Installation or use of the DataZephyr™ software, (including but not limited to DataZephyr, DataZephyr-Base, DataZephyr-PRO, DataZephyr-Full Edition, the dataZoa Excel Addin, or any other version or derivative work of DataZephyr or the dataZoa Excel Addin), the dataZephyr.com web site (including but not limited to www.DataZephyr.com), any services, data, other information, documentation, and any form of marketing or advertising services or information provided to the users of any edition of dataZephyr (all of the foregoing herein collectively referred to as "DataZephyr") or any part thereof, constitutes acceptance of the terms and conditions of this agreement. The terms of this agreement may be updated by us from time to time without notice to you. You may view the most current of these terms at any time at http://www.DataZephyr.com/mb_terms.asp.
1. NOTICE. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND LEADING MARKET TECHNOLOGIES, INC ("LMT"). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING ANY COMPONENT OR ASPECT OF DataZephyr. BY OPENING THE SEALED MEDIA PACKAGE, IF ANY, DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING ANY COMPONENT OR ASPECT OF DataZephyr, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL OR USE ANY COMPONENT OR ASPECT OF DataZephyr AND PROMPTLY DELETE ALL COPIES OF THE DataZephyr SOFTWARE IN YOUR POSSESSION OR UNDER YOUR CONTROL. IN THAT CONNECTION, IF YOU HAVE ANY PHYSICAL MANIFESTATIONS OF DataZephyr, THEN PROMPTLY RETURN THE MEDIA PACKAGE AND ALL ACCOMPANYING ITEMS (INCLUDING MATERIALS AND PACKAGING), ALONG WITH PROOF OF PAYMENT IF PAYMENT WAS MADE, TO US, AT THE ADDRESS BELOW, OR OUR AUTHORIZED DEALER FOR A FULL REFUND.
2. Permitted Uses. Subject to the terms and conditions of this Agreement, you are granted the following limited nonexclusive rights to use DataZephyr:
(A) Grant of Single User License. You may use one copy of the DataZephyr software
installed on a single hard disk drive via a single terminal connected to a single computer CPU. You may not network DataZephyr or otherwise use it on any other computer CPU or terminal.
(B) Right to Copy. You may make one copy of the DataZephyr software solely for backup and archival purposes, provided that the original, whether on diskette or an
electronic original, and each copy is kept in your possession and control, and provided you reproduce our copyright notice on the copy.
3. Prohibited Uses. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of DataZephyr, use of DataZephyr or any portion thereof, or access to DataZephyr or any portion thereof. Additionally, you may not, without written permission from us:
(A) Use, copy, modify, merge, create derivative works of, or transfer copies of DataZephyr or any component of DataZephyr except as provided in this Agreement;
(B) Use any backup or archival copies of the DataZephyr software or any information included as part of DataZephyr (or allow someone else to use such copies)
for any purpose other than to replace the original copy in the event that the DataZephyr software or data is destroyed or becomes defective;
(C) Disassemble, decompile or "unlock", reverse translate, reverse engineer, or in any manner decode the DataZephyr software or any aspect of DataZephyr for any reason,
except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(D) Copy the documentation or other written materials included with or as part of DataZephyr.
In addition to the foregoing, you acknowledge that LMT may establish general practices
and limits concerning use and features of DataZephyr, including without limitation the maximum number of concurrent DataZephyr sessions you may have on one computer or
individually among multiple computers, the maximum number of times (and the maximum duration for which) you may access DataZephyr in a given period of time, the maximum number of information instruments or topics you may receive data on at any time, and the frequency with which information is updated. You acknowledge that LMT reserves the right to log off users that are inactive for an extended period of time, however LMT wishes to define "inactive" in its sole discretion. You further acknowledge that LMT reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
4. Ownership and License. This agreement grants you only a license to use DataZephyr.
Title, ownership and intellectual property rights shall remain with us. We continue to own all copies of the DataZephyr software. Your rights to use DataZephyr are specified in this Agreement, and we retain all rights not expressly granted to you in this Agreement including, but not limited to, rights reserved to us or protected by patent, copyright, and trade secret laws and international treaty provisions. The license granted hereunder shall not be construed to confer any rights upon you by implication, estoppel or otherwise as to DataZephyr not specifically set forth herein. Nothing in this Agreement constitutes a waiver of our rights under U.S. patent or copyright law or any other national, federal or state law.
5. Limited Warranty. We make the following limited warranties for a period of thirty
(30) days from the date you acquired the DataZephyr software from us or our authorized dealer or otherwise began use of any aspect of DataZephyr: a) The media and documentation, if any, will be free from defects in materials and workmanship under
normal use. (b) The DataZephyr software will materially conform to the documentation that accompanies it.
(A) Limited Remedy. Our entire liability and your sole and exclusive remedy for breach
of the limited warranty set forth in this Section 5 shall be, at our option, either (a) return of the price actually paid for DataZephyr or one dollar ($1.00), whichever is greater, or (b) replacement of the DataZephyr software; provided, however, you (i) return all of the DataZephyr software and associated information, and any copies thereof, and the documentation to us or to the authorized dealer from whom you acquired it, along with a dated proof of purchase; or (ii) certify in writing to us that all electronic copies of the DataZephyr software, data and documentation and any archival copies thereof have been destroyed, and in either case specifying to us the problem in writing.
(B) WARRANTY DISCLAIMER. WE DO NOT WARRANT THAT DataZephyr WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 5, DataZephyr IS LICENSED "AS IS." WE MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND AND DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This limited warranty gives you specific legal rights, and you may also have other legal rights, which vary from state to state.
