Systems and Services.
“Systems” are any of the existing and future electronic systems, APIs, websites and platforms (including without limitation batteryos.com and batteryos.com) through which Financial Machines and its affiliates make the Services available to you.
“Services” are any of the existing and future services or content offered or provided to you in electronic or other form by Financial Machines or its affiliates.
Payments. Payment obligations are non-cancelable and fees paid are non-refundable. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature (“Taxes”) and Customer shall be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer shall reimburse us for such withholding tax.
All payments by Customer shall bear interest from the date due until paid at a rate equal to the prime rate per annum effective for the date payment was due, plus four percent (4%), as quoted by the Wall Street Journal, New York edition, on the date such payment was due, or, if less, the maximum rate permitted by applicable law.
Customer Data. Financial Machines shall not own any Customer Data. Customer (for itself and all of its Authorized Users), grants Financial Machines and each of its affiliates a worldwide, non-exclusive, no-cost, limited term license to access, use, process, copy, distribute, perform, export, and display Customer Data only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address services, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its data providers and its Authorized Users as may be necessary to grant this license.
Updates. Financial Machines may in its sole discretion make unscheduled deployments of changes, updates, or enhancements to the Platform at any time, including modification of, addition or removal of functionality or features. While Financial Machines shall use reasonable efforts to notify you of such changes, it is under no obligation to do so. Any decision to purchase a Subscription should be based on the functionality or features we have made available today and not on the delivery of any future functionality or features. We are under no obligation to update the Platform, but we will not materially decrease the functionality of any Service relating to a Subscription during the term of that Subscription.
Violations. We may disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of the Contract.
Security Responsibilities. You are responsible for your use of the Platform and you must: (i) use a secure and nonobvious password to access them; (ii) treat the username, password and any other piece of information you receive as part of our security procedures as confidential and not share them with any other person; (iii) notify us immediately of any unauthorized access to or use of your username or password or any other breach of security; (iv) periodically change your password; (v) log out after each session; (vi) install the most recent security patches and updates for your web browser; and (vii) not alter, corrupt, hack, or violate any computer code affecting the security and access controls of the Platform.
Use of Data. Your access to and use of Financial Machines data (“FM Data”) is subject to the following conditions:
You are only permitted to access and use the FM Data in the form in which it is in presented on the Platform. You understand, acknowledge, and agree that use of the FM Data is at your sole risk.
You understand, acknowledge, and agree that the FM Data is provided "as is" and Financial Machines does not warrant the accuracy, completeness, non-infringement, timeliness or any other characteristic of the FM Data. All FM Data contained on the Platform should be considered as a reference only and should not be used as validation against, nor as a complement to, proprietary real time data feeds.
You acknowledge and agree that, without prior written consent from Financial Machines, its applicable affiliate, and/or an applicable third party provider, you are strictly prohibited from selling, licensing, renting, modifying, changing, manipulating, altering, printing, collecting, copying, reproducing, downloading (other than to view only where a link is provided), uploading, transmitting, disclosing, distributing, disseminating, publicly displaying, publishing, editing, adapting, creating derivative works, electronically extracting or scrubbing, compiling (including, without limitation, through framing or systematic retrieval to create collections, compilations, databases or directories) or conducting text and data mining in relation to any FM Data and other Financial Machines intellectual property. As used herein, “text and data mining” means any automated analytical technique aimed at analyzing text and data in digital form in order to generate information which includes but is not limited to patterns, trends, and correlations.
You agree not to, and have no rights to, use the FM Data to create, calculate, issue, settle, maintain, support or develop any financial instruments, indexes, products, services (including but without limitation, management services, pre- and post-trade risk management services, or valuation services) or any other derivative works without the express written consent of Financial Machines.
You agree not to analyze, reverse-engineer, or disassemble any FM Data and not to insert any code or product to manipulate the Platform content in any way that affects any user’s experience. Unless Financial Machines gives you prior written permission, use of any Web browsers (other than generally available third-party browsers), engines, software, spiders, robots, avatars, agents, tools or other devices or mechanisms to navigate, search or analyze any part of the Platform is strictly prohibited.
Termination. We or the Customer may terminate any Subscription on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. We may terminate any Subscription immediately upon notice to Customer if we reasonably believe that the Platform is being used by Customer or its Authorized Users in violation of applicable law. In the event of termination of a Subscription by us for cause, Customer shall pay any unpaid fees covering the remainder of the term of such Subscription. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
You acknowledge and agree that after thirty (30) days following termination of any Subscription, all Data associated with Services provided under such Subscription may be deleted from our Platform at our discretion.
