1.1 Limited License to Use the Service. Subject to the terms and conditions of these Terms of Service, TradeWing hereby grants to End-User a limited, personal, non-exclusive, non-transferable license, during the term of these Terms of Service, to access and use the Service solely for the purpose and to the extent authorized by TradeWing (and, if applicable, Organization) and, if applicable, solely in accordance with the Organization Agreement. Except for the limited license rights expressly granted under these Terms of Service, no licenses or rights are granted by TradeWing to End-User hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved by TradeWing.
1.2 License Restrictions. End-User shall not, and shall not permit any third party to, access or use the Service except as expressly authorized by these Terms of Service (and, if applicable, the Organization Agreement). For purposes of clarity and without limiting the generality of the foregoing, except as expressly authorized by these Terms of Service (and, if applicable, the Organization Agreement), End-User shall not (a) copy, modify, or create derivative works or improvements of the Service; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part; (d) bypass or breach any security device or protection used by the Service or access or use the Service other than through his or her own then valid access credentials; (e) input, upload, transmit, or otherwise provide to or through the Service or TradeWing’s systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, devices or other materials that are designed to (i) prevent, impair or otherwise adversely affect the operation of any service, hardware, network, equipment or device, (ii) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data, or (iii) adversely affect the user experience, including worms, Trojan horses, viruses and other similar devices; or (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, TradeWing’s systems, or TradeWing’s provision of any products or services to any third party. End-User shall treat the content, features, functionality, underlying algorithms, ideas and data, structure and other proprietary aspects of the Service as confidential information and at all times strictly maintain the confidentiality of the foregoing. In addition, End-User shall, if applicable, comply with Organization’s confidentiality obligations under the Organization Agreement. Certain fees may apply, and TradeWing reserves the right, at any time, to charge or modify fees in connection with the Service. End-User’s access to and use of the Service is conditional on full, timely payment of all applicable fees.
1.3 Third Party Services and Content. From time to time, TradeWing may make available (through the Service or a related TradeWing service) certain third-party services, data, content, products, applications, tools, and other materials (collectively, “Third Party Materials”). Any acquisition by End-User of any Third Party Materials, and any exchange of data between End-User and any third party or Third Party Materials, is solely between End-User (or, if applicable, Organization) and the applicable non-TradeWing provider (each, a “Third Party Provider”). TradeWing shall not be liable or responsible for any third party or any Third Party Materials, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto. TradeWing does not warrant or support Third Party Materials or their interoperation with the Service, whether or not they are designated by TradeWing as “certified,” “approved,” or any similar status. TradeWing is not responsible for any disclosure, modification, or deletion of data resulting from access by any Third Party Provider. End-User shall use any such Third Party Materials solely in accordance with the independent rights that End-User (or, if applicable, Organization) has directly secured. If any terms associated with any Third Party Materials are required by the applicable Third Party Provider and are posted in the Service (or otherwise made available to End-User), End-User shall carefully review and agree to any such terms before accessing or using such Third Party Materials. End-User hereby grants to TradeWing permission to allow the Third Party Provider to access End-User Data (as defined below) as relevant for the interoperation of Third Party Materials.
2.1 Allocation of Rights. TradeWing, Third Party Providers and their respective licensors retain all intellectual property rights in and to the Service and any Third Party Materials (including all related copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, materials and documentation. Except for any rights specifically granted to End-User under these Terms of Service, End-User hereby assigns to TradeWing all other intellectual property rights it may now or hereafter possess in the Service, any related documentation, or any suggestions or other feedback related to the Service or TradeWing’s business that End-User may provide, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be reasonably necessary to confirm such rights. End-User also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Service or any related documentation delivered or made available to End-User by TradeWing. End-User shall not engage in or authorize any act or omission that would violate, contradict, challenge or limit TradeWing’s intellectual property rights. Nothing contained in these Terms of Service will restrict TradeWing from using any feedback, skills, knowledge, concepts, methodologies, functionalities, processes, techniques or information in intangible form that is gained through the performance of these Terms of Service or access to End-User’s information or materials (collectively, “Residuals”). All Residuals shall remain the property of TradeWing.
3.1 Warranty Disclaimer. EXCEPT FOR ANY WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRADEWING (AND, IF APPLICABLE, ORGANIZATION) DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE, ANY OTHER TRADEWING PRODUCTS OR SERVICES, ANY THIRD PARTY MATERIALS OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. TRADEWING DOES NOT PROVIDE LEGAL ADVICE, DOES NOT GUARANTEE ANY PARTICULAR RESULTS AND DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION, DELAY OR ERRORS OR THAT ANY ERRORS WILL BE CORRECTED. NEITHER TRADEWING NOR ORGANIZATION MAKES ANY WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OR APPROPRIATENESS OF ANY CONTENT PROCESSED OR AVAILABLE IN CONNECTION WITH THE SERVICE. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN END-USER (OR, IF APPLICABLE, ORGANIZATION) AND THE APPLICABLE THIRD PARTY PROVIDER. TRADEWING’S PERFORMANCE SHALL AT ALL TIMES BE CONDITIONED UPON END-USER’S PROPER AND TIMELY (A) PROVISION OF CURRENT, ACCURATE, TRUE, LAWFUL, LAWFULLY OBTAINED AND COMPLETE END-USER DATA; AND (B) PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. TradeWing does not endorse any Third Party Provider or Third Party Materials. TradeWing shall not be liable or responsible for any acts or omissions of any Third Party Provider or for any Third Party Materials, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto. TradeWing reserves the right, at any time, to modify, suspend or discontinue the Service, and End-User agrees that TradeWing shall not be liable for any such action and that the Service may not include any particular functionality or features (regardless of any TradeWing statements or documentation).
