STOCKMARKETEYE MOBILE APPLICATION
END-USER LICENSE AGREEMENT AND
Last Updated: January 6th, 2023
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION AND AFFECT YOUR LEGAL RIGHTS. THEY INCLUDE A MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WHICH (WITH LIMITED EXCEPTIONS) REQUIRE ANY DISPUTES BETWEEN US TO BE RESOLVED THROUGH INDIVIDUAL ARBITRATION RATHER THAN BY A JUDGE OR JURY IN COURT.
BY CLICKING TO ACCEPT AND/OR OTHERWISE USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
BEFORE USING OUR SERVICES, THE FOLLOWING CONTEXT IS HEREBY ACKNOWLEDGED AND AGREED BY YOU:
Use of the Service is explicitly conditioned on your compliance with these Terms and accordingly we reserve the right to take action, with or without advance notice, if we believe you have violated these Terms.
SME is not a financial institution, exchange, money services business, or creditor. SME is not an “investment adviser” as defined in the federal Investment Advisers Act of 1940. SME is not or a “broker” or a “dealer” as those terms are defined under the federal Securities Exchange Act of 1934. SME is not a financial planning advisory service of any kind. SME provides a desktop and mobile application that allows Users to control and analyze their own financial information and positions with or without the assistance of third-party financial advisors. SME does not provide users with tax, legal, financial planning, insurance, accounting, investment, or any other kind of professional advice or services, and nothing found within, provided by, or related to the Service should be construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any purchase decision, security, insurance policy, or investment strategy. Nothing provided by SME within its Service should be used as a substitute for the individually tailored advice that can be provided by a licensed professional. You agree to be solely responsible for your use of Service and any information available through Services.
SME reserves the right to change or modify these Terms at any time and in our sole discretion. If we make material changes to these Terms, we will use reasonable efforts to provide notice of such changes, such as by providing notice through the Service. By continuing to access or use the Service, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference effective as of the date these Terms are updated. It is your sole responsibility to review the Terms from time to time to view such changes and to ensure that you understand the terms and conditions that apply when you access or use the Service.
LICENSE AND RESTRICTIONS
1.1. Ownership, In General. The Service, including its “look and feel” (e.g., text, graphics, images, logos, page headers, button icons, and scripts), proprietary content, information and other materials, and all content and other materials contained therein, including, without limitation, the SME logo and all designs, text, graphics, pictures, data, software, sound files, other files, and the selection and arrangement thereof are the proprietary property of SME or our affiliates, licensors, or users, as applicable. You agree not to take any action(s) inconsistent with such ownership interests. We and our affiliates, licensors, and users, as applicable, reserve all rights in connection with the Service and its content, including, without limitation, the exclusive right to create derivative works.
1.2. Our Intellectual Property. SME’s name, logo, trademarks, and any product or service names, designs, logos, and slogans are the intellectual property of SME or our affiliates or licensors and may not be copied, imitated or used, in whole or in part, without our prior written permission in each instance. All other third-party trademarks, registered trademarks, and product names mentioned on the Service or contained in the content linked to or associated with the Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable intellectual property rights holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by SME.
1.4. License Conditions and Restrictions. As a condition of the license granted to you under the terms of this Agreement, you are expressly prohibited from the following:
- Distributing, framing, emulating, cloning, publishing, displaying, selling, assigning, sublicensing, renting, leasing, loaning, modifying, publicly displaying, publicly performing, creating derivative works of, translating, or adapting the Service;
- Decompiling, reverse engineering, disassembling, or hacking the Service;
- Scraping, caching, or utilizing the Service through a proxy;
- Unless otherwise allowed under a group license, granting more than one user access to Service;
- Using documents downloaded from the Service after the expiration or termination your User Account;
- Circumventing the Service’s technology protection measures;
- Infringing upon the intellectual property or other proprietary rights of SME;
- Exporting the Service in violation of the export controls or regulations of the laws of your country or any other country’s laws or regulations;
- Using the Service to violate any applicable law, statute, regulation, ordinance, or treaty, whether national or international;
- Using the Service to violate the rights of third parties, including, but not limited to, personal and proprietary rights; and
- Removing or altering any proprietary notices contained within the Service, including, but not limited to, copyright and trademark notices.
