FUNDAMENTAL ANALYTICS END USER LICENSE AGREEMENT
BEFORE GOING FURTHER YOU (“YOU” OR “CUSTOMER”) MUST AGREE TO THE TERMS OF THIS END USER LICENSE (“EULA” OR “AGREEMENT”) AND, IF APPLICABLE, PROPRIETARY SOURCE AGREEMENTS GOVERNING RECEIPT OF PROPRIETARY DATA. BY CLICKING THE ACCEPT BUTTON, OR PHYSICALLY SIGNING THIS DOCUMENT, OR ACCESSING THE WEB BASED SOFTWARE AND/OR DATA BY, OR IN PARTNERSHIP WITH, FUNDAMENTAL ANALYTICS, LLC) AND ITS SUBSIDIARIES (COLLECTIVELY “FA”), YOU REPRESENT YOU UNDERSTAND THESE FA AGREEMENTS AND YOU AGREE TO AND CONSENT TO BE BOUND BY ALL TERMS OF THESE FA AGREEMENTS. YOU ALSO AGREE THAT YOU CONSENT TO THIS TRANSACTION BEING CONDUCTED BY ELECTRONIC MEANS. BY CLICKING THE ACCEPT BUTTON OR BY SIGNING THIS DOCUMENT OR BY USING THE FA PLATFORM, YOU REPRESENT YOU HAVE THE AUTHORITY TO ENTER INTO THESE FA AGREEMENTS. FA ALLOWS USE OF THE SERVICES IN CONSIDERATION OF YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT AGREE TO ALL TERMS OF THESE FA AGREEMENTS, FA WILL RESTRICT ACCESS TO THE SERVICES (AS DEFINED BELOW).
1. Services. This Agreement is made by and between FA and You, and, if applicable, the company You represent (collectively “You” or “Customer”). FA will provide the Services to Customer pursuant to the Agreements. “Services” means collecting and storing data and displaying the stored data (collectively “Data”) via the FA platform. This Data is collected from information sources (“Sources”) including Sources supplied by FA and Sources specified or supplied by the customer and agreed to by FA. Services may also allow customer to download certain Data and retain such Data for their use. Customer will pay FA for use of the Services pursuant to the agreed upon fee schedule between the parties, or, if no such specific agreement exists at FA’s standard rates for use of the Services.
2. Right to Use.
a. This Agreement grants Customer a nonexclusive, nontransferable, nonsublicensable right to use the Services for the term of this EULA, only for the number of concurrent users permitted under the Services subscribed to by Customer. Customer agrees not to transfer, provide, sell, or convey the Licensed Programs to any party who is not designated as an authorized user under this Agreement. Except for Data provided to FA by Customer, Customer agrees that the Data items accessed, extracted or downloaded through use of the software are owned by and/or subject to licensing by FA. Except for Data supplied by the Customer, this Data is provided for customer’s own use. Except for data supplied by the Customer, the Customer agrees not to export raw Data to any third party for such party’s use, or redistribute, license or sell the raw data without the prior written consent of FA. Customer is prohibited from attempting to intercept Data for the purpose of viewing, saving, transferring Data using a method other than the FA platform. Customer’s rights to access the Services will cease upon termination of this EULA unless otherwise agreed in writing.
b. Should Customer subscribe to a proprietary source of Data that is displayed via the FA website through an agreement with that Data provider, the Customer must ensure they follow the terms and conditions required by that Data provider. Nothing in the terms and conditions of the proprietary source of Data will be interpreted to allow Customer to break requirements in the FA License Agreement.
3. Assignment. Customer may not assign, sublicense, sell, lease, transfer, distribute or otherwise make available to any third party any or all the Licensed Programs and/or Data without the prior express written approval of FA. Any nonapproved assignment, sublicense or delegation shall be wholly void and totally ineffective for all purposes and shall be cause for termination.
