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Volatility Terms and Conditions
Date Last Modified: November 6, 2016
Welcome to Volatility!
Thank you for using our products and services. Volatility Analytics Inc. (“Volatility”) is a Delaware corporation, located in the United States.
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL OR BETA FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR BETA.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR BUTTON INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “SUBSCRIBER,” "YOU," OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Terms and Conditions Agreement is entered into as of the earlier of the date that You accept the terms herein or first access or use any Volatility Services (the “Effective Date”).
For purposes of the Agreement, the following definitions apply:
A. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
B. “Agreement” means this Terms and Conditions Agreement, any applicable supplemental terms, Order Form, and any materials available on the Volatility website that are specifically incorporated by reference.
C. “Beta Services” means services that are not generally available.
D. “Confirmation Notice” means a confirmation notice issued electronically by Volatility to the Subscriber, confirming the Services purchased and access details. Confirmation Notice includes services order forms or other purchasing documentation entered into between Subscriber and Volatility for the Services.
E. “Subscriber” means an “Annual Subscriber” or Monthly Subscriber” as the case may be.
F. “Your Data” means any data provided by You to Volatility under this Agreement.
G. “Documentation” means explanatory materials created by Volatility in printed, electronic or online form that accompany the Services.
H. "Malware" means applications, executable code, or malicious content that Volatility deems to be harmful, including, but not limited to: code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
I. “Monthly Subscriber” means Subscribers who have a valid monthly contract for Services with no annual or multi-year commitment.
J. “Non-Monthly Subscribers” means Subscribers who have a valid contract for Services for a period of time longer than one month.
K. "Non-Volatility Applications" means a web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.
L. “Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
M. “Volatility” means Volatility Analytics Inc., a Delaware corporation.
N. “Services” means "Software as a Service" or "SAAS", which consists of the provision of access via the internet to Volatility’s proprietary data analytics service for options and financial derivatives.
O. “Term” means the time period during which you have the right to receive the Services specified in an Order Form which has been accepted and acknowledged by Volatility in writing.
P. “User” means You or an employee or independent contractor who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password.
Q. "We," "Us" or "Our" means Volatility.
R. "You," or "Your" means You or the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. RIGHT OF USE AND RESTRICTIONS
A. Right to Access and Use Services. Subject to the terms of this Agreement, Volatility grants You a royalty-free, nonexclusive, nontransferable, limited term right to use the Services described in the Confirmation Notice, for up to the number of Users identified on the Confirmation Notice, solely for Your internal business use during the Term. Only one individual is authorized per User account; such accounts cannot be shared. An individual can create only one User account. Unless otherwise specified by Volatility, no software will be delivered to You as part of the Services.
B. Restrictions. You may not misuse our Services. For example, You may not interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may not access the Services if You are a direct competitor of Volatility, or for monitoring the availability, security, performance, functionality, or for any other benchmarking or competitive purposes without Volatility’s express written permission. You will not: (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make the Services available to any third party; (ii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Services, or any of its components; (iii) use the Services to conduct fraudulent activities; (iv) attempt to gain unauthorized access to the Services, engage in any denial of service attacks, or otherwise cause immediate, material or ongoing harm to Volatility, its provision of the Services, or others; (v) impersonate or misrepresent an affiliation with a person or entity; (vi) use the Services to store or transmit Malware; (vii) use the Services for any purpose that violates applicable law or regulation, infringes on the rights of any person or entity, or violates this Agreement; (viii) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign, or otherwise transfer to a third party the Services or any copy thereof, in whole or in part; or (ix) use the Services for third-party training, commercial time-sharing, or service bureau use (each of (i) to (ix), a "Prohibited Use"). All rights not expressly granted to You are reserved by Volatility and its licensors.
C. Right to Use Your Data. You hereby grant Volatility a limited, non-exclusive, royalty-free, license for the Term of this Agreement to access, use, reproduce, transmit, store, and archive Your Data solely as necessary for Volatility to (i) provide and improve the Services to You during the Term; and (ii) for the purposes set forth in Section 11 below.
