DATA MARKETS, INC.
Last Updated: February 15, 2015
Certain features of the Site or Services may be subject to additional guidelines, terms or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines and rules are incorporated by reference into these Terms. These Terms are in addition to, and do not nullify, any other agreement between you and DMI or any other applicable terms and conditions found on the Site. In the event of a conflict between the additional terms or any other agreement and any provision in these Terms, the additional terms will prevail, but only with respect to the portion of the Service to which the additional terms apply. You agree to comply with all rules or restrictions that are posted on the Site.
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SITE OR SERVICES.
THE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. The Services. DMI provides an online marketplace for Sellers and Buyers of Data. As a marketplace, we do not own or sell the items listed on the Site and the contract for sale is directly between the Seller and Buyer. Your interactions with other users are solely between you and such users and DMI shall not be responsible for any loss or damage incurred as a result thereof. You agree to exercise caution and good judgment in all interactions with other users. While we may provide suggestions regarding pricing, delivery, listings and other matters in connection with our Services, such information is solely informational. If there is a dispute between you and any user, DMI is under no obligation to become involved, but reserves the right to do so. DMI’s responsibilities are limited to making the Site and Services available. We do not have control over, and we make no representations regarding (a) the existence, accuracy, reliability, quality, timing, safety or legality of, any listed Data; (b) the truth or accuracy of a Seller’s data or listings; (c) the ability of Sellers to sell the Data; (d) the ability of Buyers to pay; or (e) that a Buyer or Seller will complete a transaction. Although we may perform background checks, we cannot confirm that each user is who s/he claims to be. You should conduct your own investigation prior to purchasing Data from a Seller or selling Data to a Buyer.
2. Buyers, Sellers, and Transactions
2.1 Account Creation. To use certain portions of the Services as a Buyer or Seller, you must first register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You may only sign up for an Account on behalf of an entity or organization if you have the legal authority to bind that entity or organization. You represent and warrant that: (a) all required registration information you submit is truthful, accurate and current; and (b) you will maintain the currency and accuracy of such information.
2.2 Listings. Sellers may create and post listings (“Listings”) that describe the Data they wish to sell.
(a) Sellers may be required to post small free samples of the Data they are offering as well as certain additional information about the Data as prompted by the Listing form, such as the available delivery options.
(b) By participating as a Seller, you agree that (i) you are solely responsible for the accuracy and completeness of a Data Listing you submit and for all content contained in a Data Listing; (ii) you have the rights and authorizations to sell that data; (iii) you have the right to give out the samples you provide.
(c) Your Listing may not be immediately searchable and the appearance or placement of your Listing in search results will vary depending on a variety of factors, including, but not limited to, the Buyer’s search query, the information in the Listing, and your history or ratings. Submission of a Listing does not obligate DMI to make the Listing or any of its contents available on the Site and DMI may remove a Listing with or without notice at any time for any reason. You agree that DMI will not be liable to you or to any third party for any removal of a Listing or any part thereof.
2.3 Requests. Buyers may post requests (“Requests”) as “Requesters” that describe the Data they wish to purchase, and Sellers, potential Sellers, Buyers, DMI and others (“Request Viewers”) can search for, review and respond to the Requests, and/or DMI can transmit, flag, display, transmit, alert or otherwise inform other users that may have an interest in the Request. .
(a) By participating as a Requester, you agree that you are solely responsible for the accuracy and completeness of a Request you submit and for all content contained in a Request;
(b) Your Request may not be immediately visible to other users, and which users see your Request, and the appearance or placement of your Request will vary depending on a variety of factors, including, but not limited to, their search query or other settings, the information in the Request, and your history or ratings.
(c) Submission of a Request does not obligate DMI to make the Request or any of its contents available on the Site and DMI may remove a Request with or without notice at any time for any reason. You agree that DMI will not be liable to you or to any third party for any removal of a Request or any part thereof. DMI may inform you of relevant Listings, and/or may inform potential sellers of your Request, but is under no obligation to do so.
2.4 Data Purchases. Buyers may browse and bid on Listings they wish to purchase.
(a) By participating as a Buyer, you agree that: (i) you are responsible for reading the entire Listing before making a bid or commitment to buy; and (ii) DMI does not transfer the Data (nor ownership thereof) from the Seller to the Buyer.
(b) The Buyer and the Seller must enter into an agreement directly with one another for the Buyer to purchase the Seller’s Data (a “Transaction”).
