MARKETSMITH SUBSCRIPTION AND LICENSE AGREEMENT
IMPORTANT - READ CAREFULLY: IN ORDER TO COMPLETE THE REGISTRATION PROCESS FOR THE MARKETSMITH INTERACTIVE INVESTMENT RESEARCH SERVICE (TOGETHER WITH THE TOOLS, DATA, INFORMATION AND OTHER CONTENT DISPLAYED OR ACCESSIBLE THEREIN, THE “SERVICE”) PROVIDED BY MARKETSMITH, INCORPORATED (“MARKETSMITH”), YOU MUST CLICK THE “I AGREE” BUTTON BELOW. IF YOU CLICK THE “I AGREE” BUTTON BELOW AND COMPLETE THE REGISTRATION PROCESS, YOU MAY DOWNLOAD AND USE THE PROPRIETARY SOFTWARE PROGRAM OF MARKETSMITH THAT IS AVAILABLE FOR DOWNLOADING IN CONNECTION WITH REGISTERING FOR THE SERVICE (THE “SOFTWARE”) AND BEGIN TO ACCESS THE SERVICE. BY CLICKING THE “I ACCEPT THE TERMS” BUTTON AND THE “SUBMIT” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE FOLLOWING TERMS THAT DEFINE AND LIMIT THE SCOPE OF YOUR PERMITTED USE OF THE SOFTWARE AND THE SERVICE AND CONTAIN TERMS AND CONDITIONS RELATED THERETO (THIS "AGREEMENT"). IF YOU DO NOT AGREE TO THE FOLLOWING TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” BUTTON, IN WHICH CASE THE REGISTRATION PROCESS WILL BE TERMINATED AND YOU WILL NOT BE PERMITTED TO DOWNLOAD THE SOFTWARE OR ACCESS THE SERVICE.
1. Subscription Period: As part of the registration process for the Service, you will specify a particular initial subscription period for the Service (or, if you are accepting a special trial subscription offer, the applicable subscription period automatically will be specified for you in accordance with the offer you are accepting) and you may elect to register for a trial subscription. The subscription period you elect when you register or that is specified in a trial subscription offer that you are accepting (the “Initial Subscription Term”) will determine your billing period. Unless you elect to start with a trial subscription, the term of your subscription (the “Subscription Period”) will automatically renew at the end of the Initial Subscription Term and each renewal term thereafter and will continue until MarketSmith or you terminate the subscription by providing notice of termination to the other, which MarketSmith and you are free to do at any time (to be effective, a notice of termination from you must either be by e-mail to firstname.lastname@example.org or by U.S. mail to MarketSmith, Incorporated, 12655 Beatrice Street, Los Angeles, CA 90066, Attn: MarketSmith Customer Service; provided that (i), unless you have a trial subscription, you will be entitled to a pro-rated refund of any fee you paid for the remaining Subscription Period beginning the first day of the calendar month following the month in which the termination occurs and calculated using the monthly subscription rate for the period your subscription is in effect and through the end of the month in which termination occurs, regardless of the duration of your Subscription Period and the corresponding subscription fee you paid; and (ii) if you paid for your fee with a credit card or bank (debit) card, any refund will be made through a credit to your credit or /bank (debit) card. MarketSmith reserves the right to discontinue or modify the Service in any manner in its sole discretion at any time upon notice to you. [In the event that MarketSmith is unable to process your payment(s), we reserve the right to terminate your access without prior notice.] If you downloaded a mobile application to access and subscribe to the Service, the subscription and cancelation terms of this agreement are superseded by those set forth by the Mobile Participants as described in Section 2f of this Agreement.
2. Access to Services and Software License:
a) During the Subscription Period, you will have the right to access the Service and a limited, non-transferable, non-exclusive license to use the Software in conjunction with your use of the Service on a single, stand alone, computer, in each case, for your personal and non-commercial use and not for the benefit of any third party.