3. BETA RELEASES
Volatility reserves the right to materially change or discontinue Services designated in Beta stage at any time and without notice to You. Access or use of Services identified as not generally available for commercial use, such as “Beta” or “Pre-Release” (“Beta Product”), is restricted to Your internal performance evaluation of the Beta Product. Beta Services are for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Your access to the Beta Product may be interrupted during maintenance periods. Volatility is not obligated to finally release any version of the Beta Product. You will report to Volatility unusual, unplanned, or out of the ordinary events observed in the Beta Product. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE BETA PRODUCTS MAY CONTAIN BUGS, ERRORS AND DEFECTS AND ARE NOT EXPECTED TO FUNCTION WITHOUT INTERRUPTION. VOLATILITY WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA PRODUCT.
If You have signed up for an evaluation or trial of the Services (“Evaluation”), then the provisions of this Section shall apply and shall supersede any other conflicting term of this Agreement. Your use of the evaluation is limited to a maximum of five (5) days unless otherwise specified during sign-up or agreed to in writing by Volatility. An individual, household, company, or any entity is limited to one evaluation. You acknowledge that the evaluation may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation services are provided to You solely on an "AS-IS" basis, and Volatility disclaims any warranty or liability obligations to You of any kind. You are not eligible for any support for evaluation Services. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, VOLATILITY'S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF ONE HUNDRED ($100.00) DOLLARS (OR THE THEN CURRENT VALUE IN THE RELEVANT LOCAL CURRENCY) IN TOTAL.
5. YOUR OBLIGATIONS
A. You are responsible for all activity occurring under Your Services and accounts. You will provide Volatility with all information and assistance required to supply the Services or enable Your use of the same. You will immediately notify Volatility upon becoming aware of any: (i) unauthorized account use or other suspected security breach; (ii) unauthorized use, copying or distribution of the Services, accompanying documentation or Your or Service Data; (iii) unusual performance of the Service observed by You; and (iv) learning that multiple individuals are using a single user account.
B. You must obtain all necessary rights and permissions from Users. You represent and warrant that: (i) You have the legal rights and applicable consents to provide Your Data to Volatility, (ii) You comply with all applicable laws for processing and transferring Your Data to Volatility, (iii) You retain adequate back-ups of Your Data, and (iv) You are solely responsible for Your Data, the servers and such network on which such data is stored and transmitted. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Data. The Services rely on Your Data as supplied by You, as well as the servers and network used by You, and Volatility is not liable for the content of Your Data or Your servers and other equipment and personal property. Volatility does not assume any duty or obligation to correct or modify Your Data, servers, equipment, or personal property.
C. You agree to provide current and complete account Users’ information as necessary for Volatility to manage Your account. You agree to accept Volatility emails relevant to Your receipt of the Services at the e-mail addresses specified by its system administrator and User(s).
D. You agree that Volatility may rely on all information provided to Volatility by You from the designated e-mail addresses. Volatility may provide all notices, statements, and other communications arising under this Agreement to You through either e-mail, posting on the Services or other electronic transmission.
6. VOLATILITY OBLIGATIONS
Volatility is responsible for providing the Services in substantial conformance with this Agreement and the Order Form.
7. TERM AND TERMINATION
A. Term of Agreement. Unless earlier terminated pursuant to Sections 7 (Term and Termination) or 13C (Limitation of Remedy). This Agreement commences on the date You first accept it or first access or use any Volatility Services and continues until all rights to use the Services hereunder have expired or have been terminated.
B. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Subscriptions will automatically renew for additional periods equal to their initial period, unless either party gives the other notice of non-renewal. Non-Monthly Subscribers must provide notice of non-renewal at least fifteen (15) days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless Volatility has given Subscriber written notice of a pricing increase at least twenty (20) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
a. For Cause. Either party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) You make an unauthorized assignment of this Agreement. Upon termination of this Agreement, You agree that Volatility has no obligation to retain Your Data, which may be irretrievably deleted. You are solely responsible for retrieving Your Data in Your account.
b. For Convenience. Either party may terminate this Agreement, for any reason or for no reason, upon written notice to the other party.
D. Refund or Payment upon Termination.
a. For Cause. If this Agreement is terminated by You in accordance with Section 7.C.a., Volatility will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Volatility in accordance with Section 7.C.a, You will pay any unpaid fees covering the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Volatility for the period prior to the effective date of termination.
b. For Convenience. If this Agreement is terminated by You in in accordance with Section 7.C.b., then You shall not be entitled to any refund and shall be liable for any unpaid fees for the term.