3.2 Limitations of Liability. IN NO EVENT SHALL TRADEWING, ITS AFFILIATES, ORGANIZATION OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE TO END-USER UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ITS SUBJECT MATTER FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF REPLACEMENT OR SUBSTITUTE GOODS OR SERVICES, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TRADEWING, ITS AFFILIATES, ORGANIZATION OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS TO END USERS UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ITS SUBJECT MATTER, REGARDLESS OF THE BASIS OR THEORY OF ANY CLAIM, EXCEED THE LESSER OF (A) THE FEES PAID BY END-USER TO TRADEWING FOR THE SERVICE FOR THE PERIOD OF SIX (6) MONTHS PRIOR TO THE EVENT THAT FIRST DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED, OR (B) $500.
3.3 Essential Part of the Bargain. The Parties acknowledge that the disclaimers and limitations set forth in this Section are an essential element of these Terms of Service between the Parties and the Parties would not have entered into these Terms of Service without such disclaimers and limitations.
4.1 Indemnification. End-User shall indemnify and hold harmless TradeWing and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, clients, successors, and assigns (each, a “TradeWing Indemnitee”) from any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred by such TradeWing Indemnitee in connection with any claims, proceedings or causes of action that arise out of or result from, or are alleged to arise out of or result from, any (a) End-User Data, including any access, use, collection, generation, handling, processing, copying, storage, hosting, transmission, disclosure, transfer, disposal or destruction of End-User Data by or on behalf of TradeWing as permitted under these Terms of Service; (b) access to or use of the Service, any other user’s content or any Third Party Materials by End-User or under End-User’s account in violation of any applicable law, regulation or third party terms, policies or agreements; (c) breach by End-User of these Terms of Service; or (d) negligence, gross negligence or willful misconduct by or on behalf of End-User in connection with these Terms of Service.
4.2 Notification of Unauthorized Use. End-User shall promptly notify TradeWing in writing upon its discovery of any unauthorized use or infringement of the Service or the related documentation, or TradeWing’s intellectual property rights with respect thereto. TradeWing shall have the sole and exclusive right to bring any action or proceeding against any third party in relation to any such unauthorized use or infringement, and End-User shall cooperate and provide all reasonable information and assistance to TradeWing and its counsel in connection with any such action or proceeding.
5.1 Term. End-User’s access to the Service shall begin on the date End-User registers for the Service and shall continue until the earlier of (a) termination in accordance with these Terms of Service; or (b) if applicable, expiration or termination of the Organization Agreement.
5.2 Termination for Convenience. TradeWing may terminate or suspend these Terms of Service, or End-User’s access to or use of the Service, at any time. End-User may terminate these Terms of Service at any time by cancelling its account.
5.3 Effect of Termination. Upon the expiration or termination of these Terms of Service, all license rights of End-User under these Terms of Service shall automatically and immediately cease and End-User shall promptly cease all use of the Service. Subject to the terms of these Terms of Service (a) the confidentiality and indemnification obligations of the Parties contained herein will survive the expiration or earlier termination of these Terms of Service; and (b) any provision that, in order to give proper effect to its intent or express terms, should survive such expiration or termination, will survive the expiration or earlier termination of these Terms of Service.
6.1 Export Compliance. The Service may be subject to U.S. and other national export controls and economic sanctions. Inpiduals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the Service without prior written permission from TradeWing once granted by the appropriate jurisdiction. The rights and obligations of End-User shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. End-User shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws or regulations in effect from time to time.
6.2 Independent Contractors. In making and performing these Terms of Service, the Parties are acting and shall act as independent contractors. Neither Party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other Party for any purpose.
6.3 Force Majeure. TradeWing shall not be liable to End-User for failure or delay in performance under these Terms of Service if such failure or delay is caused by riot, flood, earthquake, natural disaster, electronic virus, electronic attack of infiltration, internet disturbance, government act or any other cause beyond TradeWing’s control.
6.4 Governing Law; Jurisdiction. These Terms of Service shall be governed by and construed in accordance with the laws of Delaware, excluding its conflict of laws rules. With respect to any controversy or claim arising out of or in connection with these Terms of Service, TradeWing and End-User hereby irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Delaware; provided, however, that TradeWing shall be entitled to seek equitable relief, at any time and without posting any bond or other security, in any court of competent jurisdiction.
6.5 Assignment. End-User may not assign or otherwise transfer these Terms of Service (or any of its rights or obligations hereunder) to any third party without TradeWing’s prior written consent. Any assignment in derogation of the foregoing is null and void. TradeWing may freely assign or transfer these Terms of Service (or any of its rights or obligations hereunder). These Terms of Service shall inure to the benefit of each party’s successors and permitted assigns.
6.6 Notices. All notices to either Party shall be (a) in writing and delivered by hand or by certified mail or overnight delivery service to the address set forth by such Party or to such other address as either Party shall give by notice to the other Party; or (b) if TradeWing is providing notice, by email to the email address associated with End-User’s account or by posting such information to the Service. Notices shall be effective when delivered in accordance with the foregoing. End-User hereby consents to receiving communications from TradeWing electronically in relation to these Terms of Service, the Service or any other related TradeWing products, offerings or services. Please send any questions, comments or concerns about the Service to firstname.lastname@example.org.
6.8 Waivers. A waiver by either Party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.
6.9 Severability. These Terms of Service are severable, and if any provision of these Terms of Service is, for any reason, finally determined to be invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent legally permissible and such invalidity, illegality, or unenforceability shall not affect any of the remaining provisions of these Terms of Service.