Section I SERVICES
(a) Vickers Stock Research Corporation, hereinafter known as "Vickers", agrees to furnish the person or entity set forth in the corresponding Registration Data (as hereinafter defined) ("Subscriber") with access to Vickers-Stock.com (the "Site"), upon Subscriber's acceptance of the Terms of Agreement (this "Agreement") detailed below. The Site is the property of Vickers, is copyrighted in the name of Vickers and is furnished at Subscriber's request and for Subscriber's exclusive use. The Site is subject to change.
(b) NO PORTION OF ANY DATA OR INFORMATION FURNISHED BY VICKERS MAY BE COPIED OR OTHERWISE REPRODUCED, REPACKAGED, REDISTRIBUTED FURTHER TRANSMITTED, TRANSFERRED, DISSEMINATED, SOLD, RESOLD, LEASED, RENTED, LICENSED, SUBLICENSED, ALTERED, MODIFIED, OR STORED FOR SUBSEQUENT USE FOR ANY PURPOSE, IN WHOLE OR IN PART, IN ANY FORM OR BY ANY MEANS WHATSOEVER (INCLUDING, BUT NOT LIMITED TO THE INTERNET, INTRANET OR OTHER TYPE OF NETWORK), BY SUBSCRIBER OR ANY OTHER PERSON OR ENTITY WITHOUT THE PRIOR WRITTEN CONSENT OF VICKERS. SUBSCRIBER MAY NOT OFFER OR OTHERWISE MAKE AVAILABLE ANY PORTION OF ANY DATA OR INFORMATION FURNISHED BY VICKERS TO ANY THIRD PARTY OR TO ANY OTHER USER, COMPETITOR OR WEBSITE.
(c) Vickers may immediately cancel or withdraw all or part of the Site if: (i) Vickers determines that the provision of the Site, or any component thereof, has become unlawful (including, but not limited to, violating any applicable law, statute, regulation, order or decree); (ii) any agreement between Vickers, or any of its affiliates, and any third party on which any portion of the Site depends, is terminated or Vickers is otherwise unable to obtain any services for which any such agreement provides; (iii) Vickers determines that Subscriber is in violation of this Agreement or any applicable law (including, but not limited to, violating any law, statute, regulation, order or decree); or (iv) any portion of the Site becomes subject to a claim that it infringes the rights of any third party.
Section II Charges / Term / Termination
(a) Access to the Site is available only through the purchase of a Site subscription.
(b) Subscriber agrees to pay, using a valid credit card which Vickers accepts, the monthly or annual subscription charges set forth on the Site, applicable taxes, and other charges incurred on Subscriber's account in order to access the Site. Vickers reserves the right to increase fees, surcharges, and Site subscription fees, or to institute new fees at any time, upon reasonable notice either posted in advance on the Site, or sent to Subscriber by electronic mail or other means, that would take effect at the inception of the Subscriber’s next renewal period. Subscriber is responsible for regularly reviewing the Site or such electronic mail or other means. Continued use of the Site after any such increase, or institution, constitutes Subscriber’s consent to such increase or institution. Vickers will automatically charge Subscriber's account for renewal of Subscriber's Site subscription. The renewal charge will be the current published rates for the term of Subscriber's site subscription. In the event Vickers cannot charge Subscriber's account, Subscriber shall have breached this Agreement and all amounts owed hereunder not paid when due will bear interest from the date such amount became due at the lesser of: (A) 1.5 percent per month or (B) the maximum allowable rate of interest permitted by applicable law for transactions between sophisticated commercial entities, if applicable.
(c) In addition to the charges set forth above, Subscriber is responsible for all charges associated with connecting to the Site, including, without limitation, all telephone access lines (including long-distance charges, when applicable), telephone and computer equipment and any service fees necessary to access the Site. In the event that Subscriber uses the Site in violation of this Agreement, in addition to any other remedy Vickers has under this Agreement, at law or in equity, Subscriber shall pay to Vickers such fees as Vickers deems appropriate for all such usage (such fees may consist of, but are not limited to, any fees that Vickers charges other of its subscribers in the ordinary course of Vickers’ business for such usage).