6. Limitation of Liability. OUR LIABILITY TO YOU FOR ANY LOSSES SHALL BE LIMITED TO DIRECT DAMAGES, AND IN NO CASE SHALL EXCEED THE AMOUNT ORIGINALLY PAID FOR DataZephyr OR ONE DOLLAR ($1.00), WHICHEVER IS GREATER. IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING TORT, CONTRACT OR OTHERWISE, SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF LITIGATION INVOLVING THE SOFTWARE, YOU AGREE THAT AFTER FINAL JUDGEMENT AND EXHAUSTION OF APPEALS THE NONPREVAILING PARTY SHALL PAY ALL REASONABLE COSTS OF LITIGATION OF THE PREVAILING PARTY, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY'S FEES.
Some jurisdictions do not allow these limitations or exclusions, so they may not apply to you.
7. Indemnity. You agree to indemnify and hold LMT, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim
or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of DataZephyr in any way, your connection to the DataZephyr services or sites, your violation of the terms of this agreement, or your violation of any rights of another.
8. Export Controls. None of the DataZephyr software or underlying information or web sites or technology may be downloaded, used or otherwise exported or reexported (i) into
(or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using DataZephyr or any part thereof you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You agree that you will not directly or indirectly transfer DataZephyr or any part thereof to any country to which such transfer would be prohibited by the U.S. Export Administration Act and the regulations issued thereunder. You further agree that should your country require registration of this license agreement you will obtain the appropriate licenses and registrations at your own expense.
9. Modifications to DataZephyr, Term and Termination. LMT reserves the right at any
time and from time to time to modify or discontinue, temporarily or permanently, DataZephyr (or any part thereof including your license to use the DataZephyr software) with or without notice. You agree that LMT shall not be liable to you or to any third party for any modification, suspension or discontinuance of DataZephyr or any part thereof. Unless explicitly stated otherwise, any modifications to DataZephyr or any new features that augment or enhance or change the then current DataZephyr or any part thereof, including but not limited to new releases of the DataZephyr software and new web sites released as part of DataZephyr, shall be subject to the terms of this agreement.
The term of this license shall be until terminated by LMT. This license and your rights to use DataZephyr automatically terminate if you fail to comply with any provisions of this Agreement. Upon termination, you will destroy all copies of the DataZephyr software, data and documentation and any other elements of DataZephyr in your possession or under your control. Additionally, if the purchase of this license to use DataZephyr includes any continuing payments or renewal fees, termination will also occur upon non-payment of said payments and fees without a requirement of notice of termination.
10. Confidentiality. You acknowledge and agree that DataZephyr incorporates and
discloses proprietary information of ours, and such proprietary information constitutes valuable trade secrets of ours and may not be disclosed by you to any party at any time.
DataZephyr or any part thereof, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the applicable service's registration
form (referred to in this agreement as the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
If you provide any information that is untrue, inaccurate, not current or incomplete, or LMT has reasonable grounds to suspect that such information is untrue, inaccurate, not
12. Third Party Data Suppliers; Advertisers; Links. If any information which may be provided as part of DataZephyr is provided by third parties, this may be subject to various usage rules, terms and restrictions established by those third parties in their sole discretion which you are responsible for adhering to. Some information provided to DataZephyr may be distributed directly by us subject to the terms of agreements with third parties. Use of such third party information is governed by LMT's data supplier terms which can be viewed at http://www.MarketBrowser.com/mbdatasuppliers.asp and these terms are hereby incorporated by reference into this agreement.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through DataZephyr, including payment and delivery of related
goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that
LMT shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the
Service. DataZephyr may provide, or third parties may provide, links to other World Wide Web sites or resources. Because LMT has no control over such sites and resources,
you acknowledge and agree that LMT is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any information, content, advertising, products, services or other materials on or available from such sites or resources. You further acknowledge and agree that LMT shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such information, content, products or services available on or through any such site or resource.
13. Miscellaneous Provisions. This Agreement will be governed by and construed in
accordance with the substantive laws of the Commonwealth of Massachusetts. Any and all disputes arising hereunder shall be resolved only in courts located in the Commonwealth of Massachusetts and are subject to the exclusive jurisdiction of that court. The parties hereby irrevocably submit and consent to the exclusive jurisdiction of such courts and waive any defenses or objections thereto. The application of the United
Nations Convention on Contracts for the International Sale of Goods, as amended, is expressly excluded. This is the entire agreement between us relating to DataZephyr and
supersedes any prior purchase orders, communications, advertising, or representations concerning DataZephyr. If any provision of this Agreement is held to be unenforceable,
such provision shall be reformed only to the extent necessary to make it enforceable. You agree that regardless of any statute or law to the contrary, any claim or cause of
action arising out of or related to use of DataZephyr or any part thereof must be filed within one (1) year after such claim or cause of action arose or be forever barred. No change or modification of this Agreement will be valid unless it is in writing and is signed by a duly authorized Officer of our company. Notices to you may be made via
either email or regular mail. LMT may also provide notices of changes to the terms of this agreement or other matters by displaying notices or links to notices to you generally on one or more of the DataZephyr sites, or within or at a link from the DataZephyr software. Computer records stored in reasonably secure conditions on the computer system of either party shall be accepted as evidence of communication, license agreement, and payments made between the parties.
14. Agreement Provisions which Survive Termination. The following provisions will survive termination of this agreement:
(i) Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13; and (ii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
Canadian Transactions. If you acquired access to or use or intend to use DataZephyr or any part thereof in Canada, France, or other French-speaking countries, you agree to the following:
The parties hereto have expressly required that the present Agreement and its Exhibits
be drawn up in the English language. / Les parties au présent contrat ont expressément
exigé que ce contrat ainsi que ses Annexes soient redigées en langue anglaise.
If you have any questions about this Agreement, write to us at Leading Market Technologies, Inc., 58 Winter Street, 5th Floor, Boston, MA 02108, USA