1. GRANT OF LICENSE
1.1 In consideration for the annual or monthly service fees paid by You, during the Term of Your Subscription Service, and/or for other good and valuable consideration, VectorVest grants You a single, non-exclusive, non-transferable, non-sublicensable, revocable and limited license to access and use the Software and to receive any data, information, and services provided by the Subscription Service solely for your personal, non-commercial use. You may download or install the Software and any data, information, and services provided by the Subscription Service to as many personal computers, mobile telephones, iPhones®, or other mobile communications devices as you wish to the extent Software is available for and compatible with the same, but you are limited to only one simultaneous login. Any copy or portion of the Software and any data, information, and services provided by the Subscription Service You access may only be accessed by You personally, via Your personal user name and password. You must choose a personal user name and password (collectively, “Access Methods”) for Your exclusive use. You agree to provide true, accurate, current and complete information about Yourself. You are solely responsible for ensuring that Your Access Methods are kept confidential and only used by You. You will be solely responsible for all acts or omissions of any person accessing the Software or Subscription Services through Your Access Methods, and all transmissions or transactions generated by use of You Access Methods shall be deemed to have been authorized by You.
1.2 In addition to the other terms and conditions of this Agreement, You shall NOT:
– Use, copy, modify or transfer the Software or any data or information provided by the Subscription Service, in whole or in part, including screen shots, except as provided in Section 1.1 above or without written permission from VectorVest;
– Decompile, disassemble or reverse engineer or otherwise attempt to derive or interfere with the code for the Software;
– Adapt, alter, or create derivative works based on the Software or Help File or any data or information provided by the Subscription Service, without written permission from VectorVest;
– Use the Software or any data or information provided by the Subscription Service in connection with any service bureau or simultaneously on more than one (1) workstation in any interactive cable, wireless, or other network of single user computers;
– Sell, rent, lend, provide, or lease the Software, your Access Methods, or any data or information provided by the Subscription Service, to or from another party;
– Use the Software or Subscription Service for non-personal, commercial purposes;
– Display, perform, or publish the Software or any data or information provided by the Subscription Service, or any portion thereof, including results of the VectorVest stock analysis, either publicly or to a third party, without written permission from VectorVest;
– Display, perform, or publish any results of benchmark tests run on the Software, or on any data or information provided by the Subscription Service, either publicly or to a third party, without prior and express written permission from VectorVest; or
– Obscure, alter, replace, or remove any trademarks, copyrights or other intellectual property notices on or associated with the Software, the Subscription Service, or any VectorVest web sites.
– Hire, solicit for hire, or retain, outside of this Agreement but for purposes within the scope of this Agreement, the services of VectorVest’s employees, during the period of time VectorVest provides goods or services to You under this Agreement, and for six months thereafter. If You breach this provision, in any respect, You agree to pay VectorVest, as liquidated damages, four times the said VectorVest employee’s annual salary.
– Mention or use the VectorVest name, or any trademarks of VectorVest, or any images or copyrights or other materials or property of VectorVest, in any non-personal or commercial publications, documents, printed matter, marketing, or advertising materials, in any format or medium, including electronic and online, on websites or in domain names, without the express prior written permission of VectorVest. Any such unauthorized uses by You of the VectorVest name, or any trademarks of VectorVest, or any images or copyrights or other materials or property, are hereby assigned by You to VectorVest, along with all rights, title, interests and goodwill related thereto.
– Imply, directly or indirectly, that VectorVest provides, endorses, sponsors, certifies, is connected with, is related to, is affiliated with, or approves any of Your conduct or content, websites, products, or services, in any capacity, even if in connection with the Subscription Service, without the express prior written permission of VectorVest.
1.3 In addition to the other terms and conditions of this Agreement, You shall comply with all applicable worldwide rules, laws, codes, and regulations related to the Subscription Service, and related to trading, securities, investing, and otherwise, including but not limited to any reporting requirements to all applicable government and regulatory agencies and authorities worldwide.
2. TERM AND TERMINATION
2.1 This Agreement shall commence upon first installation, download, copy, or use of the Software or Subscription Service by You, whether the Software is provided as a trial copy, as a fully licensed version, or any other form. Your use of any form, part, or portion of the Software or Subscription Service, whether temporary or not, is considered acceptance of this Agreement in its entirety.
2.2 VectorVest reserves the right to increase the annual and monthly subscription fees from time to time, and to apply any new subscription fees at the time of renewal of Your monthly or annual Subscription Service.
2.3 Your subscription and service will continue until canceled or terminated as provided herein. UNLESS YOU NOTIFY US THAT YOU WISH TO CANCEL, OR VECTORVEST ELECTS TO CANCEL, THE SUBSCRIPTION SERVICE, WE WILL AUTOMATICALLY RENEW THE SUBSCRIPTION SERVICE ON A PERIODIC BASIS; INCLUDING ANY MONTHLY OR ANNUAL SUBSCRIPTIONS, AS LONG AS WE CONTINUE TO CARRY THE SUBSCRIPTION SERVICE.