(d) For purposes of identification and billing, Subscriber agrees to provide Vickers with accurate, complete, and updated information required by the Site for subscription registration to the Site ("Registration Data"), including, but not limited to, number of users, Subscriber's name, the name of a contact person, address, telephone number(s), e-mail address and applicable payment data (e.g., credit card number, e-mail address, and expiration date). Subscriber may check, following subscription help instructions, to determine whether Subscriber's Registration Data is current and accurate, and, if not, to correct or update Subscriber's Registration Data..
(e) Subscriber agrees to promptly update Subscriber's Registration Data by following subscription help instructions, in the event of any known or suspected unauthorized use of Subscriber's subscription, or any known or suspected breach of security, including, without limitation, loss, theft, or unauthorized disclosure of Subscriber's password or credit card information. In the event of a breach of security, Subscriber will remain liable for any unauthorized use of Subscriber's subscription until Subscriber updates Subscriber's Registration Data. If Subscriber's credit card expires, is canceled, is lost or is subject to use without Subscriber's authorization, or if Subscriber's subscription is subject to use without Subscriber's authorization, Subscriber shall follow subscription help instructions to update Subscriber's Registration Data.
(f) Subject to Section II(g), this Agreement will take effect on the date that Subscriber clicks on the AGREE button (the "Effective Date") and will continue for a term of 1 year from the Effective Date. This Agreement will automatically renew for additional 1 year terms unless either party gives the other written notice of termination at least 30 days prior to the expiration of the then current term.
(g) This Agreement may be terminated without notice by Vickers, or Vickers may, without notice, Vickers terminate or suspend Subscriber's access to the Site, without further obligation to Subscriber, in the event of: (i) any breach of this Agreement by Subscriber; (ii) Subscriber’s making of an assignment for the benefit of its creditors, the filing by Subscriber or its creditors of a voluntary or involuntary petition under any bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code or under the provisions of any law of like import, or the appointment of a trustee or receiver for Subscriber or its property; (iii) any sale, lease or other transfer of all or substantially all of the assets of Subscriber to any non-affiliated person or entity; or (iv) any change in control of Subscriber (whether by merger, stock transfer or otherwise). In the event of such termination, all sums due and owing by Subscriber to Vickers shall be paid within ten days of termination. Sections I, II, III, IV, V, VI and VII shall survive termination of this Agreement. If Vickers terminates this Agreement, or if Subscriber terminates this Agreement except as expressly permitted hereunder, Vickers will be entitled to recover from Subscriber, as liquidated damages, an amount equal to seventy-five percent (75%) of the fees that would have been payable by Subscriber from the date of termination or cancellation until Subscriber could have next terminated this Agreement in accordance with the terms of this Agreement. If Vickers elects to terminate this Agreement as provided herein, it may also pursue any and all other remedies available to it under this Agreement or at law or equity.
Section III RETURN OF DATA
Upon termination for whatever reason, Subscriber shall return any and all software, portion of the Site, information and programming provided by Vickers, delete any and all of the foregoing from its systems (including, not limited to, destroying any and all hard copies of any and all of the foregoing in its possession) and may not replicate any of the foregoing in any way on its own system. Subscriber shall evidence, if requested by Vickers, within fifteen days of such termination that it has deleted any and all of the foregoing from its systems and destroyed any and all hard copies of any and all of the foregoing in its possession.