4. Proprietary Information.
a. Definition. “Proprietary Information” means software programs, protocols, menus and menu listings, display designs, databases, manuals and supporting documentation.
b. Protection. Customer acknowledges the Proprietary Information is proprietary and unique to FA, as to which trademark, copyright, patent, or other intellectual property or proprietary rights may be held by or granted to FA. Customer will comply with all applicable laws necessary to protect all rights in the Proprietary Information, and will not remove or conceal any copyright, trademark, or other proprietary notice or marking included in the Services. Customer will return all copies of the Proprietary Information to FA upon termination of this Agreement or certify that they have been rendered permanently unusable.
5. Personal Information.
a. Definition. FA may collect personally identifiable information (“Personal Information”) in order to effectively provide the Services and to identify or contact a particular person. This information may include name, address, email, and phone number. It may also include billing and credit card payment information.
b. Collection. FA collects Personal Information to: (i) authenticate and verify authorized use of the Services provided; and (ii) facilitate provision of the Services. Personal Information may also be collected and used for internal analytic purposes and/or marketing communications from FA.
c. Sharing. FA does not disseminate to or share Personal Information with third parties for direct marketing activities. FA may share Personal Information with contractors, service providers, and other third parties FA uses to support its business. Statistical or general outcomes analytics may be shared with third parties, but they are shared in such a way that Personal Information is not disclosed, unless consent for the same is provided by Customer. If a Customer provides Personal Information, the Personal Information may be transferred to any FA facility, including facilities in the United States.
d. Retention. Personal Information may be retained by FA until the provision of Services is terminated.
e. Acknowledgement. Customer acknowledges FA’s policy regarding the collection, use, and transfer of Personal Information and accepts FA’s collection and processing of Personal Information. For questions about FA’s policy, please see https://www.fundamentalanalytics.com/privacy-policy/ or send an email to [email protected].
6. Warranties, Disclaimers and Limits of Liability.
a. Accompanying Data. FA attempts to use reasonable care in the preparation of its programs and data, but neither FA nor any data supplier warrants, represents or guarantees the accuracy or timeliness thereof, and neither FA nor the data supplier shall be liable to Customer for any inaccuracy in or untimeliness of the information contained therein. Neither FA nor data supplier shall be liable to Customer for damages, whether direct or indirect, ordinary, special, incidental or consequential, nor for loss of profits, arising out of or in connection with any use of any databases or data provided pursuant to, or otherwise in connection with, this Agreement.
b. Warranty. FA represents and warrants to Customer that: (i) it has all rights in and to all copyrights, patents, trademarks and other intellectual property rights that are necessary to market, distribute and license the licensed Information to Customer and grant to Customer the privileges herein granted, pursuant to the terms of this Agreement; and (ii) the licensed information is not defamatory and does not violate a third party’s intellectual property rights or right of privacy. Further, FA warrants that the licensed programs shall be free of material defects and conform to current FA specifications for a period of 30 days from the date of delivery to Customer. FA’ sole obligation, and Customer’s sole remedy, with respect to claims of defect (other than claims of breach of the warranty of non-infringement) shall be for FA to exert its best efforts to correct such defects and to supply Customer with a corrected version within a reasonable time after Customer notifies FA in writing of any defect. This warranty shall cover any such modifications, changes or alterations. Except for claims of breach of the warranty of non-infringement, Customer agrees that FA liability for damages including but not limited to contract, negligence, strict liability in tort, warranty or patent or copy right infringement, shall not exceed any amounts paid by Customer for the licensed programs involved.
c. Limitation of Liability. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY HEREBY EXPRESSLY WAIVES ANY AND ALL DRAFTS, CLAIMS, DAMAGES, ACTION AND CAUSES OF ACTIONS FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR COMPENSATORY DAMAGES. FA neither assumes nor authorizes Customer or any other person to assume for FA any other warranty. In no event shall FA be liable to Customer or others for any lost profits, incidental special or consequential damages including damages due to delay in delivery or installation of the Licensed Programs, or due to errors or untimeliness of data in databases, even if FA has been informed of the possibilities for said damages. Except for claims related to breach of the warranty of noninfringement, FA’ liability shall be limited to the sums received by FA for Customer pursuant to this Agreement.