E. Effect of Termination / Data Deletion. On the termination of this Agreement for any reason: (A) all rights granted to You under this Agreement, including Your ability to access any data stored in the Services, will immediately terminate; and (B) You must promptly discontinue all use of the Services and delete or destroy any Volatility Confidential Information. Upon termination of the Agreement, Volatility will have no obligation to maintain or provide Your Data, and may thereafter delete or destroy all copies of Your Data in Volatility’s systems or otherwise in its possession or control, unless legally prohibited. Termination of the Agreement will not entitle You to any refunds, credits, or exchanges.
8. FEES AND PAYMENT FOR PURCHASED SERVICES
A. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased regardless of actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable unless otherwise stated, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
B. Invoicing and Payment. You will provide Volatility with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Volatility. If You provide credit card information to Volatility, You authorize Volatility to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 7B (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Volatility will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Volatility and notifying Volatility of any changes to such information.
C. Overdue Charges. If any invoiced amount is not received by Volatility by the due date, then without limiting any rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Volatility may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 8B (Invoicing and Payment).
D. Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for Services is 10 or more days overdue, Volatility may, without limiting any other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to You until such amounts are paid in full.
E. Payment Disputes. Volatility will not exercise its rights under Section 8C (Overdue Charges) or 8D (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
F. Taxes. Volatility’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Volatility has the legal obligation to pay or collect Taxes for which You are responsible under this Section 8F, Volatility will invoice You and You will pay that amount unless You provide Volatility with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Volatility is solely responsible for taxes assessable against Volatility based on Volatility’s income, property and employees.
9. SUSPENSION OF SERVICE
Volatility may suspend the Services: (a) if Volatility deems it necessary to prevent or terminate any Prohibited Use; or (b) upon notice to You if: (i) You commit a material breach of this Agreement; or (ii) if Volatility receives credible notice from a third party or agency that You are in material breach of the Agreement. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including Your obligation to pay fees.
Volatility may temporarily suspend the Services for maintenance purposes. Volatility will use commercially reasonable efforts to minimize any such disruption of Services.
“Confidential Information” means any business materials, data, or information of a party to this Agreement that is disclosed to the other, except for information that is publicly available or later becomes publicly available other than through breach of this Agreement. You acknowledge that Volatility's pricing, services access codes and Intellectual Property are Volatility’s Confidential Information. The party receiving Confidential Information (“Receiving Party”) will exercise the same degree of care and protection for the Confidential Information of the party that has disclosed Confidential Information (“Disclosing Party”) that it exercises with its own Confidential Information but no less than a reasonable degree of care. The Receiving Party may not directly or indirectly disclose, copy, distribute, republish, sell, license or otherwise allow any third party access to such Confidential Information. The Parties agree to maintain the confidentiality as described herein even after the termination of this Agreement. Notwithstanding the above, either party may disclose Confidential Information: (1) to its employees, contractors or agents who have a need to know in order to provide and improve the Services and are subject to substantially similar obligations of confidentiality; and (2) if required by law (including a court order or subpoena), provided, the Receiving Party, where lawfully permitted, promptly notifies the Disclosing Party in time to review and challenge the potential disclosure. In the event of any termination or expiration of this Agreement, each party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the other party; provided however, that Volatility may retain copies of Your Confidential Information for routine backup and archival purposes.
12. INTELLECTUAL PROPERTY
The Services (including any associated, documentation, hardware, websites, passwords, components and tools) (“Volatility Property”) are the sole and exclusive property of Volatility or its licensors, who retain sole ownership of all right, title and interest in Volatility Property, as well as any derivative works thereof. These ownership rights include copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights ("Intellectual Property"). You agree, on behalf of You and Your Users, that You will take no action inconsistent with Volatility’s Intellectual Property rights. To the extent You provide comments, suggestions or other feedback directly on and directly related to the Services ("Feedback"), You hereby grant to Volatility a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license, with the right to sublicense, such Feedback to incorporate or otherwise utilize Feedback as provided in Volatility’s Services or future products.
13. LIMITED WARRANTY, REMEDIES AND DISCLAIMER
A. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
B. LIMITED WARRANTY. Volatility warrants that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical specifications of their Services; and (b) the Services will substantially conform with this Agreement. Volatility shall only provide the foregoing warranty where You have an active subscription to the Services. There shall be no other warranty.