1.5. No Right to Unlimited Access or Use. Your access and use of the Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, or repair of the Service or other actions that we, in our sole discretion, may elect to take.
1.6. License Grant to Us. By using the Service in conjunction with creating, submitting, posting, promoting, or displaying content, you grant us a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any content, including but not limited to text, materials, images, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data, or otherwise, that you submit or post on or through the Service for our current and future business purposes, including to provide, promote, and improve the Service.
1.7. Denial of Access. SME reserves the right to terminate your access to and use of the Service, in whole or in part, at any time, with or without notice, at SME’s discretion for any or no reason. SME reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in our sole discretion.
1.8. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant SME an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
To login to your User Account, you must use your email address and password. SME may establish and require from time to time additional or different means of identification and authentication for logging in and accessing your User Account, or for accessing certain content on the Service.
You agree to maintain your login details in absolute confidentiality and refrain from disclosing them to others. You are fully responsible, and SME will not be held liable, for any outcome that may result from your failure to provide true, accurate and complete details in the course of the registration process, and for any use or misuse of your account on the Service as a result of you compromising your login or User Account details, conveying them to someone else, or not keeping them secure and confidential. For our compliance purposes and in order to provide the Services to you, you hereby authorize us (or any of our third-party service providers) to obtain, verify, and record information and documentation that helps us verify your identity and Third-Party Account details.
2.3. Communication Preferences. By creating a User Account or otherwise providing us with contact methods through the use of the Service, you consent to receive electronic communications from us (e.g., via email, push notification, text messages, or other types of messages). These communications may include notices about your User Account (e.g., transactional information) and are part of your relationship with us. We may also send you promotional communications via email we think will be of interest to you. You understand that you are not required to provide this consent as a condition of using the Service and you may opt out of these communications through the Service or through your mobile device’s operating system (with the possible exception of important service announcements and administrative messages) by following the unsubscribe instructions.
2.4. Payments. When you register for a User Account to access and use the Service, or after the expiration of a promotional offer for a free trial period where applicable, you will be charged a subscription fee of $74.99 for one year’s use of the Service. SME offers a grace period whereby if you are not satisfied with the Service, you may request a refund within thirty (30) days of purchasing a subscription. Other than requested refunds within the grace period, the subscription fee is non-refundable. More details regarding subscriptions to the Service can be found here.
SME is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by SME’s payment processor. You agree that you will not initiate any chargebacks to SME unless otherwise authorized by SME in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against SME.
2.5. Taxes. You are solely responsible for assessing all Taxes owed, if any, for your use of the Service. As used herein, “Taxes” means the taxes, duties, levies, tariffs, and other governmental charges that you may be required to collect and remit to governmental agencies, and other similar municipal, state, federal, national or other withholding and personal or corporate income taxes.
2.6. Termination. If you breach any of the provisions of these Terms, all licenses granted by SME will terminate automatically. Additionally, notwithstanding anything contained in these Terms, we reserve the right, with or without notice and in our sole discretion, to suspend, disable, terminate, or delete your User Account and/or your ability to access or use the Service (or any part of the foregoing) at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us.
2.7. Third-Party Content and Services. Through your use of the Service, you may explore content created by third parties. SME does not make any representations or warranties about this third-party content visible through our Service, including any content associated with the Service, and you bear responsibility for verifying the legitimacy, authenticity, and legality of any third parties and their content.
