Last Updated March 31, 2014
YOU REPRESENT AND WARRANT TO US THAT (A) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) YOU ARE AT LEAST 13 YEARS OF AGE; AND (C) YOU ARE OF SUFFICIENT LEGAL AGE OR OTHERWISE HAVE LEGAL CAPACITY TO LEGALLY ENTER INTO THIS AGREEMENT.
IF YOU ("YOU") ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT COMPANY OR LEGAL ENTITY TO THIS AGREEMENT, AND ALL REFERENCES TO YOU WILL BE DEEMED TO INCLUDE SUCH COMPANY OR ENTITY.
WARNING: THE SERVICE PROVIDED PURSUANT TO THIS AGREEMENT IS PROTECTED BY COPYRIGHT LAW AND INTERNATIONAL TREATIES. UNAUTHORIZED REPRODUCTION, DISTRIBUTION OR USE OF THE SERVICE OR DOCUMENTATION, OR ANY PORTION OF IT, MAY RESULT IN SEVERE CIVIL AND CRIMINAL PENALTIES, AND WILL BE PROSECUTED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
In order to participate in or receive certain portions of the Service, you may be required to create an account with us, either now or in the future (an "Account"). If you are required to create an Account, your Account will be for your individual, personal and non-commercial use only, and you may not authorize others to use your Account for any purpose. In creating your Account, you certify that all information you provide will be complete and accurate. You agree to update your information when required or requested, and you further agree not to use another person's account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, your Account and password, and all activities that occur under your Account or password.
4. Email Notices.
By providing us your email address, you consent to our using your email address to send you Service-related notices, in lieu of communication by postal mail or other methods, except where we are expressly required by applicable law to provide other notice. We may also use your email address to send you other messages, such as changes to features of the Service, new applications and special offers. If you do not want to receive these email messages, you may opt out by notifying us at [email protected]. Opting out may prevent you from receiving email messages regarding Service updates, improvements or offers.
5. Our Proprietary Rights; License Grant.
We and our licensors retain exclusive ownership of the Service and Website and all content and materials provided in connection with the Service and Website, and all related intellectual property rights. We retain exclusive ownership of any data that is collected by us or our business partners through the operation of the Service or Website, but excluding your personal information.
Subject to your full compliance with this Agreement, we hereby grant you a limited, non-exclusive, revocable, personal and non-transferable license to access and use the Service in legally authorized jurisdictions for your personal, non-commercial use on any personal computer or supported device you own or control. We reserve all right, title and interest in and to the Service and Website, subject only to the limited license granted to you above. In addition, we reserve the right to terminate this license at any time.
YOU AGREE THAT YOU WILL NOT USE THE SERVICE, OR ANY INFORMATION, DATA OR MATERIALS PROVIDED IN CONNECTION WITH THE SERVICE, TO CREATE A MODEL PORTFOLIO OR ANY INDEX TO BE USED AS TRADABLE INSTRUMENT IN THE NATURE OF A SECURITY.
6. User Guidelines and Restrictions; Prohibited Content.
You agree that you will not in connection with your use of the Service or Website:
- Abuse or harass any other user, member or person;
- Collect or store personally identifying information about other users for commercial or unlawful purposes;
- Impersonate any person or entity;
- Employ misleading email addresses or mobile numbers or falsify information in any part of any communication related to the Service or Website;
- Engage in any activity which may compromise the stability or availability of the Service or Website or use the Service or Website to compromise the availability or stability of any third party site or service;
- Use the Service or Website for any unsolicited advertising or promotions;
- Use automated means, including spiders, robots, crawlers or the like to download data from the Service or Website or any related server or database;
- Decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works of or sublicense the Service or Website, or any portion thereof;
- Circumvent any security measures or any payment collection methods employed on or through the Service or Website, or access or use the Service or Website after your Account, this Agreement or your access has been terminated or suspended by us;
- Upload, post, email, otherwise transmit or post links to any content or material, or select any member or user name or email address, in a manner that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful, or racially, sexually, ethnically or otherwise objectionable;
- Upload, post, email, otherwise transmit or post links to any content or material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any person, or that contributes to, induces or facilitates this type of infringement;
- Upload, post, email, otherwise transmit or post links to any content or material that contains software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Website, Service or any third party software, site, equipment or service;
- Upload, post, email, otherwise transmit or post links to any content or material that violates any applicable law, statute, ordinance or regulation, or which we deem improper in accordance with our guidelines and policies;
- By-pass the measures we may use to prevent or restrict access to the Service, including but not limited to, features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; or
- Rent, lease or sublicense the Service or Website.