C. LIMITATION OF REMEDY. The sole and exclusive remedy for any claim for breach of warranty under this Agreement is for Volatility to modify the Services to conform with the Documentation. If Volatility is unable to do so, Volatility may, in its own discretion: (1) allow Monthly Subscribers to terminate the Agreement; or (2) for Non-Monthly Subscribers, provide a credit that extend the term of the Subscriber’s Service Agreement by thirty (30) days upon renewal of the annual Agreement.
D. Disclaimer Regarding Content. The Services may contain independent third party information and rely on them to perform certain functionality. Volatility makes no warranty as to the accuracy of any such third party information. Volatility cannot and does not represent or guarantee that any of the information available through the Services or on Volatility is accurate, reliable, current, complete or appropriate for your needs. Due to various factors — including the inherent possibility of human and mechanical error — the accuracy, completeness, timeliness, results obtained from use, and correct sequencing of information available through the Services and website are not and cannot be guaranteed by Volatility. Volatility is not a financial advisor and does not represent You or advise You in any respect. The material presented is for informational purposes only and is not an endorsement of any trading strategy or an offer to sell an investment. Nothing in this material constitutes investment advice or investment research, and it is important that You do not rely upon its content to make investment decisions. Neither Volatility nor its affiliates make any guarantee or warranty as to the reliability, accuracy, or completeness of the material and shall not be liable to You, or any user, or anyone else for any damage or loss (including without limit loss of profits) whether direct, indirect, or consequential arising out of or in connection with the material.
E. Disclaimer Regarding Investment Decisions and Trading. Decisions to buy, sell, hold or trade in securities, commodities and other investments involve risk and are best made based on the advice of qualified financial professionals. Any trading in securities or other investments involves a risk of substantial losses. The practice of “Day Trading” involves particularly high risks and can cause you to lose substantial sums of money. Before undertaking any trading program, You should consult a qualified financial professional. Please consider carefully whether such trading is suitable for You in light of Your financial condition and ability to bear financial risks. Under no circumstances shall We be liable for any loss or damage You or anyone else incurs as a result of any trading or investment activity that You or anyone else engages in based on any information or material You receive through Volatility or our Services.
F. Disclaimer Regarding Backtesting, Historical Pricing and Analysis, and Hypothetical Performance Results (collectively, “Historical Analysis”). Historical Analysis has many inherent limitations, some of which are mentioned below. No representation is being made that any account will or is likely to achieve profits or losses similar to those shown. In fact, there are frequently sharp differences between Historical Analysis and actual results subsequently achieved by any particular trading program. One of the limitations of Historical Analysis is that they are generally prepared with the benefit of hindsight. In addition, hypothetical trading sometimes involved in Historical Analysis does not involve financial risk and no hypothetical trading record can completely account for the impact of financial risk in actual trading. For example the ability to withstand losses or to adhere to a particular trading program in spite of the trading losses are material points, which can also adversely affect trading results. There are numerous other factors related to the market in general or to the implementation of any specific trading program which cannot be fully accounted for in the preparation of Historical Analysis and all of which can adversely affect actual trading results. Past performance and Historical Analysis are not indicative of future results.
G. DISCLAIMER. WITH THE EXCEPTION OF THE LIMITED WARRANTY, ANY USE BY YOU AND YOUR USERS OF THE SERVICES IS AT YOUR AND THEIR OWN RISK. THE SERVICES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. VOLATILITY AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NON-INFRINGEMENT, TITLE, AND OWNERSHIP. VOLATILITY AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES: (1) ARE ERROR-FREE; (2) WILL PERFORM UNINTERRUPTED; (3) WILL MEET YOUR REQUIREMENTS. BETA AND EVALUATION SERVICES ARE ALSO PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY INCLUDING HOSTING PROVIDERS.
14. THIRD PARTIES
THE SERVICES MAY CONTAIN INDEPENDENT THIRD PARTY PRODUCTS OR INFORMATION (INCLUDING MARKET DATA, PRICING OF OPTIONS, DERIVATIVES, STOCKS, AND ANY FINANCIAL INSTRUMENTS) AND RELY UPON THEM TO PERFORM CERTAIN FUNCTIONALITY. VOLATILITY MAKES NO WARRANTY AS TO THE ACCURACY OF ANY SUCH THIRD PARTY PRODUCTS OR INFORMATION.
15. INTERNET DELAYS
SERVICES AND MARKET DATA (INCLUDING PRICING OF OPTIONS, DERIVATIVES STOCKS, AND ANY FINANCIAL INSTRUMENTS) MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS SUCH AS THOSE INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VOLATILITY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS.