2.8. Third Party Websites. The Service may also contain links or functionality to access or use third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”), or otherwise display, include, or make available content, data, information, services, applications, or materials from third parties (“Third-Party Materials”). When you click on a link to, or access and use, a Third-Party Website or Third-Party Application, though we may not warn you that you have left our Service, you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications, and Third-Party Materials are not under the control of SME, and may be “open” applications for which no recourse is possible. SME is not responsible or liable for any Third-Party Websites, Third-Party Applications, and Third-Party Materials. SME provides links to these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or their products or services or associated Third-Party Materials. You use all links in Third-Party Websites, Third-Party Applications, and Third-Party Materials at your own risk.
3.1. Age of Majority. All users must be at least 18 years old. If you are at least 13 years old but under 18 years old, you may only use the Service through a parent or guardian’s User Account and with their approval and oversight. That account holder is responsible for your actions using the User Account. It is prohibited to use our Service if you are under 13 years old.
3.2. Compliance; Embargoed and Sanctioned Jurisdictions. You represent and warrant that you will comply with all applicable laws, including without limitation all local, state, federal and other laws, when using the Service. You further agree that you will not violate any contract, intellectual property or other third-party right, and that you are solely responsible for your conduct and content, while accessing or using the Service.
In addition, this means, without limiting the generality of the foregoing, that by using the Service, you represent and warrant that: (a) you are not located in, ordinarily resident in, or organized under the laws of any jurisdiction that is subject to a comprehensive U.S. Government embargo (“Embargoed Jurisdiction“); (b) you are not subject to any sanctions administered by an agency of the U.S. Government, any other government, or the United Nations (collectively, “Sanctions”); (c) you are not owned or controlled, directly or indirectly, by any person that is subject to Sanctions, or that is located in, ordinarily resident in, or organized under the laws of, any Embargoed Jurisdiction; (d) none of your officers, managers, directors, shareholders or authorized representatives is subject to Sanctions, or is located in, ordinarily resident in, or organized under the laws of, any Embargoed Jurisdiction, or is owned or controlled, directly or indirectly, by any person that is subject to Sanctions or that is located in, ordinarily resident in, or organized under the laws of, any Embargoed Jurisdiction. You further covenant that the foregoing shall be true during the entire period of this agreement. If you access or use the Service outside the United States, you are solely responsible for ensuring that your access and use of the Service in such country, territory or jurisdiction does not violate any applicable laws.
3.3. Cooperation. SME may require you to provide additional information and documents in certain circumstances, such as at the request of any government authority, as any applicable law or regulation dictates, or to investigate a potential violation of these Terms. In such cases, we, in our sole discretion, may disable your User Account and block your ability to access the Service until such additional information and documents are processed by us. If you do not provide complete and accurate information in response to such a request, we may refuse to restore your access to the Service.
3.4. User Code of Conduct. In addition to all other terms or conditions contained in these Terms, you will not under any circumstances:
(i)Use or attempt to use another user’s Account without authorization from such user;pose as another person or entity;
(ii) Claim a username for the purpose of reselling it, confusing others, deriving others’ goodwill, or otherwise engage in name squatting;
(iii) Create or display assets or other items that promote suicide or self-harm, incites hate or violence against others, or doxes another individual;
(iv) Distribute spam, including through sending unwanted communications or assets to other users;
(v) Use the Service in any manner whatsoever if such use, in SME’s sole discretion, could damage, disable, overburden, or impair the functioning of the Service in any manner;
(vi) Bypass or ignore instructions that control access to the Service, including attempting to circumvent any systems of the Service through use of multiple API keys, directing traffic through multiple IP addresses, or otherwise obfuscating the source of traffic you send to SME;
(vii) Use our Service for commercial purposes inconsistent with these Terms or any other instructions;
(viii) Use any data mining, robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Service, extract data, or otherwise interfere with or modify the rendering of Service pages or functionality;
(ix) Reverse engineer, duplicate, decompile, disassemble, or decode any aspect of the Service, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Service;
(x) Sell or resell the Service or attempt to circumvent any of our fee systems;
(xi) Engage in behaviors that have the intention or the effect of artificially causing an item or collection to appear at the top of search results, or artificially increasing view counts, favorites, or other metrics that we might use to sort search results;
(xii) Use the Service or data collected from our Service for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing);
(xiii) Use the Service for or in connection with money laundering, terrorist financing, or other illicit financial activity, or in any way in connection with the violation of any law or regulation that applies to you or to SME;
(xiv) Use the Service, directly or indirectly, for, on behalf of, or for the benefit of, (a) any natural or legal person that is the subject of Sanctions; (b) any natural or legal person located in, ordinarily resident in, or organized under the laws of, any Embargoed Jurisdiction; or (c) any legal person owned or controlled, directly or indirectly, by any natural or legal person located in, ordinarily resident in, or organized under the laws of, any Embargoed Jurisdiction.