2.4 Both You and VectorVest may cancel the Subscription Service at any time, at-will. VectorVest may cancel the Subscription Service without notice to You. Upon termination by either You or VectorVest, VectorVest will cancel any monthly subscription You may have on the date of expiration of the current monthly period. If You are a monthly subscriber, no refunds will be given. If You are an annual subscriber, following any cancellation (other than a cancellation by VectorVest due to Your breach of this Agreement) You may receive a prorated refund for the unused portion of the annual Subscription Service, based on the date or termination. If You are an annual subscriber and cancel the Subscription Service, a 6% service charge will be applied to the refund. Notification of termination by You shall be made to VectorVest in writing via electronic mail (“email”) to email@example.com, or via letter to VectorVest, Inc., 2650 W. Market Street, Suite 1A, Akron, Ohio 44333. All telephone calls to VectorVest regardless of their nature or reason may be recorded for quality assurance purposes, and You hereby consent to the recording of the same. Sections 1.2, 1.3, 2.6, 3, 4, 5, 6, 7, 8, 9 and 10 of this Agreement shall survive the expiration or termination of Your subscription and this Agreement.
2.5 IF YOU TRANSFER POSSESSION OF ANY COPY OR MODIFICATION OF THE SOFTWARE TO ANOTHER PARTY OR IF YOU FAIL TO COMPLY WITH ANY TERM OR CONDITION OF THIS AGREEMENT, YOUR LICENSE IS AUTOMATICALLY TERMINATED.
2.6 Upon termination of this Agreement, by any party, for any reason, You agree to destroy or permanently delete the Software together with all copies and modifications in any form.
3. LIMITED WARRANTY AND REPRESENTATIONS
3.1 VectorVest warrants that (1) the documentation provided with the Software and any updates thereto are substantially complete and contain all the material information VectorVest deems necessary to use the Software; (2) the Software functions substantially as described in the Help File; and (3) the disk, or media on which the Software is provided, is not defective and the Software is properly recorded upon such media.
3.2 VectorVest represents that it has taken reasonable precaution to ensure that to the best of VectorVest’s knowledge, the Software does not contain (1) any virus or similar code that may destroy, modify, alter, or cause the deliberate destruction, modification or alteration, in whole or in part, of any of Your equipment, devices or the Software or (2) other computer software routine or hardware components that are designed (i) to deliberately permit unauthorized access or use by third parties of the Software installed on Your equipment, (ii) to deliberately disable or damage hardware or deliberately damage, erase or delay access to software or data installed on Your equipment, or (iii) to deliberately perform any other similar actions.
3.3 The sole and exclusive remedy for breach of this Limited Warranty is replacement of defective Software. This Limited Warranty is for the duration of the subscription to the Subscription Service and is extended only to You personally. If applicable, in order to replace a defective disk during the warranty term, please write to VectorVest via email to firstname.lastname@example.org, or via letter to VectorVest, Inc., 2650 W. Market Street, Suite 1A, Akron, Ohio 44333.
3.4 EXCEPT AS PROVIDED ABOVE AND SUBJECT TO ANY CONTRARY PROVISIONS OF APPLICABLE STATE LAW, VECTORVEST DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR SUITABILITY, OR NON-INFRINGEMENT OF THE SOFTWARE AND SUBSCRIPTION SERVICE AND ANY RELATED PRODUCTS AND SERVICES AND ANY WARRANTY COVERAGE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SOFTWARE OR SUBSCRIPTION SERVICE OR ANY RELATED PRODUCTS AND SERVICES. VECTORVEST SPECIFICALLY DISCLAIMS WARRANTY COVERAGE FOR ANY INFORMATION OR DATA PROVIDED THROUGH THE SOFTWARE OR SUBSCRIPTION SERVICE. EXCEPT AS OTHERWISE PROVIDED ABOVE, THE SOFTWARE, SUBSCRIPTION SERVICE, THE USER GUIDES OR OTHER DOCUMENTATION, ANY RELATED PRODUCTS AND SERVICES AND THE DATA AND INFORMATION, DOWNLOADED OR OTHERWISE AVAILABLE PURSUANT TO THIS AGREEMENT ARE ALL PROVIDED “AS IS.” YOU ARE ASSUMING TOTAL RESPONSIBILITY FOR YOUR USE OF THE SUBSCRIPTION SERVICES AND SOFTWARE AND FOR ANY TRADING LOSSES OR LOSS OF PROFITS, GOODWILL, USE, DATA, AND FOR ALL OTHER INTANGIBLE LOSSES OF ANY KIND OR NATURE, REGARDLESS OF CAUSE. ANY WARRANTIES ARISING IN THE COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE EXCLUDED. VECTORVEST DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
