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THIS
WEB PAGE DOCUMENT ("AGREEMENT") IS A LEGAL DOCUMENT BETWEEN YOU ("USER")
AND INVESTING SYSTEMS INC. ("ISI").
THIS
AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY ACCESS THE
ISI WEB SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE
ISI WEB SITE.
BY
ACCESSING THE ISI WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND
THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
IF
YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT ACCESS THE ISI WEB SITE.
ISI
MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE.
YOU
SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE AGREEMENT.
WEB
SITE TERMS AND CONDITIONS OF USE:
This Web Site Terms and Conditions of Use Agreement ("Agreement") is made
as of the Effective Date by and between INVESTING SYSTEMS INC., a Florida
corporation, ("ISI") and you ("the User").
WITNESSETH
WHEREAS, ISI has developed and owns that certain ISI Web Site (as defined
hereinafter) for use and access by User through the Internet; and WHEREAS,
User desires to access the ISI Web Site and use the ISI Web Site in accordance
with the terms and provisions of this Agreement. NOW, THEREFORE, in consideration
of the mutual benefits of the covenants and restrictions herein contained,
User and ISI hereby agree as follows:
ARTICLE
I: RECITALS AND DEFINITIONS
Section
1.01 -- Recitals: The above recitals and identification of parties are
true and correct.
Section
1.02 -- Definitions: The following definitions shall apply: (1) Access:
The term "access" and variants thereof (including, without limitation,
"accessing" and "accessible") shall mean to store data in, retrieve data
from or otherwise approach or make use of (directly or indirectly) through
electronic means or otherwise. (2) ISI Marks: The term "ISI Marks" shall
mean trademarks, trade names, service marks and trade dresses of ISI,
including STOCKFILTER. (3) ISI System: The term "ISI System" shall mean
computer systems and communication equipment used for hosting the ISI
Web Site and providing User access to ISI Web Site, including ISI Technology
used, stored or transmitted through the ISI System. (4) ISI Technology:
The term "ISI Technology" shall mean any and all Technology developed
by or for ISI. (5) ISI Web Site: The term "ISI Web Site" shall mean that
certain Web Site developed by or for ISI based in whole or in part on
the Content and the Licensed Content which is integrated with and implemented
on the ISI System and accessible by User via the Internet, including information,
data, communication and text transmitted through the ISI Web Site and
used or stored on the ISI System. (6) Content: The term "Content" shall
mean ISI Technology incorporated into the ISI Web Site and ISI Technology
used, stored on or transmitted through the ISI System. (7) Effective Date:
The term "Effective Date" shall mean the date the User accesses the ISI
Web Site. (8) Internet: The term "Internet" shall mean that certain global
network of computers commonly referred to as the Internet. (9) Licensed
Content: The term "Licensed Content" shall mean third party information,
data, communications, text, graphics, images, visuals, video, audio, computer
software, coding, script and other materials incorporated in whole or
part into the ISI Web Site. (10) Link: The term "Link" shall mean that
certain text, icon or graphic in the ISI Web Site (visible or transparent)
that upon selection or search, links or associates ISI Web Site to an
off-screen or third party Web Site, document, text, image, sound or video.
(11) Materials: The term "Materials" shall mean the ISI Web Site and the
Content. (12) Policy Statement: The term "Policy Statement" shall mean
that certain written statement of policies (in printed or electronic form)
concerning access to the ISI Web Site as may be adopted and made available
by ISI and as modified by ISI from time-to-time. (13) Technology: The
term "Technology" shall mean (i) evaluation, technical, scientific, engineering,
marketing, financial and business reports, plans, studies, diagrams, or
flow charts; (ii) all forms and types of scientific, technical, economic,
business, or engineering information and data; and (iii) computer software,
source code, object code, executable code, software libraries, improvements,
documentation, databases, database designs, data dictionaries, data models,
fields, records, scripts, texts, interpreters, interfaces, interface designs,
trade dress, interface specifications, codes, classes, categories, screen
displays, sound recordings, visual works, graphic images, audio, sound
recordings, video, patterns, plans, compilations, program devices, formulas,
designs, prototypes, methodologies, techniques, ideas, solutions, concepts,
processes, procedures, programs, adaptations, derivative works, computers,
hardware, networks, products, machines, compositions of matter and articles
of manufacture, whether tangible or intangible, and whether stored, compiled,
or memorialized (without limitation) physically, electronically, graphically,
photographically, or in writing. (14) Web Site: The term "Web Site" shall
mean that certain multimedia interactive product that is a compilation
of data, information, computer software, graphics, audio, audiovisuals,
videos, components, and coding formatted for use on the Internet and commonly
referred to as a web site.