(xv) Use the Service to carry out any financial activities subject to registration or licensing, including but not limited to creating, offering, selling, or buying securities, commodities, options, or debt instruments, including without limitation the use of the Service to give owners rights to participate in an ICO or any securities offering, or that are redeemable for securities, commodities, or other financial instruments;
(xvi) Use the Service to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
(xvii) Use the Service to buy, sell, or transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;
(xviii) Infringe or violate the intellectual property rights or any other rights of others;
(xix) Create or display illegal content, such as content that may involve child sexual exploitation;
(xx) Use the Service for any illegal or unauthorized purpose, including creating or displaying illegal content, or encouraging or promoting any activity that violates the Terms of Service;
(xxi) Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service.
3.5. Rights, Title and Authority. In addition to and in conjunction with the license grants you make to us under this Agreement, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any content that you create, submit, post, promote, or display on or through the Service. You represent and warrant that such content does not contain material subject to copyright, trademark, publicity rights, or other intellectual property rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant us the license described below, and that the content does not violate any laws.
3.8. Non-Reliance. You acknowledge and agree that you have conducted your own thorough independent investigation and analysis of the Service and the other matters contemplated by these Terms, and have not relied up-on any information, statement, omission, representation, or warranty, express or implied, written or oral, made by or on behalf of SME in connection therewith, except as expressly set forth by us in these Terms.
SECTION 5: INDEMNIFICATION
5.1. Indemnification By agreeing to these Terms and accessing the Service, you agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless SME, and our respective past, present, and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors, and assigns (individually and collectively, the “SME Parties”), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, taxes, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses), and costs (including, without limitation, court costs, costs of settlement, and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract, or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of, or are related to (a) your use or misuse of the Service, content, or content linked to or associated with any Third-Party Accounts, (b) your violation or breach of any term of these Terms or applicable law, and (c) your violation of the rights of or obligations to a third party, including another user or third-party, and (d) your negligence or willful misconduct. You agree to promptly notify SME of any Claims and cooperate with the SME Parties in defending such Claims. You further agree that the SME Parties shall have control of the defense or settlement of any Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND SME.
SECTION 6: DISCLAIMERS
6.1. USE OF SERVICE IS AT YOUR OWN RISK. YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SME EXPRESSLY DISCLAIMS WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. SME MAKES NO WARRANTY OR REPRESENTATION AND DISCLAIMS ALL RESPONSIBILITY FOR WHETHER THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. SME DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SME WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE SME ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE SAFE AND SECURE, SME CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, CONTENT LINKED TO OR ASSOCIATED WITH ANY THIRD-PARTY ACCOUNTS, OR OUR SERVICE PROVIDERS’ SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM THE SME PARTIES OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD SME RESPONSIBLE FOR ANY BREACH OF SECURITY.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (A) USER ERROR, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) UNAUTHORIZED ACCESS OR USE; (D) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE.
NO SME PARTY IS RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE OR ABNORMAL BEHAVIOR OF SOFTWARE BY OR RELATING TO THIRD-PARTY ACCOUNTS.
Some jurisdictions do not allow the exclusion of implied warranties in contracts with consumers, so the above exclusion may not apply to you.