4. LIMITATION AND WAIVER OF LIABILITY
IN NO EVENT WILL VECTORVEST BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) FOR ANY TORT, CONTRACT OR ANY OTHER DAMAGE OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR RELIANCE ON THE SOFTWARE, SUBSCRIPTION SERVICE, VECTORVEST WEBSITES, DATA, INFORMATION OR RELATED PRODUCTS OR SERVICES PROVIDED BY VECTORVEST OR ITS EMPLOYEES OR AGENTS, EVEN IF WE ARE SOLELY NEGLIGENT. VECTORVEST SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, AND EVEN IF VECTORVEST HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY TRADING LOSSES OR LOSS OF PROFITS, GOODWILL, USE, DATA, OR FOR OTHER INTANGIBLE LOSSES, OR FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, RESULTING FROM: (i) THE USE OF OR INABILITY TO USE THE SOFTWARE OR SUBSCRIPTION SERVICE, INCLUDING THE INABILITY TO MAKE A TRADE OR TO MAKE A TRADE AT A PARTICULAR PRICE, OR OTHERWISE IN CONNECTION WITH TRANSACTIONS ENTERED INTO THROUGH OR FROM OR IN RELIANCE UPON THE SOFTWARE OR THE SUBSCRIPTION SERVICE; (ii) THE ACCURACY OF ANY DATA RELATED TO OR PROVIDED IN ASSOCIATION WITH THE SOFTWARE OR SUBSCRIPTION SERVICE, INCLUDING ANY ERRORS OR OMISSIONS CAUSED BY VECTORVEST’S OWN NEGLIGENCE; (iii) ANY INVESTMENT OR TRADING ADVICE PROVIDED BY VECTORVEST EMPLOYEES OR AGENTS; (iv) THE COST OF GETTING SUBSTITUTE PRODUCTS OR SERVICES RESULTING FROM ISSUES, ERRORS OR THE INABILITY TO USE ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED FROM VECTORVEST; OR (v) FOR ANY OTHER CLAIM BY YOU OR ANOTHER PARTY RELATED TO THE SOFTWARE, SUBSCRIPTION SERVICE, OR ANY RELATED PRODUCTS OR SERVICES. YOU ASSUME THE ENTIRE RISK AS TO YOUR USE OF AND RELIANCE ON THE SOFTWARE AND SUBSCRIPTION SERVICE OR ON ANY OTHER RELATED PRODUCTS OR SERVICES, AND YOU ASSUME THE ENTIRE RISK AS TO THE USE, FAILURE AND LOSS OF ANY AND ALL DATA CONNECTIONS. IT IS YOUR RESPONSIBILITY TO DETERMINE THAT THE SOFTWARE AND SUBSCRIPTION SERVICE SUFFICIENTLY MEET YOUR REQUIREMENTS. YOU HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST VECTORVEST FOR BREACH OF CONTRACT, BREACH OF WARRANTY (EXCEPT FOR THE LIMITED WARRANTY IN SECTION 3.1 AND THE REMEDIES THEREFOR), OR NEGLIGENCE, RELATED TO THE SOFTWARE, THE SUBSCRIPTION SERVICE, OR ANY RELATED PRODUCTS OR SERVICES.
ALTHOUGH VECTORVEST TRIES TO PROVIDE ACCURATE AND TIMELY INFORMATION ON ITS WEBSITES AND THROUGH ITS SOFTWARE AND SUBSCRIPTION SERVICE, THERE MAY FROM TIME TO TIME BE INADVERTENT TECHNICAL OR FACTUAL INACCURACIES AND TYPOGRAPHICAL ERRORS, AS WELL AS DATA AND INFORMATIONAL ERRORS. VECTORVEST RESERVES THE RIGHT TO MAKE CHANGES AND CORRECTIONS AT ANY TIME TO ANY ERRORS, WITHOUT NOTICE OR LIABILITY TO YOU OR ANY THIRD PARTY. IN ADDITION, VECTORVEST MAY MAKE CHANGES TO INFORMATION OR DATA AT ANY TIME BUT MAKES NO COMMITMENT TO UPDATE THE INFORMATION OR DATA PROVIDED BY VECTORVEST AS PART OF THE SOFTWARE OR SUBSCRIPTION SERVICE OR AS PART OF ANY OTHER RELATED PRODUCTS OR SERVICES. THE INFORMATION AND DATA PROVIDED THROUGH VECTORVEST’S SOFTWARE, SUBSCRIPTION SERVICE, AND ANY OTHER RELATED PRODUCTS AND SERVICES, IS PROVIDED “AS-IS” AND “AS-AVAILABLE.” VECTORVEST DOES NOT REPRESENT, WARRANT OR GUARANTEE, AND HEREBY DISCLAIMS ALL LIABILITY FOR, AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PARTY FOR YOUR RELIANCE ON, THE ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF THE SOFTWARE, SUBSCRIPTION SERVICE, DATA, INFORMATION, TEXT, GRAPHICS, LINKS, FUNCTIONALITY, VECTORVEST WEBSITES, VECTORVEST ONLINE™, VECTORVEST PROTRADER™, VECTORVEST PROGRAPHICS™, VECTORVEST OPTIONS ANALYZER™, VECTORVEST REALTIME™, VECTORVEST ROBOTRADER™ , VECTORVEST U.S.™, VECTORVEST CANADA™, VECTORVEST EUROPE™, VECTORVEST U.K.™, VECTORVEST AUSTRALIA™, THE “TRADE NOW” FUNCTIONALITY, OR ANY OTHER ITEMS, GOODS, SEVRICES OR FUNCTIONALITY PROVIDED BY VECTORVEST. VECTORVEST EXPRESSLY DISCLAIMS ALL LIABILITY FOR, AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PARTY FOR, ERRORS, INACCURACIES, UNRELIABILITY, OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, OR ACTIONS TAKEN OR NOT TAKEN BASED ON ANY DATA OR INFORMATION CONTAINED IN THE SOFTWARE, THE SUBSCRIPTION SERVICE, ANY VECTORVEST WEBSITES, VECTORVEST ONLINE™, VECTORVEST PROTRADER™, VECTORVEST PROGRAPHICS™, VECTORVEST OPTIONS ANALYZER™, VECTORVEST REALTIME™, VECTORVEST ROBOTRADER™ , VECTORVEST U.S.™, VECTORVEST CANADA™, VECTORVEST EUROPE™, VECTORVEST U.K.™, VECTORVEST AUSTRALIA™, THE “TRADE NOW” FUNCTIONALITY, OR ANY OTHER ITEMS, GOODS, SEVRICES OR FUNCTIONALITY PROVIDED BY VECTORVEST, EVEN IF THE RESULT OF OUR NEGLIGENCE.