ARTICLE
II: SCOPE OF USE
Section
2.01 -- Access: ISI hereby grants User a non-exclusive and non-transferable
license to access the ISI Web Site solely for viewing and browsing the
information on the Web page screens in the ISI Web Site, subject to the
terms and provisions of this Agreement. Except as permitted under this
Agreement, User shall not access the ISI System.
Section
2.02 -- Products: The ISI Web Site does not constitute an offer. All products
and services are subject to availability. All product descriptions and
representations, including, without limitation, color, shade, and size
are subject to ISI final specifications for such products and must be
confirmed by User prior to any order, quote, or other reliance upon the
ISI Web Site.
Section
2.03 -- Policy Statement: User shall comply with the Policy Statement.
ISI may modify the Policy Statement from time to time at the exclusive
discretion of ISI.
ARTICLE
III: INTELLECTUAL PROPERTY
Section
3.01 -- Ownership and Title: Title to the Materials (excluding Licensed
Content), including ownership rights to patents, copyrights, trademarks
and trade secrets in connection therewith shall be the exclusive property
of ISI.
Section
3.02 -- Unauthorized Use: User shall not copy or download the Materials
without the prior written consent of ISI. User shall not modify, reverse
engineer, reproduce, display, publicly perform, distribute, or create
derivative works based on the Material, including (without limitation)
by framing, mirroring, or similar means, or use the Materials for public
or commercial purposes. User shall not use the Materials on any other
Web Site.
Section
3.03 -- Trademarks: ISI shall retain all rights, title and ownership interests
in the ISI Marks. Excepting the ISI Marks, all other product and company
references are trademarks, trade names, service marks, or trade dresses
of their respective owners (as applicable).
Section
3.04 -- No Contest: User acknowledges that the Materials are protected
under laws, including (without limitation) United States of America and
international copyright laws and treaties. User shall not contest or aid
in contesting the ownership or validity of the copyrights, trademarks,
service marks and trade secrets (as applicable) of ISI in connection with
the Materials.
Section
3.05 -- User Submissions: Any information posted or submitted by User
on the ISI Web Site shall be deemed non-confidential unless otherwise
deemed confidential by an agreement in writing and signed by authorized
representatives of ISI and User. ISI may use any User materials, information,
ideas, concepts, or techniques submitted by User on the ISI Web Site or
learned by ISI for any purpose (including, without limitation, the right
to display, reproduce, modify, transmit, disclose, and distribute any
such information).
ARTICLE
IV: WARRANTY AND INDEMNIFICATION
Section
4.01 -- Express Warranties: User hereby acknowledges and agrees that ISI
(including officers, employees, agents, directors and independent contractors
of ISI) has not made or granted to User any express warranties concerning
the ISI Web Site or ISI products. Use and performance of ISI products
and services referenced in the ISI Web Site (including, without limitation,
ISI certifications) are subject to ISI terms and conditions concerning
such products, services and certifications as made available by ISI. User
hereby acknowledges that the ISI Web Site does not constitute a grant
of an express warranty concerning ISI products and services, and User
waives any and all claims of warranty based on the ISI Web Site.
SECTION
4.02 -- WARRANTY LIMITATION: THE ISI WEB SITE IS PROVIDED ON AN "AS IS"
AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND. ISI, TO THE FULLEST
EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND USER HEREBY WAIVES ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY
AND WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ISI DOES NOT WARRANT
AND USER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE ISI WEB
SITE BY USER WILL BE UNINTERRUPTED OR ERROR FREE. ISI DOES NOT MAKE ANY
WARRANTY AND USER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS
OBTAINED FROM USE OF THE ISI WEB SITE OR AS TO THE ACCURACY, COMPLETENESS,
TIMELINESS OR RELIABILITY OF THE ISI WEB SITE. USER HEREBY ACKNOWLEDGES
AND AGREES THAT USE OF THE INTERNET AND ISI WEB SITE SHALL BE AT THE SOLE
AND EXCLUSIVE RISK OF USER AND SUBJECT TO THE RESTRICTIONS, TERMS AND
CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF
CONDUCT GOVERNING THE INTERNET AND THE ISI WEB SITE.