7. Indemnification.
a. By Customer. Customer will defend, indemnify and hold harmless FA and the Data Suppliers, and their directors, employees, representatives, agents and contractors from and against any claim, loss, liability, cost or damage, including reasonable attorney’s fees, arising from (i) Customer’s breach of this EULA; (ii) any third party gaining access to the Data, or receiving advice based on, the Services or through Customer’s acts or omissions.
b. By FA. FA will indemnify and hold Customer harmless from and against any claim of infringement of a patent, copyright or any other intellectual property right in effect on or before the effective date of this EULA based upon use of the Proprietary Information which is not a Customer breach of this EULA, provided Customer gives FA prompt notice of and the opportunity to defend any such claim and Customer cooperates in the defense thereof. FA will have the right to settle such claim, and, at FA’s option, provide Customer (i) a paid up right to use; or (ii) substitute functionally equivalent Information.
8. Miscellaneous:
a. This License Agreement embodies the entire understanding between FA and Customer relating to the granting of the license by FA to Customer to use the Licensed Programs. Any and all prior correspondence, conversations or memoranda are hereby merged herein and replaced hereby and are without effect heron. This License Agreement shall not be modified, or amended, or in any way varied or changed except by a writing duly executed by each of these parties hereto.
b. No waiver of any portion of the Agreement shall be effective unless made in writing. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision of this Agreement.
c. Severability and Interpretation. If any provision of this EULA is held to be invalid or unenforceable, the invalidity or unenforceability of the remaining provisions shall not be affected.
9. Choice of Law: This Agreement shall be interpreted in accordance with the law of the Commonwealth of Kentucky, without giving effect to the conflicts of law principles thereof. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remainder of this Agreement shall not be affected thereby and shall nevertheless be binding with the same effect as if the invalid, illegal or unenforceable parts were originally deleted.
10. Term. This EULA shall be effective as of the earlier of the date Customer first has access to the Services or the date this Agreement is accepted by Customer. In the event the Customer is involved in a Free Trial this Agreement terminates the day after the end of a “Free Trial” unless the Free Trial results in the Customer choosing to subscribe to FA. This EULA terminates 30 days after end of a Customer subscription should the subscription not be extended. Unless terminated earlier in accordance with this Agreement, either party may terminate this Agreement by giving the other party at least 30 days’ advance written notice of the termination of this Agreement or such term agreed between Customer (or on Customer’s behalf) and FA in writing and signed by both parties. Access to the Services will no longer be allowed after this Agreement is terminated.
11. Termination: In the event Customer shall continue to fail to keep, observe, or perform any covenant or condition set forth herein 30 days after receipt of written notice thereof, or if Customer shall cease to function as a going concern, FA may, at its option terminate this Agreement on 7 days written notice to Customer. Upon termination, all rights and obligations of the parties shall cease, except that Customer shall not be relieved of: (1) its obligation to pay any money due, or to become due, as of or after the date of termination; (2) the obligations of confidentiality and non-disclosure, and (3) any other obligations set forth in this Agreement which are to continue or take effect after the date of termination. Furthermore, termination is without prejudice to the enforcement of any undischarged obligations existing at the date of termination. Customer’s obligations to protect Licensor’s proprietary information shall survive after the date of termination for a period of five years following the date of termination.
12. Scheduled Downtime: FA will make reasonable efforts to (a) schedule downtime for routine maintenance of the Licensed Programs within a period of 24 hours on the weekend, with the understanding that maintenance may exceed these hours; and (b) provide Customer at least 48 hours prior notice of all scheduled outages of the Licensed Programs. FA is not liable for downtime due to external service provider outages and associated issues.
9/10/2019