IN NO EVENT SHALL VECTORVEST LIABILITY UNDER THIS AGREEMENT, IF ANY, EXCEED THE SUBSCRIPTION FEE PAID BY YOU FOR THE SPECIFIC SUBSCRIPTION TERM IN WHICH THE ALLEGED EVENT CREATING LIABILITY AROSE. EXCEPT AS LIMITED OR RESTRICTED ELSEWHERE BY THIS AGREEMENT, THE PREVAILING PARTY IN ANY LITIGATION OR ARBITRATION ARISING OUT OF THIS AGREEMENT SHALL BE PAID, IN ADDITION TO ANY OTHER RELIEF, ITS REASONABLE ATTORNEYS FEES FOR SUCH LITIGATION OR ARBITRATION, BY THE NON-PREVAILING PARTY, WITHIN THIRTY DAYS OF THE FINAL CONCLUSION OF THE PROCEEDING.
5.1 VECTORVEST PRODUCTS AND SERVICES ARE COMPRISED IN PART OF REPORTS EMBODYING A UNIQUE SYSTEM OF STOCK ANALYSIS. ALL CONTENTS AND RECOMMENDATIONS CONTAINED IN VECTORVEST PRODUCTS OR SERVICES
ARE BASED ON DATA AND SOURCES BELIEVED TO BE RELIABLE, BUT ACCURACY AND COMPLETENESS CANNOT BE GUARANTEED. ALL SOFTWARE, SUBSCRIPTION SERVICE, INFORMATION, DATA, REPORTS AND CONTENT PROVIDED BY VECTORVEST ARE FOR INFORMATIONAL, EDUCATIONAL, AND/OR ENTERTAINMENT PURPOSES ONLY AND ALLOW YOU TO EVALUATE, OR TO MAKE INDEPENDENT DECISIONS CONCERNING, INVESTMENT STRATEGIES. IN PARTICULAR, YOU AGREE THAT THE VECTORVEST, IN PROVIDING THE SOFTWARE, HAS NOT ACTED AND IS NOT ACTING AS YOUR FIDUCIARY OR PROVIDED (OR HELD ITSELF OUT AS PROVIDING) ADVICE RESPECTING PARTICULAR INVESTMENT DECISIONS, AND THAT THE SOFTWARE SHALL NOT SERVE AS THE PRIMARY BASIS FOR ANY INVESTMENT DECISION MADE BY YOU. SPECIFICALLY, NOTHING ON VECTORVEST’S WEBSITE, OR IN THE SOFTWARE OR AS PART OF THE SUBSCRIPTION SERVICE, IS A RECOMMENDATION, ADVICE, OR SOLICITATION TO BUY, SELL OR HOLD STOCKS, SECURITIES, BONDS, FUTURES OR OTHER INVESTMENTS OR FINANCIAL INSTRUMENTS. YOU SHOULD NOT CONSTRUE ANY DATA OR INFORMATION PROVIDED BY VECTORVEST AS LEGAL, TAX, INVESTMENT, FINANCIAL OR OTHER ADVICE.
5.2 VECTORVEST REPRESENTATIVES ARE NOT AUTHORIZED, TRAINED OR PERMITTED TO PROVIDE INVESTMENT OR TRADING ADVICE OR TO SOLICIT ORDERS. VECTORVEST IS NOT RESPONSIBLE FOR ANY ACTIONS TAKEN AS A RESULT OF ANY INVESTMENT OR TRADING INFORMATION OR ADVICE PROVIDED BY A VECTORVEST REPRESENTATIVE OR EMPLOYEE AS A RESULT OF COMMUNICATIONS FROM OR TO YOU VIA EMAIL, TELEPHONE OR OTHERWISE, AND SUCH INFORMATION OR ADVICE RECEIVED BY YOU SHOULD NOT BE RELIED UPON OR CONSIDERED ACCURATE FOR ANY REASON.