Section
4.03 -- Inaccuracies: User hereby acknowledges that the ISI Web Site may
contain errors, inaccuracies and omissions. User shall assume any and
all risk of loss, harm or damage associated with User access to and use
of the ISI Web Site.
SECTION
4.04 -- LIMITATION OF LIABILITY: ISI SHALL NOT BE LIABLE FOR ANY LOST
PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES UNDER
THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I)
USE, PERFORMANCE OR OPERATION OF THE ISI WEB SITE; (II) USE, PERFORMANCE
OR OPERATION OF THE INTERNET OR USE OF THE INTERNET BY USER; AND (III)
LOSS OF DATA), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR
IN TORT, INCLUDING NEGLIGENCE, REGARDLESS OF WHETHER ISI HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES
ARE REASONABLY FORESEEABLE.
SECTION
4.05 -- REMEDIES: THE SOLE REMEDY OF USER FOR ANY REASON AND FOR ANY CAUSE
OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT AND THE ISI WEB
SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT,
INCLUDING NEGLIGENCE, SHALL BE MODIFICATION OF THE ISI WEB SITE, AS DETERMINED
BY ISI.
Section
4.06 -- Indemnification: User shall release, defend, indemnify and hold
harmless ISI (including its officers, directors, employees, affiliates,
contractors and agents) against any expense, loss, cost, or liability
(including, without limitation, attorney fees and paralegal fees) arising
from any and all claims, demands, damages or actions resulting from or
related to (i) use of the ISI Web Site or the Internet by User (including,
without limitation, any claims for breach of warranty, loss of data, libel,
slander, invasion of privacy or false advertising); (ii) performance of
the ISI Web Site; (iii) User submissions to the ISI Web Site; (iv) User's
negligence or the acts (or any failure to act) of User; and (v) any breach
by User of the obligations of User under this Agreement. Restrictions.
The End-User may NOT sublicense, assign, or distribute copies of the Software
to others. The Software contains trade secrets. The End-User may NOT decompile,
reverse engineer, disassemble, or otherwise reduce the Software to a human
readable form. THE END-USER MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE,
LOAN, RESELL FOR PROFIT, DISTRIBUTE, OR OTHERWISE ASSIGN OR TRANSFER THE
SOFTWARE, OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PART
THEREOF. THIS APPLIES TO TRADING RECOMMENDATIONS ISSUED BY USING THE SOFTWARE.
Protection and Security. The End-User agrees to use its best efforts and
to take all reasonable steps to safeguard the Software to ensure that
no unauthorized person shall have access thereto and that no unauthorized
copy, publication, disclosure or distribution in whole or in part, in
any form, shall be made. The End-User acknowledges that the Software and
all supporting documentation is intellectual property of Investing Systems
Inc. The End-User acknowledges that the Software contains valuable confidential
information and trade secrets and that unauthorized use and/or copying
are harmful to Licensor. Termination. This License is effective until
terminated. This License will terminate immediately without notice from
Licensor if the End User fails to comply with any of its provisions. Upon
termination the End User must destroy the Software and all copies thereof,
and the End-User may terminate this License at any time by doing so. Limited
Warranty. Licensor warrants that, for thirty (30) days from the date of
initial use by the original End User, the Software shall operate substantially
in accordance with the published functional specifications current at
the time of shipment. If, during the warranty period, a defect appears,
End User shall notify the Software to Licensor and Licensor's only obligation
shall be, at Licensor's election, to replace the defective Software or
refund the purchase price. The End-User agrees that the foregoing constitutes
the End-User's sole and exclusive remedy for breach by Licensor under
any warranties made under this Agreement. This warranty does not cover
any Software that has been altered or changed in any way by anyone other
than Licensor. Licensor is not responsible for problems associated with
or caused by incompatible operating systems or equipment, or for problems
in the interaction of the Software with software not furnished by Licensor.
