customer has sole discretion in deciding to use Updates and is only responsible for additional Subscription Fees for those Updates that Customer decides to use. Should Customer decide to use Updates that require additional Subscription Fees, then new Subscription Fees for Customer’s use of the Web Services shall be (i) as described and/or as selected by You via the Site in connection with purchase to use the Web Services, Data and Third Party Data or (ii) negotiated between You and Provider by creating an addendum to this Agreement. Provider agrees and acknowledges that Customer has spent time and resources to integrate the Web Services into Customer’s computer systems. As a result, Provider agrees to notify Customer when possible prior to introducing any Update that will affect or impair the operation, functionality, or business purpose of the Web Services. Should any Update remove or alter any function of the Web Services or any portion the Data or Third Party Data that was available prior to the Update, such that it degrades the functioning of Customer’s computer systems, Customer may immediately terminate this Agreement.
WARRANTIES, INDEMNITY, AND LIMITATION OF LIABILITY
Indemnification by Provider. Provider agrees to defend (or settle), indemnify and hold Customer, its employees, directors and officers harmless from and against any and all liabilities, losses, damages, or expenses (including court costs and reasonable attorneys fees) in connection with any third party claim that the Web Services, Data or Third Party Data infringe or misappropriate any Intellectual Property Rights (defined below) of any third party, only to the extent the liabilities, damages, or expenses result from use of the Web Services that is within the scope of this Agreement, provided that Customer does not make any admission of Provider guilt without Provider’s prior written approval and provided that Customer gives Provider (i) prompt written notification of the claim or action, (ii) sole control and authority over the defense or settlement thereof, and (iii) all reasonably available information, assistance and authority to settle and/or defend any such claim or action. As used in this Section, “Intellectual Property Rights” specifically includes, without limitation, any patent, copyright, trade mark, trade name, trade dress, trade secret, service mark, service name, title, slogan, proprietary process, or any other intellectual property right.
Indemnification by Customer. Customer agrees to defend (or settle), indemnify and hold Provider, its employees, directors and officers harmless from and against any and all liabilities, losses, damages, or expenses (including court costs and reasonable attorneys fees) in connection with any third party claim that the Customer’s use of the Web Services or Data in violation of this Agreement infringes or misappropriates any Intellectual Property Rights of any third party, provided that Provider does not make any admission of Customer guilt without Customer’s prior written approval and provided that Provider gives Customer (i) prompt written notification of the claim or action, (ii) sole control and authority over the defense or settlement thereof, and (iii) all reasonably available information, assistance and authority to settle and/or defend any such claim or action.
Warranty Disclaimers. OTHER THAN SPECIFICALLY SET FORTH HEREIN, (i) THE WEB SERVICES, SITE, DATA, AND THIRD PARTY DATA ARE DELIVERED TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION PROVIDED, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, OR PERFORMANCE, (ii) PROVIDER MAKES NO WARRANTY THAT THE SITE, DATA, OR THIRD PARTY DATA WILL MEET CUSTOMER'S SPECIFIC OBJECTIVES OR NEEDS; (iii) PROVIDER MAKES NO WARRANTY THAT THE WEB SERVICES, SITE, DATA, OR THIRD PARTY DATA WILL BE FREE FROM ERRORS OR BUGS; and (iv) PROVIDER MAKES NO WARRANTY THAT THERE WILL BE UNINTERRUPTED OPERATION OF THE WEB SERVICES, SITE, DATA, AND THIRD PARTY DATA. CUSTOMER ACKNOWLEDGES THAT (i) ANY DATA DOWNLOADED THROUGH THE USE OF THE WEB SERVICES AND SITE IS DONE AT ITS OWN DISCRETION AND RISK, AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF APPLICATIONS OR DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH DATA and (ii) THE FOREGOING EXCLUSIONS AND DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROVIDER OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
The Company, its affiliates, and partners are not responsible or liable in any manner for any Content posted on the Service, whether posted or caused by Users, by Data Simply, by third parties or by any of the equipment or programming associated with or utilized in the Service. Although we provide rules for User conduct and postings, we do not control and are not responsible for what Users post, transmit or share on the Service and are not responsible for any inaccurate, offensive, inappropriate, obscene, unlawful or otherwise objectionable Content you may encounter on the Service. The Company, its affiliates and partners are not responsible for the conduct, whether online or offline, of any User.
The Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User Content. Under no circumstances will the Company be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone's use of the Service or any posted on or through the Service or transmitted to or by Users, or any interactions between Users, whether online or offline.
The Service may provide information from or links to certain brokerage companies or other third party providers for your convenience only. Data Simply is not a registered broker-dealer and does not endorse or recommend the services of any brokerage company or other third party providers. The brokerage company or third party provider you select (and not Data Simply) is solely responsible for its services to you. Data Simply does not give financial advice and is not a registered financial advisor or brokerage company.
The Company reserves the right to change any and all Content, software and other items used or contained in the Service at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by the Company.
Accuracy and Timeliness of Data and Third Party Data. PROVIDER MAKES NO WARRANTY REGARDING THE DATA, THIRD PARTY DATA OR ANY OTHER INFORMATION PURCHASED OR OBTAINED THROUGH PROVIDER’S SITE AND/OR THE WEB SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY DATA, THIRD PARTY DATA OR OTHER INFORMATION OBTAINED THROUGH PROVIDER’S WEBSITE AND/OR THE WEB SERVICES. THE DATA WE USE MAY BE INTERRUPTED WHICH MAY AFFECT THE USER EXPERIENCE.
Limitation of Liability. UNLESS OTHERWISE PROVIDED HEREIN, IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO OR USE OF THE WEB SERVICES EXCEED $1000, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. PROVIDER WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY DAMAGES RESULTING FROM ANY INTERRUPTION OR DISRUPTION IN COMMUNICATIONS OR SERVICES, UNAVAILABILITY OR INOPERABILITY OF SERVICES, TECHNICAL MALFUNCTION, LOST DATA, OR LOST PROFITS, EVEN IF PROVIDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF OR COULD HAVE REASONABLY PREVENTED SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Excusable Delays. Any delay in performance of any provision of this Agreement caused by conditions beyond the reasonable control of either party will not constitute a breach of this Agreement, provided that the delaying party has taken reasonable measures to notify the affected party of the delay in writing and uses reasonable efforts to perform in accordance with this Agreement notwithstanding such conditions. The delayed party’s time for performance will be deemed extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a party’s reasonable control include, but are not limited to, natural disasters, acts of government, acts of terrorism, power failures, major network failures, fires, riots, and acts of war (collectively, “Excusable Delays”).
Compliance with Laws and Policies. The parties hereby agree to abide by and comply with all applicable local, state, national, and international laws and regulations (including applicable laws that pertain to the transmission of technical data, privacy, the encryption of software, the export of technology, the transmission of obscenity, or the permissible uses of intellectual property).
Use of Name and Logos. We have the right to list your company and individual name and logo on our site and our marketing materials unless you notify us not to do so, in writing.
Controlling Law. The parties agree the laws of the State of California, excluding conflict of laws provisions, will govern this Agreement and all matters arising out of or related to this Agreement. The parties submit to the jurisdiction of the courts of the State of California. The parties expressly agree to venue in the state and federal courts located in San Mateo, California and waive any objection based on personal jurisdiction.
Entire Agreement and Severability. This Agreement, including the Subscription Plan and Support Plan, as amended from time to time according to its terms, shall constitute the entire agreement between Customer and the Provider respecting the Site, the Web Services, the Support, the Data, and the Third Party Data described herein, and shall supersede all prior agreements, arrangements, representations or promises, whether oral or written, as to its subject matter. This Agreement may be amended only in a written agreement that is duly executed by authorized representatives of the parties.
Force Majeure. The Provider and their respective affiliates shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, fires, other catastrophes, power or telecommunications failure or any other cause beyond its reasonable control.
Waiver. No waiver by either party of any default by the other in the performance of any provisions of this Agreement shall operate as a waiver of any continuing or future default, whether of a like or different character.
Assignment. Neither party may assign this Agreement without prior written consent unless in connection with a merger or acquisition of either party.
Severability. If any provision of this Agreement (or any portion thereof) shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.
Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
Notice. The parties may give notice to each other via email, fax or certified mail. Notices sent to Provider should be directed to [email protected] Notices sent to Customer will be sent to Customer at the email address provided during registration to use the Web Services.