5.3 YOU AGREE THERE ARE RISKS INVOLVED IN IMPLEMENTING INVESTMENT STRATEGIES AND STOCK INVESTMENTS IN GENERAL. YOU AGREE THAT FUTURE RESULTS MAY NOT BE PROFITABLE OR EQUAL TO REPRESENTATIONS OF PAST PERFORMANCE WHETHER REAL, INDICATED OR IMPLIED. IN ADDITION, YOU ACKNOWLEDGE THAT DETRIMENTAL FINANCIAL RESULTS MAY OCCUR THROUGH USE OF THE SOFTWARE OR SUBSCRIPTION SERVICE AND ACCEPT ALL FINANCIAL CONSEQUENCES RESULTING FROM SUCH USE OF THE SOFTWARE AND SUBSCRIPTION SERVICE. YOU ALONE ASSUME SOLE RESPONSIBILITY FOR ANY INVESTMENT DECISIONS YOU MAKE BASED ON THE SOFTWARE, THE SUBSCRIPTION SERVICE, OR ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED BY VECTORVEST. VECTORVEST, ITS EMPLOYEES, AGENTS, OR AFFILIATES ARE NOT RESPONSIBLE FOR ANY LOSSES YOU MAY INCUR AND YOU AGREE NOT TO HOLD VECTORVEST LIABLE OR RESPONSIBLE FOR ANY POSSIBLE CLAIM FOR DAMAGES ARISING FROM ANY DECISION YOU MAKE BASED ON DATA OR INFORMATION MADE AVAILABLE TO YOU BY VECTORVEST, THE SOFTWARE, THE SUBSCRIPTION SERVICE, OR ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED BY VECTORVEST, EVEN IF WE ARE SOLELY NEGLIGENT.
5.5 YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR PROCURING ALL EQUIPMENT, CONNECTIONS AND OTHER SOFTWARE PRODUCTS WHICH MAY BE NECESSARY FOR YOUR USE OF THE SOFTWARE AND THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE FOREGOING. IN ADDITION, YOU ARE SOLELY RESPONSIBLE FOR PROTECTING YOUR DATA AND FOR ENSURING THAT YOUR DATA IS APPROPRIATELY BACKED UP.
5.6 VECTORVEST DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ANY NETWORK. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET PROVIDED BY OR CONTROLLED BY THIRD PARTIES. ACTIONS OR INACTIONS OF SUCH THIRD PARTIES OR OTHER PERSONS CAN IMPAIR OR DISRUPT CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). VECTORVEST SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY LOSS OF A DATA CONNECTION OR ANY FAILURE OF A TRANSACTION DUE TO ANY SUCH LOSS OF A DATA CONNECTION. ACCORDINGLY, VECTORVEST DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5.7 THE DISCLAIMER OF WARRANTY, LIABILITY AND OTHERWISE CONTAINED IN THIS AGREEMENT CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE OR SUBSCRIPTION SERVICE, INFORMATION, DATA OR AND ANY RELATED PRODUCTS AND SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS.
You agree to indemnify and hold the VectorVest harmless from and against any third party claims, and all liabilities, assessments, losses, costs or damages resulting therefrom which are awarded or paid in settlement to such third party, as well as the expenses of any legal proceeding related thereto, to the extent such third party claims relate to (i) your use of the Software (including where the Software contributed to or caused the alleged damage), (ii) modification of the Software other than by the VectorVest, or (iii) your violation of laws and regulations related to use of the Software, including, without limitation, any export, securities and futures laws and regulations.
7. USE AND OWNERSHIP OF THE VECTORVEST INTELLECTUAL PROPERTY
7.1 VECTORVEST™, VECTORVEST ONLINE™, VECTORVEST PROTRADER™, VECTORVEST PROGRAPHICS™, VECTORVEST OPTIONS ANALYZER™, VECTORVEST REALTIME™, VECTORVEST ROBOTRADER™ , VECTORVEST U.S.™, VECTORVEST CANADA™, VECTORVEST EUROPE™, VECTORVEST U.K.™, VECTORVEST AUSTRALIA™, the names of any other VectorVest product or servics, and the logostyle, geometric designs are, individually and collectively, trademarks or service marks owned by VectorVest. All other products mentioned in the Software, on the VectorVest website, or as part of the Subscription Service are registered trademarks or trademarks of their respective companies.
7.2 The Software, the Subscription Service, all VectorVest websites, and accompanying materials are Copyright 2002-2015 by VectorVest, all rights reserved. You acknowledge that the Software constitutes confidential and proprietary information of the VectorVest. At all times (both during the term of this Agreement and thereafter) you must hold the Software in the strictest confidence and may not use the Software in any manner or for any purpose other than as permitted herein and shall not disclose the Software to, or allow use by, any other person or entity. Further, you acknowledge that the Software shall remain the property of the VectorVest and you agree to notify the VectorVest immediately upon discovery of any unauthorized disclosure or use of the Software and to cooperate with the VectorVest in every reasonable way to help the VectorVest regain possession of the Software and/or to prevent further unauthorized use or disclosure of the Software.