No data transmission over the Internet can be guaranteed to be secure. Volatility is not responsible for any interception or interruption of any communications through the Internet or networks or systems outside Volatility’s control. You are responsible for maintaining the security of Your networks, servers, applications, and access codes.
17. LIMITATIONS OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, VOLATILITY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED: (1) FOR MONTHLY SUBSCRIBERS, TO THE FEES PAID UNDER THIS AGREEMENT FOR THE ONE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY; AND (2) FOR NON-MONTHLY SUBSCRIBERS, TO THE FEES PAID UNDER THIS AGREEMENT FOR A PERIOD OF TIME EQUAL TO A QUARTER OF THE CURRENT SUBSCRIPTION TERM IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION IS YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT. IN NO EVENT WILL VOLATILITY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING DAMAGES ARISING FROM LOSS, DELAYED USE OF DATA, OR DELAYED DATA; LOST PROFITS, SAVINGS OR REVENUE; DAMAGE TO EQUIPMENT; LOSS OF OR DAMAGE TO RECORDS OR DATA; RE-PROCUREMENT COSTS; AND THIRD PARTY CLAIMS AGAINST YOU) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF VOLATILITY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, defend, and hold Volatility harmless from all claims, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorneys' fees) arising out of or relating to any: (i) Your, Subscriber’s, or User’s engagement in a Prohibited Use; (ii) Your Data passing to or from You through the Services or Volatility's network; (iii) taxes arising from the Services whether now in effect or imposed in the future (excluding taxes based on Volatility's income); (iv) failure by You to obtain all necessary consents related to Your Data; (v) claims by third parties arising from Your use of the Services; (vi) any and all acts or omissions by You; and (vii) any reasonable costs and attorneys’ fees required for Volatility to respond to a subpoena, court order or other official government inquiry regarding Your Data or Your use of the Services.
Any waiver of rights under this Agreement must be in writing. Failure to exercise or enforce any right under this Agreement will not be deemed a waiver of that Party’s right nor bar the exercise or enforcement of it at any time thereafter.
20. JURISDICTION/GOVERNING LAW
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of California. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The federal courts of United States District Court for the Northern District of California or state courts located in Santa Clara County, as applicable, shall have the exclusive jurisdiction over all disputes relating to this Agreement.
21. NOTICE AND ACCURACY OF INFORMATION
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
All legal notices to Volatility under this Agreement must be addressed to
Attention: Legal Department
Volatility Analytics Inc.
10 Crawfords Corner Rd.
P.O. Box 70
Holmdel, NJ 07733
22. MODIFICATION TO TERMS
Volatility reserves the right to modify the terms and conditions of this Agreement at any time, effective upon the posting of an updated version athttps://www.getvolatility.com/legal/terms-and-conditions/. You are responsible for regularly reviewing this Agreement. Continued use of the Services after any such change shall constitute Your consent to the changes.
23. BINDING EFFECT AND ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Volatility retains the right to assign this Agreement in its sole discretion. You may not assign this Agreement without the prior written permission of Volatility.
Rights and obligations in Sections 1, 2B, 7, 8, 10-12, 13D-G, and 14-21 survive the termination or expiration of this Agreement. Similarly any clauses that survive the termination of this Agreement by their nature shall survive expiration or termination of this Agreement.
You shall not export the Services without Volatility’s written consent and in such case shall comply with applicable export and import laws and regulations for the jurisdiction in which the Services will be imported, exported and/or provided. You shall not export the Services to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at Your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Services provided by Volatility.
26. NOTICE TO U.S. GOVERNMENT END USERS
Volatility provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Volatility to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
27. FORCE MAJEURE
Volatility is not liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused by forces of nature or any other cause beyond its reasonable control.
28. ENTIRE AGREEMENT AND SEVERABILITY
This Agreement represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. This Agreement supersedes and controls over any conflicting terms contained in any Subscriber purchase order. If any provision of this Agreement is declared invalid or unenforceable by a court or administrative agency of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect and this Agreement shall be construed and performed as if it did not contain the invalid or unenforceable provision.
The parties to this Agreement are independent contractors. Neither party will be deemed to be or hold itself out as a partner, joint venturer or agent of the other party. This is a non-exclusive arrangement.
30. THIRD PARTIES
No term of this Agreement shall be enforceable by a person who is not a party to the Agreement.
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