6.2. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL SME OR ITS SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OR THE SERVICE, PRODUCTS OR THIRD-PARTY SITES, ACCOUNTS, AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF SME OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF THE DELIVERY, USE, OR PERFORMANCE OF THE SERVICE. ACCESS TO, AND USE OF, THE SERVICE, PRODUCTS OR THIRD-PARTY SITES, ACCOUNTS, AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF SME ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SERVICE OR ANY SME PRODUCTS OR SERVICES EXCEED THE LESSER OF (A) US $500.00 OR (B) THE AMOUNT RECEIVED BY SME FOR ITS SERVICE DIRECTLY RELATING TO THE ITEMS THAT ARE THE SUBJECT OF THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
SECTION 7: MODIFICATION OF TERMS
7.1. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that we may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should terminate your User Account and discontinue your use of the Service. Except as expressly permitted in this Section, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. It is your sole responsibility to review the Terms and understand modifications to these Terms as they may be updated from time to time.
SECTION 8: DISPUTE RESOLUTION
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SME ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
8.1. Dispute Resolution and Arbitration Agreement. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. Disputes shall be resolved in accordance with the applicable provisions of the American Arbitration Association (“AAA”). It requires you to arbitrate disputes with SME and limits the manner in which you can seek relief from us. This section does not govern disputes between users or between users and third parties. SME does not provide dispute resolution services for such disagreements and the parties must resolve those disputes directly. You agree that any dispute, controversy, or claim relating in any way to your access or use of the Service, to any products sold or distributed through the Service, or to any aspect of your relationship with SME, will be resolved by binding arbitration, rather than in court, including threshold questions of the arbitrability of such dispute, controversy, or claim except that (1) you or SME may assert claims in small claims court, but only if the claims qualify, the claims remain only in such court, and the claims remain on an individual, non-representative, and non-class basis; and (2) you or SME may seek injunctive or equitable relief in a court of proper jurisdiction if the claim relates to intellectual property infringement or other misuse of intellectual property rights.
8.2. Dispute resolution process. You and SME both agree to engage in good-faith efforts to resolve disputes prior to either party initiating an arbitration, small claims court proceeding, or equitable relief for intellectual property infringement. You must initiate this dispute resolution process by sending a letter describing the nature of your claim and desired resolution to:
NOTICES FOR ARBITRATION
The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or SME may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or SME must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by SME in settlement of the dispute prior to the award, SME will pay to you the lower of: (a) the amount awarded by the arbitrator or (b) US $1,000.00.
Notices for Arbitration must be sent to:
548 Market Street, Suite 57601
San Francisco, CA 94104
8.3. Fees. Payment of any fees will be decided by the rules of the AAA. Any arbitration hearing will take place at a location to be agreed upon in the county and state of your residence or billing address, but if the claim is for US $1,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a nonappearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence or billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse SME for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
8.4. Waiver of Jury Trial. YOU AND SME HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.
8.5. Waiver of Class Actions and Class Arbitrations. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A REPRESENTATIVE OR COLLECTIVE CLASS BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER, PERSON, OR ENTITY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER, PERSON, OR ENTITY.
SECTION 9: MISCELLANEOUS
9.1. Governing Law and Venue. These Terms and your access to and use of the Service shall be governed by and construed and enforced in accordance with the laws of the State of Nevada (without regard to conflict of law rules or principles of the State of Nevada, or any other jurisdiction that would cause the application of the laws of any other jurisdiction). Any dispute between the parties that is not subject to arbitration as set forth in Section 8 or cannot be heard in small claims court, shall be resolved in the state or federal courts of in the State of Nevada.
9.2. Severability. If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause, or provision of these Terms.
9.3. Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to SME for which monetary damages would not be an adequate remedy and SME shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
9.4. California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
9.5. Survival. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by SME or you. Termination will not limit any of SME’s other rights or remedies at law or in equity.
9.6. General Terms. These Terms constitute the entire agreement between you and SME relating to your access to and use of the Service. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of SME, and SME’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect.
The Service is operated by us in the United States. Those who choose to access the Service from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. You and SME agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.