Section IV REPRESENTATIONS and LIABILITY
(a) All information furnished pursuant to this Agreement is obtained by Vickers from sources believed to be accurate and reliable. Because of the possibility of human or mechanical error and any other factors, all information is provided "as is" without warranty of any kind. SUBSCRIBER AGREES THAT NO VICKERS INDEMNIFIED PARTY (AS DEFINED HEREIN) MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO SUBSCRIBER OR ANY OTHER PERSON OR ENTITY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY SUCH INFORMATION OR IN CONNECTION WITH THE USE OF SUCH INFORMATION. Under no circumstances shall any Vickers Indemnified Party have any liability to Subscriber or any other person or entity for: (i) any loss, damage or injury, direct, indirect or consequential, in whole or in part caused by, resulting from, or relating to, any claim that any information furnished pursuant to this Agreement, is not current, complete or accurate or for any delay, interruption, omission or error (negligent or otherwise), or any other circumstance or contingency within or outside the control of Vickers or any of its directors, officers, employees or agents, in connection with the procurement, collection, compilation, analysis, interpretation, communication, publication or delivery of any such information; or (ii) any direct, indirect, special, consequential, incidental, punitive or compensatory damages whatsoever, whether in contract, tort or otherwise (including, without limitation, the loss of business revenues or lost profits even if Vickers shall have been advised in advance of the possibility of such damages) caused by or relating to, the use of, or any decision made or action taken in reliance upon, any such information. In no event will the aggregate liability of the Vickers Indemnified Parties to Subscriber or to any third party arising out of or in connection with this Agreement exceed the total amount of subscription charges, excluding applicable taxes and other charges, actually paid to Vickers by Subscriber during the twelve (12) month period immediately preceding the act or omission giving rise to the claim, regardless of the cause or form of action.
(b) No Vickers Indemnified Party shall be liable in damages for any delay or default caused by force majeure and without Vickers’ fault or negligence, such as wars, acts of government, strikes, fires, floods, work stoppages, embargoes, any inability to obtain materials and/or any order or opinion of the Securities and Exchange Commission or any federal, state or foreign governmental body that prohibits the dissemination of the Site, or any portion thereof, or requires the transmitting party to be registered in a different capacity or for failure to obtain assurances or opinions therefrom that such registration is or is not required.
(c) Notwithstanding anything herein to the contrary, Subscriber agrees to indemnify, hold harmless, reimburse and defend Vickers and its officers, directors, employees, agents, representatives, contractors, sub-contractors, third party information providers and other third party suppliers, shareholders, partners, members, managers and affiliates and each of their respective successors and assigns (each, a "Vickers Indemnified Party") from and against any and all claims, losses, damages, liabilities, obligations and expenses (including, without limitation, settlement costs and any legal, accounting and other expenses for the defense of any action or threatened action) reasonably incurred in connection with any of the following: (i) any breach of this Agreement; (ii) any claim that the Site, or any portion thereof, is not current, complete or accurate; (iii) any actual or alleged infringement of copyrights, patents, service marks or trademarks or the misappropriation of trade secrets, or other proprietary rights, used and displayed in accordance with the provisions of this Agreement; or (iv) any other act or omission of Subscriber or any of its employees, agents or affiliates related to this Agreement.
(d) These terms of indemnity shall survive the termination of this Agreement. Subscriber shall not settle or compromise any claim by a third party for which Vickers is entitled to indemnification hereunder without the prior written consent of Vickers.
Section V WARRANTIES, PROPRIETARY RIGHTS and SUBSCRIBER USE
(a) SUBSCRIBER EXPRESSLY WARRANTS AND AGREES that it is either an Institutional User or a Lawyer/Legal Profession User, each as defined herein.
(b) "Institutional User" is defined as a Subscriber that is a broker selling securities to institutions, a corporate entity or department of a corporate entity which engages in investment research, mergers & acquisition or investment banking. "Lawyers / Legal Professional" User is defined as a lawyer or employee of a law firm or legal institution.