No oral or written information or advice given by Licensor or its dealers,
distributors, employees or agents shall in any way extend, modify or add
to the foregoing warranty. THE WARRANTY AND REMEDY PROVIDED ABOVE ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. THE END-USER ASSUMES ALL RISK AS TO THE SUITABILITY,
QUALITY, AND PERFORMANCE OF THE SOFTWARE. IN NO EVENT WILL LICENSOR, OR
ITS DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES, BE LIABLE TO THE END-USER
FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES
(INCLUDING DAMAGES FOR LOSS OF INVESTMENT PROFITS, INVESTMENT INTERRUPTION,
LOSS OF DATA OR INVESTMENT INFORMATION, AND THE LIKE) ARISING OUT OF THE
USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING WRITTEN MATERIALS,
EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LICENSOR'S LIABILITY TO THE END-USER (IF ANY) FOR ACTUAL DIRECT DAMAGES
FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL
BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE AMOUNT ORIGINALLY PAID
TO LICENSOR FOR THE LICENSE OF THE SOFTWARE. Enhancements. From time to
time Licensor may, in its sole discretion, advise the End-User of updates,
upgrades, enhancements or improvements to the Software and/or new releases
of the Software (collectively, "Enhancements"), and may license the End-User
to use such Enhancements upon payment of prices as may be established
by Licensor from time to time. All such Enhancements to the Software provided
to the End-User shall also be governed by the terms of this License. IN
ORDER FOR THE END-USER TO BE ASSURED THAT IT WILL BE ADVISED OF AND LICENSED
TO USE ANY ENHANCEMENTS TO THE SOFTWARE, THE END-USER MUST KEEP CURRENT
CONTACT INFORMATION AVAILABLE TO LICENSOR. INDEMNIFICATION You agree to
and will defend and indemnify Investing Systems Inc., and all of our information
providers, all parents, subsidiaries and affiliates or our information
providers, and all of the respective directors, officers, employees, representatives,
agents, proprietors, shareholders, members and partners, attorneys, predecessors,
successors, and assigns of Investing Systems Inc. or our information providers,
and hold them harmless from and against any and all claims, proceedings,
damages, injuries, liabilities, losses, costs, and expenses (including
reasonable attorneys' fees and expenses), relating to or arising from
your use of the Software or any information, products, services, documentation,
or quotes available on or through the Software, and any breach by you
of this Agreement or other improper act or omission on your part. In no
event will In no event will Investing Systems Inc. or any of its directors,
officers, employees, representatives, agents, suppliers, successors or
assigns be liable for any indirect, incidental, special, exemplary or
consequential damages (including but not limited to lost profits, trading
losses, lost data, business interruption, computer or communication systems
damage, damages that result from inconvenience, delay or loss of the use
of the Software, or any other pecuniary or intangible loss) arising out
of or in any way connected with use or inability to use the Software,
the products or services available through the Companies, or the information
contained on or available through the Software, whether arising in tort
(including negligence), contract, strict liability or any other legal
theory, even if Investing Systems Inc. or any of its suppliers, has been
advised of the possibility of such damages or losses. You agree that the
cumulative liability of Investing Systems Inc., its suppliers and licensors,
arising out of or in any way connected with your use or attempted use
of the Service will in no event exceed the purchase amount of the Software.
The market data and information provided through the Software is believed
to be reliable and The market data and information provided through the
Service is believed to be reliable and Investing Systems Inc. agrees to
run reasonable control checks thereon to verify that the data transmitted
is the same as the data received from the various exchanges and other
information sources. However, you assume all responsibility and risk arising
from your use of any and all information, data, service or product made
available by or through the Software. Investing Systems Inc. advises that
you always consult a stock broker or other authorized financial advisor
or representative to verify the accuracy of the stock prices and other
data you collect from or through the Service before making any investments,
financial decisions or taking, or refraining from taking, action of any
kind.
Section
4.07 -- Export Assurance: User shall not disclose, export, distribute
or transfer the Materials (directly or indirectly) outside the United
States of America. User shall not perform any act in conflict with or
in violation of the export laws and regulations of the United States of
America, including (without limitation) the Export Administration Act,
50 U.S.C. §2401, et seq., and the Export Administration Regulations, 15
C.F.R. Parts 730-774.
Section
4.08 -- Links: User hereby acknowledges that the ISI Web Site contains
Links to third party Web Sites which are provided solely as a convenience
to User and do not constitute an endorsement by ISI of such Web Sites
and the third party content therein.
ARTICLE
V: MISCELLANEOUS
Section
5.01 -- Entire Agreement: This Agreement contains the entire understanding
of the parties relating to the Materials and supersedes all previous verbal
and written agreements between ISI and User relating to the Materials.
Section
5.02 -- Amendments and Modifications: Excepting modifications made to
the Policy Statement by ISI and modifications made to this Agreement by
ISI, any alteration, modification or amendment of this Agreement shall
be void unless such alteration, modification or amendment is in writing
and signed by an authorized representative of ISI.
Section
5.03 -- Severability: If a provision of this Agreement is rendered invalid
the remaining provisions shall remain in full force and effect.