b) You may download or print a single copy of any portion of the information or other content that is available through the Service for your personal and non-commercial use, provided you do not remove any trademark, copyright or other notice contained in such information or other content. No other use of such information or other content is permitted and any distribution of any such information or other content in any media or in any form is strictly prohibited. Without limiting the generality of the foregoing, you have no right to, and you agree that you shall not, (i) display, transmit, republish, “frame”, exhibit or otherwise distribute or make available to any other person information or other content that is available through the Service, including any of the foregoing in which any of such information or content is transmitted or accessible through any computer network or any Internet, Intranet or Extranet site, (ii) reproduce or incorporate any of such information or other content in any database, compilation, archive or other record, (iii) create any derivative works that incorporate any such information or other content, or (iv) reverse engineer, decompile, disassemble, sub-license, sell or transfer any part of the Software. You may not permit or provide access to the Service to any other person. Additional users of the Service may be added upon MarketSmith's prior written approval, subject to payment of additional fees.
c) You agree not to physically or electronically transfer the Software to any CPU or server beyond the specific CPU for which the Software is licensed, except for disaster recovery purposes. You agree not to reproduce in any form whatsoever any part of the Software supplied hereunder without the prior written approval of MarketSmith. You agree not to sublicense, loan, transmit, distribute or otherwise make available any part of the Software to any other person.
d) Neither the right to access the Services, nor the license granted herein to the Software, may be assigned or otherwise transferred to any third party without the prior written approval of MarketSmith. You acknowledge that no title to the intellectual property in the Services or the Software is transferred to you. MarketSmith reserves all rights not expressly granted hereunder. You agree that you will not attempt or enable any other person to attempt to reverse engineer, reverse compile, modify, adapt, translate or disassemble the Software, in whole or in part.
e) You acknowledge and agree that the Software is subject to export control laws and regulations. You shall not download or otherwise export or re-export the Software (or any part thereof) any underlying information or technology except in full compliance with all United States and other applicable export control laws and regulations. Without limiting the generality of the foregoing, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan or Syria or (ii) to anyone on the U.S. Treasury department's list of specially designated nationals or the U.S. Commerce Department's table of denial orders. You represent and warrant to MarketSmith that you are not located in, under control of, or a national or resident of any such country or on any such list.
f) You understand and agree that various entities unaffiliated with us make up the "mobile ecosystem" that enables you to access, visit and/or use the Service via your computer, mobile or other device, including without limitation equipment, hardware and software manufacturers and providers, telephone, mobile, wireless, and Internet network providers and carriers, and sellers or providers of Content for use with the Service (collectively, the "Mobile Participants"). We do not represent, warrant or guarantee that all portions of the Service, or the Service as a whole, can be accessed via all mobile or other devices, or via all carriers and service plans or is available in all geographic locations. IF YOU HAVE DOWNLOADED A MOBILE APPLICATION TO ACCESS AND SUBSCRIBE TO THE SERVICE, THESE MOBILE PARTICIPANTS MAY REQUIRE THAT YOU AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES. YOUR COMPLIANCE WITH ANY SUCH ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES IS SOLELY YOUR RESPONSIBILITY AND WILL HAVE NO EFFECT ON YOUR CONTINUING OBLIGATION TO COMPLY WITH THE AGREEMENT WHEN USING THE SERVICE. WE AND OUR INDEMNITEES SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE ACTS OR OMISSIONS OF SUCH MOBILE PARTICIPANTS.
3. Confidentiality: The information or other content that is available through the Service (other than information that is in the public domain that is included therein) and the Software are the confidential information of MarketSmith and embody valuable trade secrets of MarketSmith. You will not, directly or indirectly, disclose information regarding the Services or the Software, including the name of the Software tool, the features or benefits of the Software, screenshots or any other related content or information, to any third party in any media or in any manner, and will hold all such information in confidence, subject to any disclosure required by law, court order, or by any government or regulatory authority. You shall not make any public announcement, press release, or communication concerning this Agreement without the prior express written consent of MarketSmith.
4. Intellectual Property Rights: The information and other content that are available through the Service (other than information that is in the public domain that is included therein) and the Software is protected by U.S. copyright law and international treaties and by applicable trade secret law and all such information and other content, including all copyrights, service marks and other intellectual property rights relating to any of the foregoing, are the sole and exclusive property of MarketSmith, and its affiliated companies, licensors and suppliers. All rights not specifically and expressly granted to you in this Agreement are hereby reserved by MarketSmith. MarketSmith actively protects its intellectual property rights to the fullest extent permitted by law.