(c) SUBSCRIBER EXPRESSLY WARRANTS AND AGREES THAT IT INTENDS TO USE THE SITE, OR ANY PORTION THEREOF, FOR INTERNAL RESEARCH USE ONLY. SUBSCRIBER ALSO WARRANTS THAT IT IS NOT AN INVESTMENT DATA PROVIDER OR A COMPETITOR OF VICKERS. SUBSCRIBER AGREES THAT IT SHALL NOT DISTRIBUTE THE SITE, OR ANY PORTION THEREOF, AS A STAND-ALONE SERVICE, PACKAGE THE SITE, OR ANY PORTION THEREOF,WITH OTHER INFORMATION IN ANY FORMAT TO ANY THIRD PARTY, OR IN ANY WAY USE THE SITE, OR ANY PORTION THEREOF, TO PREPARE A COMPETITIVE PRODUCT. Subscriber agrees that Vickers and/or its affiliates, and their respective successors and assigns, retain all proprietary rights and interests in the Site, or any portion thereof, and Subscriber may not assert any claim of ownership or obtain any proprietary rights to the Site or any portion thereof. SUBSCRIBER FURTHER AGREES NOT TO USE OR PERMIT ANYONE TO USE ANY VICKERS DATA FOR ANY ILLEGAL PURPOSE OR TO USE THE SITE OR ANY PORTION THEREOF IN ANY WAY NOT PURSUANT TO THE TERMS OF THIS AGREEMENT.
(d) SUBSCRIBER FURTHER WARRANTS AND AGREES THAT IT HAS EXECUTED THIS SUBSCRIPTION AGREEMENT AS AN INSTITUTIONAL USER AND HAS SELECTED AN INSTITUTIONAL USER SUBSCRIPTION LEVEL OR AS A LAWYER/LEGAL PROFESSION USER AND HAS SELECTED A LAWYER/LEGAL PROFESSION USER SUBSCRIPTION LEVEL AND THAT THERE WILL BE NO MORE THAN THE NUMBER OF USERS INDICATED IN THE CORRESPONDING REGISTRATION DATA ACCESSING THE SITE DIRECTLY OR INDIRECTLY AND THAT THOSE USERS ARE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. SELECTING AN UNAUTHORIZED SUBSCRIPTION LEVEL OR FALSIFYING THE NUMBER OF USERS IS A MATERIAL BREACH OF THIS AGREEMENT AND WILL CAUSE IMMEDIATE TERMINATION OF THE SERVICES PROVIDED HEREIN AS WELL AS PURSUIT BY VICKERS OF ANY AND ALL LEGAL REMEDIES AVAILABLE.
(e) In the event that any computer software or other machine-readable code is furnished to Subscriber pursuant to this Agreement then, in addition and without prejudice to the provisions herein, Subscriber agrees that no right is granted to decompile, disassemble or otherwise reverse-engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the software. Subscriber expressly agrees to refrain from such activity or to permit or to arrange for any party to do so. Subscriber shall not use any software, robot, spider or other device or process to: (i) monitor or copy the Site or any content contained therein or (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site. Subscriber shall not take any action that imposes an unreasonable or disproportionately large load on Vickers’ computer infrastructure.
(f) Subscriber shall not use any trade name, trademark or service mark of Vickers or its affiliates or data suppliers (including, but not limited to, the names Industry Classification Benchmark, ICB and FTSE) (collectively, the "Trademarks") or refer to the any of Vickers or its affiliates, or any of their products and/or services, in any advertisements, promotions, publicity releases or the like without prior written approval of Vickers. All rights with respect to the foregoing are reserved to Vickers and/or its affiliates and their respective successors and assigns. Subscriber acknowledges and agrees that the Trademarks are famous, well-known and internationally recognized trade names, trade marks and services marks owned by their owners or their licensors as the case may be. Subscriber has no rights to the Trademarks. Subscriber recognizes the great value of the reputation and goodwill associates with the Trademarks and agrees that all goodwill associated with the Trademarks from the information furnished pursuant to this Agreement shall belong exclusively to the applicable owner or licensor as the case may be. Subscriber further acknowledges and agrees that (i) the information provided pursuant to this Agreement is the exclusive property of its owners, not within the public domain and is protected by copyright and other intellectual property rights and (ii) such information is created by its owners or obtained from third parties and that Subscriber is not obtaining any ownership rights of any kind to any such information, which rights shall remain at all times with its owners. Subscriber will not contest the ownership or validity of any rights of any owner in the Trademarks or any information provided pursuant to this Agreement. Industry Classification Benchmark ("ICB") is a product of FTSE International Limited ("FTSE") and all intellectual property rights in and to ICB vest in FTSE. Vickers has been licensed by FTSE to use ICB. "FTSE" is a trade mark of London Stock Exchange and The Financial Times Limited and is used by FTSE under license. FTSE and its licensors do not accept any liability to any person for any loss or damage arising out of any error or omission in ICB.