7. User Content.
- Submission of User Content. Some areas of the Service may allow you and other users to post written, audio and visual content, comments, questions and other information ("User Content"). You acknowledge and agree that your communications with other users or members via chats, conferences, bulletin boards, blogs, posts and any other publicly accessible avenues of communication through the Service or Website are public and not private communications. Therefore, we strongly encourage you to use caution before disclosing any personal information about yourself in your public communications. You are solely responsible for the User Content that you upload, publish, display, link to or otherwise make available (hereinafter, "post") on or through the Service. You understand and agree that all User Content publicly posted or privately transmitted through the Service is the sole responsibility of the person from whom such content originated and that we will not be liable for any errors or omissions in any such content. You further understand and agree that we cannot guarantee the identity of any other users with whom you may interact in the course of using the Service or the data that any such user may provide about themselves.
- Objectionable Content. WE DO NOT TOLERATE THE UPLOADING, POSTING, EMAILING OR TRANMISSION OF USER CONTENT THAT VIOLATES THIS AGREEMENT OR THAT IS UNLAWFUL, HARMFUL, THREATENING, ABUSIVE, HARASSING, TORTIOUS, DEFAMATORY, VULGAR, OBSCENE, PORNOGRAPHIC, LIBELOUS, INVASIVE OF PRIVACY OR PUBLICITY RIGHTS, HATEFUL, OR RACIALLY, SEXUALLY, ETHNICALLY OR OTHERWISE OBJECTIONABLE. We reserve the right to refuse to transmit or post, and to disclose, block or remove any content or materials, including but not limited to, User Content, in whole or in part, that we in our discretion deem to be in violation of this Agreement, our policies and procedures, or otherwise harmful to persons using the Service or Website, regardless of whether the material or its dissemination is unlawful. In addition, we may also take reasonable steps, including but not limited to, limiting or filtering the number of emails, chat messages or posts sent or received by a user or member.
- Your Representations and Warranties about Your User Content. By posting User Content on or through the Service, you represent and warrant that:
- None of us, our customers, licensees or business partners shall be required to make any payments with respect to your User Content, including but not limited to, payments to you, third parties, music publishers, mechanical rights agents, performance rights societies, union guilds or your licensors or any persons who contributed to or appear in your User Content;
- You have full right, power and authority to post your User Content and have secured all third-party consents, licenses and permissions necessary to post your User Content and grant to us the rights and licenses described below; and
- Your User Content (A) is not defamatory; (B) does not infringe upon, misappropriate or violate the rights of any third party, including but not limited to, any intellectual property rights, rights of publicity or any other privacy or proprietary rights; and (C) does not violate any law, rule, regulation or ordinance.
- Rights in User Content. By uploading, making available or submitting User Content, you grant us and our business partners and affiliates a royalty-free, perpetual, irrevocable, world-wide, assignable and transferable right and license to quote, re-post, use, copy, reproduce, modify, create derivative works of, incorporate into other works, distribute, transmit, broadcast, communicate, publicly display, publicly perform and otherwise exploit your User Content in any form or media now known or hereafter created, anywhere, and without any notice or compensation to you of any kind. In addition, you grant each user of the Service a non-exclusive license to use, modify, reproduce, distribute, prepare derivative works of, display and perform any User Content as allowed by the functionality of the Service. You hereby grant us and other users of the Service all consents, rights and clearances to enable us to use your User Content for these purposes. Without limiting the foregoing, we may:
- Host your User Content on our servers and those of our third party service providers that we have engaged to host the Service and Website and display your User Content, in whole or in part, alone or in compilation with content provided by third parties, to other users of the Service or Website;
- Re-encode your User Content as needed to be compatible with different mobile phones which may degrade the sound quality of your music and/or video files;
- Edit, remove and/or delete your User Content to ensure that it complies with our policies and guidelines; and
- Use any trademarks, service marks or trade names incorporated into your User Content and the likeness of any individual whose performance or image is contained in your User Content.
8. Third Party Links; Reliance on Third Party Content.
Opinions, advice, statements, offers or other information or User Content made available through the Service by other members or users are those of their respective authors, and should not necessarily be relied upon. These members and users are solely responsible for their content.
9. Advertising and Use of Computational Resources.
As consideration for the limited license and rights granted to you under this Agreement, you agree that (a) we and our business partners shall have the right to provide ads, promotions, offers and other information to you by email or other means of communication; and (b) we may allow the Service to utilize the processor, bandwidth and storage hardware on your device for the purposes of facilitating (i) the communication and transmission of content and other data or features to you and other users of the Service; and (ii) the operation of the network(s) on which the Service runs. You may opt out of receiving promotional messages from us and our business partners at any time by following the process specified in the message.
10. Your Interaction with Other Members.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS AND MEMBERS OF THE SERVICE AND WEBSITE. YOU UNDERSTAND AND AGREE THAT WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO SCREEN OUR USERS OR MEMBERS; INQUIRE INTO THE BACKGROUNDS OF OUR USERS OR MEMBERS; OR ATTEMPT TO VERIFY THE STATEMENTS OF OUR USERS OR MEMBERS. PLEASE ALSO USE CAUTION, COMMON SENSE AND SAFETY WHEN USING THE SERVICE TO INTERACT WITH OTHER USERS AND MEMBERS. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS OR MEMBERS OR TO TERMINATE OR BLOCK YOU AND OTHER USERS OR MEMBERS FOR VIOLATIONS OF THIS AGREEMENT.