Section
5.04 -- Captions: The headings and captions of this Agreement are inserted
for convenience of reference and do not define, limit or describe the
scope or intent of this Agreement or any particular section, paragraph,
or provision.
Section
5.05 -- Governing Law: This Agreement is governed by the laws of the State
of Florida, without regard to any rules of conflict or choice of laws
that require the application of laws of another jurisdiction, and venue
shall be Jacksonville, Florida.
Section
5.06 -- User Notice: All notices shall be in writing. Notices to User
shall be deemed delivered when delivered to User electronically, by commercial
overnight delivery service, by Certified or Registered Mail - Return Receipt
Requested, or by hand. Notices to User shall be deemed given on the date
notice is delivered electronically or by hand to User or on the date of
receipt by User (as evidenced in the case of Certified or Registered Mail
by Return Receipt), whichever occurs first. Notices delivered to User
electronically (including, without limitation, electronic mail) shall
be deemed written notices.
Section
5.07 -- ISI Notice: All notices shall be in writing. Notices to ISI shall
be deemed delivered when delivered to ISI electronically, by commercial
overnight delivery service, Certified or Registered Mail - Return Receipt
Requested, or by hand to the address set forth below for ISI. Notices
to ISI shall be deemed given on the date notice is received by ISI (as
evidenced in the case of Certified or Registered Mail by Return Receipt).
Notices delivered to ISI electronically (including, without limitation,
electronic mail) shall be deemed in compliance with this Section 5.07
only if promptly confirmed in writing by User. Investing Systems Inc.
PO Box 15923 Fernandina Beach, FL 32035-3116
Section
5.08 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine,
feminine, singular or plural as the context shall require.
Section
5.09 -- Equitable Remedies: The parties hereby acknowledge and agree that
damages at law will be an inadequate remedy to ISI. In addition to other
rights that may be available, ISI shall have the right of specific performance,
injunction or other equitable remedy (including, without limitation, the
right to such equitable remedies prior to or pending arbitration) in the
event of a breach or threatened breach of this Agreement by User.
Section
5.10 -- Waiver: Waiver of a breach of this Agreement shall not constitute
a waiver of any other breach. All remedies under this Agreement are in
addition to equitable remedies and remedies provided by law and are cumulative.
Failure to enforce any provision of this Agreement shall not constitute
a waiver or create an estoppel from enforcing such provision. Any waiver
of a provision of this Agreement shall not be binding unless such waiver
is in writing and signed by the waiving party.
Section
5.11 -- Public Announcements: All public announcements concerning the
ISI Web Site or the relationship of User and ISI shall be subject to the
prior written approval of ISI.
Section
5.12 -- Arbitration: Any controversy or claim arising out of or relating
to this Agreement, or breach thereof, shall be settled by arbitration
in accordance with the Commercial Arbitration Rules (excluding Expedited
Procedures) of the American Arbitration Association in the city of Orlando,
Florida. The American English language shall be the applicable and controlling
language of the arbitration. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof, unless either
Distributor or ISI under this Section 5.12 has filed a subsequent request
for reconsideration. Three qualified arbitrators shall be appointed in
accordance with the Commercial Arbitration Rules (excluding Expedited
Procedures) of the American Arbitration Association and this Agreement.
Such qualified arbitrators shall be members of the bar of any State in
the United States of America and shall have at least five years of experience
in computer law matters. Each party shall have the right of discovery
as set forth in the Federal Rules of Civil Procedure. A stenographer shall
be present at the arbitration proceedings and the stenographic record
shall be the official record of the proceeding. The arbitration award
shall be in writing and shall include findings of fact and conclusions
of law. Each party shall have the right to appeal any decision of the
arbitrators by filing a request for reconsideration of such decision with
the American Arbitration Association within ninety days of receiving such
decision. Upon receiving such request for reconsideration, the American
Arbitration Association shall reconsider the matter de novo using a different
panel of three appellate arbitrators and the foregoing procedures. Such
panel of appellate arbitrators shall be selected using the same procedures
as used to select the original arbitrators. Each party shall pay an equal
share of the fees and expenses of the arbitrators and administrative fees
and expenses of the arbitration. Florida statute §682 shall apply.
Section
5.13 -- Litigation Expense: In the event of litigation or arbitration
arising out of this Agreement, each party shall pay its own costs and
expenses of litigation or arbitration (excluding fees and expenses of
arbitrators and administrative fees and expenses of arbitration) ISI-061
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