7.3 Except as specifically permitted in this Agreement, You may not use any of VectorVest’s trademarks, copyrighted materials, web sites, data, information, web site content, web site screenshots, online screenshots, Software screenshots, backtesting, or other proprietary information and/or data without express prior written consent and approval from VectorVest.
8. CONSENT TO DISCLOSURE TO GOVERNMENTS OF YOUR ACCOUNT INFORMATION
YOU HEREBY AUTHORIZE VECTORVEST TO DISCLOSE TO ANY AND ALL GOVERNMENT AND REGULATORY AGENCIES OR AUTHORITIES OF ANY KIND, WORLDWIDE, INFORMATION REGARDING YOUR IDENTITY, ACCOUNT DETAILS, ACCOUNT INFORMATION, PERSONALLY IDENTIFIABLE INFORMATION, ADDRESS, LOCATION, AND CONTACT DETAILS, WITHOUT ANY PRIOR NOTICE TO YOU, AND WITHOUT ANY LIABILITY TO VECTORVEST OR CLAIMS AGAINST VECTORVEST WHATSOEVER FOR SUCH DISCLOSURES.
9. CONSENT TO RECEIVE PRE-RECORDED TELEPHONE SOLICITATIONS AND/OR TELEMARKETING SALES CALLS
9.1 IF YOU DO NOT AGREE TO ELECTRONIC EXECUTION OF THIS AGREEMENT, OR DO NOT AGREE TO ELECTRONICALLY ASSENTING TO THIS AGREEMENT, DO NOT ASSENT TO OR EXECUTE THIS AGREEMENT, AND REQUEST A PAPER COPY OF THIS AGREEMENT FOR EXECUTION, BY EMAILING US AT SUPPORT@VECTORVEST.COM, OR WRITING TO US AT VECTORVEST, INC., 2650 W. MARKET STREET STE 1A, AKRON OH 44333.
9.2 BY ASSENTING TO, CLICKING “I AGREE”, SIGNING, OR EXECUTING THIS AGREEMENT, WHETHER IN PAPER OR ELECTRONIC FORM, YOU EXPRESSLY HEREBY CONSENT TO RECEIVING, AND AUTHORIZE VECTORVEST AND THOSE IT CONTRACTS WITH ON ITS BEHALF TO PLACE AND MAKE, TELEPHONE SOLICITATIONS AND TELEMARKETING SALES CALLS (RELATED TO VECTORVEST, THE VECTORVEST SOFTWARE, SUBSCRIPTION SERVICES, AND OTHER VECTORVEST PRODUCTS AND SERVICES) THAT DELIVER PRE-RECORDED MESSAGES TO THE TELEPHONE NUMBERS YOU DESIGNATE AND PROVIDE TO VECTORVEST.
9.3 IF AT ANY TIME YOU DO NOT, OR NO LONGER CONSENT TO OR AUTHORIZE SUCH PRE-RECORDED TELEMARKETING SALES CALLS AS DESCRIBED ABOVE, OR WISH TO OPT-OUT FROM RECEIVING SUCH CALLS, YOU HAVE THE RIGHT TO WITHDRAW YOUR CONSENT TO RECEIVING, AND TO OPT OUT FROM RECEIVING, THE SAME, WITHOUT ANY FEES OR CHARGES. TO WITHDRAW YOUR CONSENT OR TO OPT OUT, PLEASE NOTIFY VECTORVEST BY EMAILING US AT SUPPORT@VECTORVEST.COM, OR WRITING TO US AT VECTORVEST, INC., 2650 W. MARKET STREET STE 1A, AKRON OH 44333, ATTN: MRS. LINDA ROYER.
9.4 YOUR CONSENT TO RECEIVE PRE-RECORDED TELEPHONE SOLICITATIONS AND TELEMARKETING SALES CALLS IS REQUIRED BY LAW TO BE IN WRITING. YOU HAVE THE OPTIONS OF MAKING THIS WRITTEN CONSENT IN A PAPER OR IN A NONELECTRONIC FORM OF THIS AGREEMENT, OR IN AN ELECTRONIC FORM OF THIS AGREEMENT. YOU ALSO HAVE THE OPTION OF NOT CONSENTING AT ALL, BY FOLLOWING THE OPT OUT PROCEDURES AS EXPLAINED IN SECTION 8.3.
9.5 BY EXECUTING THIS AGREEMENT IN ELECTRONIC FORM YOU ARE INDICATING THAT YOUR ELECTRONIC NOTATION, SIGNATURE, OR EXECUTION OF THIS AGREEMENT INDICATES AND IS EVIDENCE OF YOUR ASSENT TO THIS AGREEMENT, AND IS SUFFICIENT TO MEET THE WRITING REQUIREMENT, INSTEAD OF A SEPARATE PAPER SIGNED BY YOU. BY EXECUTING THIS AGREEMENT IN ELECTRONIC FORM YOU ALSO AGREE TO THE STORAGE OF THIS CONSENT HEREIN, AND OF THIS AGREEMENT, AS AN ELECTRONIC RECORD, INSTEAD OF AS A PAPER RECORD. BY EXECUTING THIS AGREEMENT IN ELECTRONIC FORM YOUR CONSENT GRANTED HEREIN IS NOT A CONSENT FOR OR TO ANY OTHER MATTER OUTSIDE OF THIS AGREEMENT.