5. Password Protection: You agree to take all reasonable steps to protect the Service from unauthorized access or use through your account or password. You will be asked to choose a password that will enable you to access the Service. You agree that you will be the sole user of the Service under this Agreement and you agree to comply with the procedures specified by MarketSmith from time to time regarding obtaining and updating your password. You agree that MarketSmith may cancel or suspend your password if MarketSmith suspects that you have misused your password in any way, and the reissuance or reactivation of your password may be subject to MarketSmith's standard charges. You agree that you will use your best efforts to prevent any third party from obtaining your password, and you will inform MarketSmith immediately of any actual or potential unauthorized access to your password or to the Service.
6. Prohibited Uses: If you wish to link to the Service from a website you operate, you may link only to the MarketSmith Incorporated home page and not to any other page or subdomain of this website. You may not frame or utilize framing techniques that involve any trademark, logo, copyrighted material or other proprietary information (including images, text, page layout, or form) of any portion of the MarketSmith Incorporated website without the express written consent of MarketSmith. In addition, you agree not to (i) use any device, software or routine to interfere or attempt to interfere with the proper working of Service, (ii) take any action that imposes an unreasonable or disproportionately large load on the MarketSmith infrastructure, (iii) use any data mining, robot, spider, crawler, cancelbots, Trojan horse, or any data gathering or extraction method or manual process in connection with your use of the Service, including one that may damage, detrimentally interfere with or intercept any system, data or personal information; (iv) transmit viruses or other harmful code; or (v) create liability for MarketSmith or cause MarketSmith to lose the services of its ISPs or other suppliers.
a) You may post messages and materials regarding investment related topics on MarketSmith Blogs, Forums, Shared Screens and Shared Lists (referred to herein as the “MarketSmith Community”), including copyrighted material owned by MarketSmith, if you are current paid subscriber or under a trial subscription to the Service. MarketSmith reserves the right to remove any posted messages or materials that MarketSmith believes may be infringing its or third party’s intellectual property rights or rights of publicity or privacy or that otherwise are objectionable in MarketSmith’s sole discretion, including but not limited to use of copyrighted material or excessive self promotion. MarketSmith will not monitor or review all messages or confirm the usefulness, completeness or accuracy of posted information, does not endorse in any way any posted information and bears no responsibility for the content of any posted messages. MarketSmith recommends that subscribers not make investment decisions based on information posted and is not responsible for any trading or investment decisions based on such information. The U.S. Securities and Exchange Commission recognizes the growing possibility of Cyberfraud. Please refer to www.sec.gov/investor/pubs/cyberfraud.htm for further information, or to the SEC's main website at http://www.sec.gov or the National Association of Securities Dealers, Inc. at nasd.com.
b) You are solely responsible for the content of your messages, and you agree to indemnify and hold harmless MarketSmith and all of its affiliates and agents with respect to any claim based upon your posting of one or more messages in the MarketSmith Community. Any personal information you post in the MarketSmith Community becomes public information. You should exercise caution when deciding to disclose any personal information. MarketSmith and related companies are not responsible for any events or damages arising from your disclosure of personal information in the MarketSmith.
c) By posting any messages or other material in the MarketSmith Community, you grant MarketSmith and our affiliated companies, agents and distributors an irrevocable, perpetual, worldwide, royalty-free, fully-paid, non-exclusive and transferable license, with the unrestricted right to grant sublicenses to any person, to use, reproduce, adapt, translate or otherwise modify, publish, display, transmit, distribute or otherwise exploit such messages or other material.
d) If you feel that a posted message is objectionable, you should notify MarketSmith immediately by e-mail at email@example.com. If MarketSmith agrees that the message is objectionable, MarketSmith will remove it within a reasonable time after confirming that it is objectionable.
8 Effect of Termination: Upon termination of the Subscription Period, you shall immediately remove and destroy all copies of the Software or any part thereof and shall cease all use of the Service. Upon MarketSmith's request, you will certify to MarketSmith that all complete and partial copies of the Software have been destroyed. If the Subscription Period is terminated, it shall be your responsibility to request a pro-rata refund pursuant to Section 1 of this Agreement or, if desired, to request a reactivation of your account based on the subscription pricing that is then available.