Disclaimer of Warranties. NEITHER FINANCIAL MACHINES NOR ANY AFFILIATE OF FINANCIAL MACHINES (EACH AN “FM GROUP ENTITY”) NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, CONSULTANTS OR LICENSORS (EACH A “RELATED PARTY”) MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PLATFORM OR ANY PART THEREOF AND EACH HEREBY DISCLAIMS AND SHALL HAVE NO LIABILITY FOR ANY REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION AS TO THE MERCHANTABILITY OR QUALITY OF THE PLATFORM OR ANY PART THEREOF OR ITS FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED SERVICE OR ERROR-FREE SERVICE, OR THE SEQUENCE, TIMELINESS, ACCURACY OR COMPLETENESS OF THE PLATFORM OR ANY PART THEREOF. THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS AT YOUR SOLE RISK. YOU ACKNOWLEDGE THAT: (I) YOU MAY EXPERIENCE INTERRUPTIONS OR ERRORS IN THE PLATFORM OR YOUR ACCESS TO IT; AND (II) ALL OR ANY PART OF THE PLATFORM MAY, FROM TIME TO TIME, BE TEMPORARILY UNAVAILABLE.
Limitation of Liability and Remedies. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, IN NO CIRCUMSTANCES SHALL ANY FM GROUP ENTITY OR ANY OF THEIR RESPECTIVE RELATED PARTIES BE LIABLE FOR ANY (A) DELAY, INACCURACIES, ERRORS, OMISSIONS OR INTERRUPTION OF ANY KIND IN RELATION TO THE PLATFORM OR ANY PART THEREOF OR FOR ANY RESULTING LOSS OR DAMAGE; OR (B) LOSS OR DAMAGE ARISING FROM UNAUTHORIZED ACCESS TO OR MISUSE OF THE PLATFORM OR ANY PART THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ANY FM GROUP ENTITY OR ANY OF THEIR RESPECTIVE RELATED PARTIES HEREUNDER EXCEED THE LESSER OF: (A) THE FEES PAID TO FINANCIAL MACHINES BY LICENSEE HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) ONE THOUSAND DOLLARS ($1,000), REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. THIS LIMITATION SHALL SURVIVE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT.
Indemnification. Customer will defend Financial Machines and its affiliates (the “FM Indemnified Parties”) from and against all and any third party claims, actions, suits, proceedings and demands arising from or related to Customer’s or any of its Authorized Users’ violation of the Contract (each, a “Third Party Claim”). Customer will indemnify the FM Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs awarded against an FM Indemnified Party in connection with or as a result of, and for amounts paid by, an FM Indemnified Party under a settlement Customer approves of in connection with any such Third Party Claim. Financial Machines will provide Customer with prompt written notice of any Third Party Claim and allow Customer to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.
Notwithstanding the above, an indemnified party shall always be free to choose its own counsel if it pays the fees and costs of such counsel, and no settlement shall be entered into by an indemnifying party without the express prior written consent of the indemnified parties (such consent not to be unreasonably withheld.)
Confidentiality. Each party (“Disclosing Party”) may disclose Confidential Information to the other party (“Receiving Party”) in connection with any Subscription. Confidential Information is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all invoices, as well as non-public business, product, technology, and marketing information. Confidential Information of the Customer includes Customer Data. Confidential Information shall not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
This confidentiality provision shall survive termination of any Subscription to which such Confidential Information relates for a period of two (2) years.
You may give notice to Financial Machines by email at firstname.lastname@example.org, or certified or registered mail, return receipt requested, to Financial Machines Inc., 2810 N Church St, PMB 58562, Wilmington, DE 19802 to the attention of the General Counsel.
Survival. Sections which by their meaning should survive termination or expiry of the Contract to give effect to the intent of the parties shall do so. For the avoidance of doubt, the following Sections shall so survive: Use of Services, Customer Data, Proprietary Rights, Termination, Disclaimer of Warranties, Exclusion of Incidental, Consequential, and Certain Other Remedies, Limitation of Liability and Remedies, Indemnification, Confidentiality, Survival, Publicity and General Terms.
Publicity. Customer grants Financial Machines the right to use the Customer’s company name and logo, for marketing and/or promotional purposes. This right covers private and public communications of Financial Machines including but not limited to communications with prospective or existing customers and investors.
Support. Financial Machines will provide support to Customer via email at email@example.com.
You may not assign the Contract without the prior written consent of Financial Machines.
If any part, term, or provision of this Contract is held illegal, invalid, or unenforceable, the validity or enforceability of the remainder of the Contract shall not be affected. This Contract and your use of the Platform shall be governed by the internal laws of the State of New York, and the federal laws of the United States, without regard to conflicts of laws principles. The language of the Agreement is English and all obligations under and communications relating to the Contract shall be conducted in English.
Any controversy or claim arising out of or relating to the Contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be New York City, New York. The arbitration shall be in English and shall be governed by the laws of the State of New York.
The Parties acknowledge that a material breach relating to certain provisions of the Contract may, by its gravity or nature, cause immediate or irreparable injury to the other Party that cannot be adequately compensated for in damages. Accordingly, notwithstanding anything to the contrary in the Contract, in the event of any such material breach and in addition to all other remedies available herein, the non-breaching Party may seek injunctive relief (including a temporary restraining order, preliminary injunction, or permanent injunction) from any court of competent jurisdiction, without posting a bond or other security.
You agree that regardless of any statute or law to the contrary, any claim or cause of action brought by Customer arising out of or related to use of the Platform or the Contract must be filed within one (1) year after such claim or cause of action arose or be forever barred. With respect to an unauthorized user there are no time limitations with respect to any action brought by Financial Machines other than the applicable statute of limitations.