(g) Subscriber agrees that it is its sole responsibility to purchase any equipment, services, software or hardware necessary to access the Site and to receive any portion thereof.
Section VI GOVERNING LAW
Vickers and Subscriber agree that this Agreement is made and entered into in the State of New York and shall be governed by and construed in accordance with the laws of New York. Vickers and Subscriber hereby agree that any legal action regarding this Agreement shall be originated in a court of competent jurisdiction sitting in the counties of Nassau, Westchester or New York in the State of New York and Vickers and Subscriber consent to the jurisdiction of such courts in the event of any legal proceeding that may result from this Agreement. Any legal action concerning this Agreement or the Site must be brought by Subscriber within one (1) year after the related claim or cause of action arises.
Section VII WAIVER
No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any further exercise of any right under this Agreement.
Section VIII ASSIGNMENT
Subscriber may not assign its rights or obligations hereunder without the express written consent of Vickers.
Section IX CONFIDENTIALITY
Subscriber agrees to hold in confidence the terms of this Agreement, as well as any proprietary information related to the business and activities of Vickers and its affiliates, and any of their customers, clients, suppliers and other entities with whom Vickers or its affiliates does business, that may be obtained from any source or may be developed as a result of this Agreement. Subscriber further agrees to restrict the disclosure of any confidential information only to the officers, directors, employees and agents who, as a result of their positions, require knowledge of such information to perform their obligations.
Section X DUE AUTHORIZATION
(a) If Subscriber is an entity, Subscriber represents and warrants that it is an entity duly organized, or qualified to do business, under the laws of the state in which it resides. (b) Subscriber warrants and represents that it is authorized to enter into this Agreement and that there are no outstanding commitments, agreements or understandings express or implied, which may or can in any way defeat or modify the rights conveyed or obligations undertaken by it under this Agreement.
Section XI MISCELANEOUS
If any clause in this Agreement is deemed to be void or unenforceable it does not negate any other clause in this Agreement. The Agreement shall form the entire agreement between the parties regarding the subject matter hereof, and supersedes all prior agreements, proposals or other communications between the parties, oral or in writing, regarding the subject matter hereof. Updated or changed versions of this Agreement may appear on the Site, and/or be sent to Subscriber by electronic mail, and are effective immediately. Subscriber is responsible for regularly reviewing this Agreement and any updates are changes thereto. Continued use of the Site after any such updates or changes are made constitutes Subscriber’s consent to such updates or changes. The headings to this Agreement are for convenience only and shall not be used as an aid to the interpretation of the Agreement. This Agreement, or any portion hereof, shall not be construed against the party drafting this Agreement or such portion hereof. For convenience, Subscriber is referred to in this Agreement as “it” regardless of whether Subscriber is an individual or an entity.
IN WITNESS WHEREOF, Subscriber acknowledges that it has provided a current and valid name, company name (if applicable), email address, payment method, and number of direct and indirect users and that all the information contained in the corresponding Registration Data is accurate, and that Subscriber shall inform Vickers in the event of a change in any of this information. By filling in the information below and clicking on the AGREE button, Subscriber represents and warrants that it has read and understood this Agreement and further warrants that it has the authority and capacity to be bound by the terms and conditions of this Agreement.