9.6 TO UPDATE THE INFORMATION NEEDED FOR VECTORVEST TO CONTACT YOU ELECTRONICALLY, PLEASE SEND YOUR UPDATED INFORMATION IN WRITING, BY EMAILING US AT SUPPORT@VECTORVEST.COM, OR WRITING TO US AT VECTORVEST, INC., 2650 W. MARKET STREET STE 1A, AKRON OH 44333.
9.7 IF AT ANY TIME YOU WISH TO OBTAIN A PAPER COPY OF THE ELECTRONIC RECORD OF THIS AGREEMENT EXECUTED BY YOU, PLEASE EMAIL US AT SUPPORT@VECTORVEST.COM, OR WRITE TO US AT VECTORVEST, INC., 2650 W. MARKET STREET STE 1A, AKRON OH 44333.
9.8 IF YOU WISH TO ACCESS AND RETAIN THIS AGREEMENT AS EXECUTED BY YOU AS AN ELECTRONIC RECORD, PLEASE EMAIL US AT SUPPORT@VECTORVEST.COM, OR WRITE TO US AT VECTORVEST, INC., 2650 W. MARKET STREET STE 1A, AKRON OH 44333. YOU WILL NEED A COMPUTER CONNECTED TO THE INTERNET, AN ACTIVE EMAIL ADDRESS, AND ADOBE® ACROBAT READER TO OPEN AND READ THE .PDF E-MAIL ATTACHMENT. IF THESE HARDWARE AND SOFTWARE REQUIREMENTS CHANGE, YOU WILL BE NOTIFIED BY VECTORVEST AND PROVIDED WITH REVISED INFORMATION.
10.1 When You use the Subscription Service, You are communicating with us electronically. We may communicate with You, and you consent to receive such communication, through the Subscription Service or via email. You agree that all agreements, notices, disclosures and other communications that We provide to you electronically satisfy any legal requirement that such communications be in writing.
10.2 Force Majeure. VectorVest shall not be liable to You for any failure to perform under this Agreement or for the failure of any VectorVest products or services, if such failure results, whether directly or indirectly, from fire, explosion, strike, freight embargo, act of God, or of the public enemy, war, civil disturbance, terrorism, act of any government, de jure or de facto, or agency or official thereof, labor shortage, transportation contingencies, interruptions of power or communications, internet slowdowns or failures, unusually severe weather, default of manufacturer or a supplier as subcontractor, quarantine restrictions, epidemic, or catastrophe, or lack of timely instructions or essential information from the other party.
10.4 Forum for Disputes or Claims Related to This Agreement; Waiver of Legal Right to Trial and to Class Action; Right to Opt out of Arbitration or from Bar on Class Action. Any dispute or claim raised by You arising out of or relating to this Agreement or the subject matter hereof will be submitted only to binding arbitration on a confidential basis, conducted strictly in accordance with the terms of this Agreement and the substantive law of the State of Ohio. The arbitration venue and all related hearings will be in Akron, Ohio. The parties agree that the arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association. Unless You and VectorVest concur in the appointment of a single arbitrator, the matter of difference shall be referred to three (3) arbitrators appointed to hear the case pursuant to the procedures set forth in the Commercial Arbitration Rules of the American Arbitration
Association. The arbitrators must base their decision with respect to the difference before them on the contents of this Agreement, and the decision of any two of the three arbitrators shall be binding on both You and VectorVest. Judgment upon the award rendered by the arbitrator(s) may be entered and enforced in any court of competent jurisdiction. Neither You or VectorVest will be precluded hereby from seeking equitable provisional remedies in the courts of any jurisdiction including, but not limited to, temporary restraining orders and preliminary injunctions, but such equitable remedies will not and may not be sought to avoid or stay arbitration. YOU HEREBY AGREE AND UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO FILE A LAWSUIT AGAINST VECTORVEST IN A COURT OF LAW. ANY DISPUTE OR CLAIM RAISED BY VECTORVEST HOWEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL AT VECTORVEST’S SOLE CHOICE AND DISCRETION, EITHER BE SUBMITTED TO BINDING ARBITRATION IN ACCORDANCE WITH THIS SECTION 10.4, OR FILED AS A LAWSUIT IN THE APPROPRIATE FEDERAL OR STATE COURT. YOU HEREBY AGREE TO THIS DIFFERENCE IN THE AVAILABILITY OF AND FORUM FOR RELIEF FOR DISPUTED CLAIMS BETWEEN YOURSELF AND VECTORVEST, AS SET FORTH IN THIS SECTION. YOU FURTHER AGREE NOT TO PURSUE OR BE THE PLAINTIFF OR REPRESENTATIVE IN ANY CLASS ACTION CASES OR LITIGATIONS AGAINST VECTORVEST ANYWHERE WORLDWIDE, RELATED TO THE SUBSCRIPTION SERVICE, OR TO ANY VECTORVEST CONDUCT, PRODUCTS OR SERVICES. YOU HEREBY AGREE AND UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO BE INVOLVED IN ANY CLASS ACTION AGAINST VECTORVEST.