9. No Warranty:
a) THE SERVICES AND THE SOFTWARE ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SOFTWARE MAY CONTAIN DEFECTS, BUGS, INOPERABLE FEATURES, ERRORS OR INCOMPLETE CODE. You assume total responsibility and risk for your use of the Service and the Software. MarketSmith does not guarantee that the Service or the Software will be uninterrupted or error free; it is provided on an "as available" basis. MarketSmith and its affiliates do not warrant the accuracy, completeness or timeliness of the news and information available through the Service. You acknowledge that any reliance upon any such news, statements or other information shall be at your sole risk.
b) MarketSmith does not guarantee the accuracy of the information available through the Service and you agree not to rely on any information or other content available through the Service without making your own independent investigation and exercising you own business judgments. Neither MarketSmith nor any of its data or content providers shall be liable for any errors or delays in the information or other content available through the Service, or for any action taken in reliance thereon.
c) No offer on our part with respect to the sale or purchase of any securities is intended or implied, and nothing contained herein is to be construed as a recommendation to buy or sell any securities. It is possible that at this date or some subsequent date the officers, directors and/or shareholders of MarketSmith and its affiliates own securities, or buy or sell securities mentioned in the Service is publication or those not so mentioned. Results obtained from our Pattern Recognition tool are hypothetical and may vary with each use and over time. Past performance of a security does not guarantee future results or success.
10. Limitation of Liability: IN NO EVENT SHALL MARKETSMITH BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERUPTION OR LOSS OF INFORMATION OR DATA) ARISING OUT OF THE USE OR INABILITY TO ACCESS THE SERVICE OR USE THE SOFTWARE, EVEN IF MARKETSMITH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL MARKETSMITH AND ITS AFFILIATES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU BASED ON THE INFORMATION PRESENTED IN THE SERVICE. UNDER NO CIRCUMSTANCES SHALL MARKETSMITH AND ITS AFFILIATES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOST PROFITS OR LOST OPPORTUNITY, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF MARKETSMITH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MARKETSMITH LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF ALL FEES PAID BY YOU TO MARKETSMITH.
11. Indemnification: You agree to indemnify and hold MarketSmith, its parents, subsidiaries, affiliates, officers and employees harmless from and against any and all losses, damages, liabilities, obligations, costs and expenses (including attorneys’ fees) resulting or arising from any claim, action or proceeding brought by any third party in connection with or relating to your access to or use of the Service or the Software (or the use of the Service by another person using your password) in breach of this Agreement.
12. Anti-Money Laundering. You agree to co-operate with MarketSmith in providing any assurances or evidence of compliance with respect to any legislation, regulations or rules concerning anti-money laundering issues and you represent and warrant that you have not been investigated, charged, or convicted for violation of any anti-money laundering rules or regulations.
13. Subscriber's Representation. Subscriber is not and will not engage in the operation of any illegal business and will not use, or permit anyone else to use, the data obtained through the Service, or any part thereof, for any illegal purpose.
14. User Information: MarketSmith may store the information provided by you during the registration process for the Service, and provide aggregate statistical information about subscribers to potential advertisers and other third parties. MarketSmith may use the information provided by you to inform you about other publications, products and services. However, no one other than MarketSmith and its affiliates will receive your name, address, phone number, e-mail address, or other specific personal information, without your consent.
15. Severability: In the event any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
16. Governing Law: You agree that this Agreement and any dispute relating to it or the Software will be governed by and construed in accordance with the laws of the United States and the State of California without regard to conflicts of laws principles. You hereby submit to the exclusive jurisdiction of the federal and state courts of the State of California.
17. Amendments. MarketSmith may amend the terms of this Agreement at any time by posting amended temrs to the Legal Agreement page in the About section within the application; provided that such amended terms shall not take effect until expiration of the current subscription period. It is your responsibility to monitor whether any amendments to this Agreement have been posted by MarketSmith and you will be deemed to agree to such amendments effective upon the commencement of the next subscription period if you have not exercised your right to terminate the Agreement prior to such time.
18. Intellectual Property Notices. The Dow Jones IndexesSM (the “Indexes”) that are published in the Service are proprietary to and distributed by Dow Jones & Company, Inc. and have been licensed for use. You will neither (a) copy, download, store, reproduce or further transmit or distribute the Indexes for commercial purposes in any type of format or by any means, including but not limited to the Internet, Intranet or other type of network nor (b) use the Indexes as the basis of financial instruments or investment products (e.g., passively-managed funds) without a separate written agreement with Dow Jones for such purpose.