In the event that you have a dispute with one or more other users or members, you hereby release us, our parent, subsidiaries and affiliated entities, and ours and their shareholders, directors, officers, employees, agents, successors and assigns from any and all claims, demands, damages (actual and consequential), losses and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to these disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
We reserve the right without liability to terminate or restrict this Agreement or your Account, or your access to or use of the Service or Website, with or without notice, for any reason, including but not limited to, if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. You agree that we shall not be liable to you or any third-party for any interference with or termination of your access to the Service or Website. All decisions regarding the termination of this Agreement or your Account shall be made by us in our discretion. We are not required, and may be prohibited, from disclosing to you the reason for termination of this Agreement or your Account. Upon termination of this Agreement for any reason, those provisions which, by their nature survive termination (including, but not limited to, Sections 3, 4, 7(d), 11, 12, and 14 through 25 shall survive termination in accordance with their respective terms.
13. Customer Service.
If you have questions about your Account or the Service please contact [email protected] We will use commercially reasonable efforts to keep your Account and the Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Service and Website with or without notice. We shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to the Service or Website. Please note that use of any mobile Application provided in connection with the Service may only be used on supported mobile phones or devices and requires your use of the latest version of the applicable mobile application. You are responsible for any third party devices, hardware or software that are required to use the Service.
14. Disclaimer of Warranties.
WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE CONDUCT OF USERS OR MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OR MEMBERS. WE DO NOT (A) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION MADE AVAILABLE THROUGH THE SERVICE BY MEMBERS OR USERS OF THE SERVICE; OR (B) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY MEMBERS OR USERS THAT APPEARS THROUGH THE SERVICE.
WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIM, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY VIRTUAL PROPERTY OR DATA RESIDING ON OUR SERVERS.
15. Limitation of Liability; Your Indemnification Obligation.
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS ARISING OUT OF YOUR USE, OR INABILITY TO USE, THE SERVICE OR WEBSITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES. UNDER NO CIRCUMSTANCES SHALL OUR LIABILITY TO YOU FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT OF $500. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree to indemnify and hold us, our parent, subsidiaries and affiliates, and ours and their equity holders, directors, officers, employees, agents, contractors, licensors and licensees harmless from any loss, liability, claim, demand or expense, including but not limited to, reasonable attorney's fees, made by any third party due to or arising out of your use of the Service or Website, or any breach or violation of this Agreement.
17. Legal Compliance; Governing Law.
You understand that the Service is being provided from the United States. You represent and warrant that (a) you are not located in, and are not accessing the Service from, a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting country"; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
This Agreement shall be construed in accordance with the laws of the State of New York, conflict of laws principles excluded. If either we or you employ any attorneys to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
18. Arbitration Agreement and Waiver of Class Remedies.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
- Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Exception - Litigation of Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
- Thirty Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in this section by sending written notice of your decision to opt-out to the following address: ETF.com, Attention: Legal – Opt-out Abitration, 201 Mission Street, Suite 720, San Francisco, CA 94105, U.S.A. The notice must be sent within thirty (30) days of registering to use the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms set forth above. If you opt-out of these arbitration provisions, we also will not be bound by them. In addition, if you elect to opt-out of these arbitration provisions, we may terminate your use of the Service.
19. Force Majeure.
We shall not be held responsible or liable for any delay or failure in performance hereunder caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war, or any other cause beyond our reasonable control.
Except as explicitly stated otherwise, legal and other notices (including but not limited to notices of legal proceedings) shall be delivered to us by U.S. mail at 201 Mission Street, Suite 720, San Francisco, CA 94105, U.S.A. Attention: ETF.com Legal, or to you at the email address you provided us (a) at the time you registered; (b) through a subsequent notice of an address change; or (c) through a posting through the Service or Website. Physical notices shall be effective when received. Email notices allowed hereunder shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. In addition, we may provide notice by certified mail, postage prepaid and return receipt requested. In these situations, notice shall be deemed given when received.
No delay or failure to take action under this Agreement shall constitute any waiver by us of any provision of this Agreement.
If any provision of this Agreement is invalid or unenforceable under applicable law, it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.
This Agreement is personal to you and may not be transferred, assigned or delegated by you to any other person or entity. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
24. Entire Agreement.
This Agreement (including all terms and conditions incorporated herein by reference) constitute the complete and exclusive agreement between us and you with respect to the subject matter hereof and supersede all prior oral or written understandings, communications or agreements not specifically incorporated herein.
25. No Third Party Beneficiaries.
This Agreement is between you and ETF.com. There are no third party beneficiaries of this Agreement.