NOTWITHSTANDING THE FOREGOING, YOU HAVE THIRTY (30) DAYS TO OPT OUT OF ANY SPECIFIC TERM OR PROVISION OF THIS SECTION 10.4 WITH WHICH YOU DISAGREE, DO NOT ACCEPT, OR WISH TO REJECT, ALTER, AMEND, OR FURTHER NEGOTIATE. TO OPT OUT FROM THE REQUIREMENTS OF THIS SECTION 10.4, AND FROM ACCEPTING THIS SECTION 10.4, PLEASE EMAIL VECTORVEST AT SUPPORT@VECTORVEST.COM, OR WRITE TO VECTORVEST, INC., AT 2650 W. MARKET STREET STE 1A, AKRON OH 44333, ATTN: MRS. LINDA ROYER. WHEN OPTING OUT FROM THIS SECTION 10.4, PLEASE INDICATE YOUR NAME, ACCOUNT DETAILS, AND SPECIFY WHETHER YOU ARE OPTING OUT FROM ALL OR ONLY A PORTION OF SECTION 10.4, AND IF ONLY A PORTION, PLEASE IDENTIFY AND DESIGNATE THE SPECIFIC PORTION FROM WHICH YOU ARE OPTING OUT.
10.5 Governing Law and Venue. Except as relates to any federal law causes of action, this Agreement shall be governed in all respects by the substantive laws of the State of Ohio, but excluding the application of Ohio’s choice of law provisions. Any arbitration or provisional equitable action commenced by You, or arbitration, equitable, or other legal action in a court of law commenced by VectorVest, arising out of or relating to this Agreement, shall be commenced in or as close as possible to Akron, Ohio. In any action commenced by VectorVest in a court of law You irrevocably hereby submit and consent to and agree not to contest, object to, or challenge, the personal jurisdiction over You, by any court in Akron, Ohio, in which such action is filed, as well as to the venue of such court, and you hereby waive any and all defenses, challenges, or objections related to personal jurisdiction and venue. NO ACTION, REGARDLESS OF FORM, RELATING IN ANY MANNER TO THE SOFTWARE, THE SUBSCRIPTION SERVICE OR OTHERWISE TO THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS SECTION, A CAUSE OF ACTION IS DEEMED TO HAVE ACCRUED WHEN YOU KNEW OR REASONABLY SHOULD HAVE KNOWN ABOUT THE BREACH OR CLAIMED BREACH.
10.6 Enforceability. You agree the Agreement and all terms and conditions herein are enforceable and are not unconscionable and not in violation of public policy. You agree the Agreement is not a contract of adhesion and that You had the power and control to reject, alter, and negotiate the terms and conditions herein. In the event any specific sentences, portions, or provisions of this Agreement are held by a court of competent jurisdiction or an arbitrator to be invalid or unenforceable, the remaining sentences, portions and provisions of this Agreement will remain binding and in full force and effect. No employee, agent or representative of VectorVest has any authority to vary, waive or contradict any of the terms of this Agreement.
10.8 Entire Agreement; Modifications. VECTORVEST MAY REVISE, UPDATE, AND AMEND THIS AGREEMENT AT ANY TIME, EFFECTIVE UPON YOUR CONSENT BY SELECTION OF “I AGREE” WHEN PRESENTED WITH A REVISED, UPDATED, OR MODIFIED VERSION OF THIS AGREEMENT. This Agreement, including any future revisions, is the entire agreement and understanding between You and VectorVest with respect to the subject matter of this Agreement and supersedes all prior agreements, representations, inducements, negotiations and understandings between, by and among You and VectorVest, whether oral or written, all of which are merged into this Agreement. VectorVest disclaims all representations other than those expressly set forth in this Agreement. You agree You are not relying on or accepting any representations, coercions, representations, or inducements by VectorVest, relating to the subject matter hereof, made outside of this Agreement, nor that there were any outside of this Agreement upon which to rely.
By clicking “I agree” You will be signing this Agreement with a binding electronic signature, and You acknowledge that You have read and understood this Agreement’s terms and conditions, the disclaimers, the waivers of Your legal rights, that You understand the responsibilities and obligations this Agreement places on You, and that You agree to be legally bound by all the terms and conditions of this Agreement, with the exception of any provisions from which you have opted out or will opt out in accordance with Section 9.3 within the required time period for opting out.
IF YOU DO NOT AGREE WITH OR UNDERSTAND ANY OF THESE TERMS OR CONDITIONS, INCLUDING THE OPT OUT PROVISIONS, DO NOT EXECUTE THIS AGREEMENT AND DO NOT INSTALL, DOWNLOAD, USE, OR OTHERWISE ACCESS THE SOFTWARE, THE SUBSCRIPTION SERVICE, ANY VECTORVEST WEB SITES, OR ANY RELATED PRODUCTS OR SERVICES.
Revision Date: 1/28/2016