(c) Each Listing will be subject to the Seller’s applicable terms and conditions (the “Listing Terms”), which will be the terms attached the Listing at the time that the Buyer clicks to Review them during the purchase process.
2.5 Listing Terms. Sellers will ensure that their Listing Terms (a) do not contain terms that conflict with these Terms and (b) contain an arbitration provision as the method of dispute resolution relating to a Transaction. Sellers are responsible for ensuring that each Listing has the correct Listing Terms. By attaching Listing Terms to a Listing, the Seller is offering the data products and/or services in the Listing subject to those Listing Terms.
2.6 Negotiation. The Buyer may use the Service to negotiate the Listing Terms and other details relating to the Data, such as the price and delivery method, with the Seller. The Seller may, at their sole discretion, attach revised Listing Terms to that Transaction. Any resulting Transaction will be governed by the Listing Terms to which the Buyer clicked “Agree.”
2.7 Records. We will use commercially reasonable efforts to keep records (“Records”) regarding Transactions conducted through the Site to, among other things, assist us in making Recommendations in case of dispute (as defined below); provided, however, that such Records will not include, and we have no obligation with respect to, information transmitted, or agreements entered into, outside of the Services. In addition, we have no obligation to provide such Records to you, and you should create and maintain you own records of Transactions if you so desire.
2.8 Disputes. In the event of a dispute (a “Dispute”) regarding a Transaction, we encourage you to first contact the Buyer or Seller (as applicable) using the functionality available through the Site and attempt to resolve the Dispute. If you and the Buyer or Seller (as applicable) are unable to resolve the Dispute amongst yourselves, you may contact us by emailing firstname.lastname@example.org so that we may help facilitate the resolution of such Dispute. You agree to provide to us any information regarding a Transaction that we may reasonably request in attempting to facilitate the resolution of a Dispute. If we are contacted regarding a Dispute, we will use reasonable efforts to investigate and make a recommendation (a “Recommendation”) regarding the Dispute; provided, however, that we will have no obligation with respect to information transmitted, or agreements entered into, outside of the Services in performing such investigation and providing the Recommendation. If after we submit our Recommendation, the Buyer and Seller are still unable to resolve a Dispute, each of the Buyer and Seller agrees to resolve the Dispute in accordance with the Listing Terms.
2.9 Identity Verification. You acknowledge that DMI may attempt to confirm and/or investigate information about individual users and the companies they represent.
(a) Information DMI may attempt to confirm includes but is not limited to a user’s purported identity, name, reputation, conduct, morality, criminal background, employment or other relationship with any company or other organization, title and/or role within a company or organization, contact information, residence; a company’s identity, location, size, products, services, customers, sources, legal structure, owners, parent entities, subsidiaries, legal jurisdictions where authorized to conduct business, rights and permissions to sell data and services; and including both information that any user submits to the Site and information about a user or company provided by other entities within or outside the marketplace (collectively, “Verification”).
(b) If DMI performs such Verification, we will use commercially reasonable efforts to ensure the accuracy of the results of such Verification and to provide such results to users, in a format to be determined by DMI in its sole discretion.
(c) You can find a summary of the current Verification performed by DMI on our Verification Page.
(d) While we may perform such Verification, we do not endorse any persons (Buyers or Sellers) who use or register for the Services and you should still perform your own Verification. DMI encourages you to use the tools available on the Site to communicate directly with other users and to independently investigate users and verify user identification.
2.10 Confidential Information. Information on the website and some data transacted through the service may be identified as confidential. By registering for an Account, you acknowledge and agree that
(a) any information identified as such, is proprietary or confidential information of (a) the applicable User or (b) DMI (collectively, the “Confidential Information” which such Confidential Information is a part of the Services).
(b) You further agree to keep all Confidential Information in strictest confidence and shall not disclose any Confidential Information to any other entity or person or use Confidential Information. You will disclose Confidential Information only to your employees who have a need to know such Confidential Information for purposes of this Agreement and who are obligated to maintain the confidentiality of such Confidential Information.
(c) You further agree that Information about DMI’s Services is proprietary and confidential information of DMI, including technical capabilities and interfaces; design of user interfaces; data taxonomies, ontologies, dictionaries; metadata structures (including but not limited to the fields used in Listings, Requests and Searches); the technology underlying the Services; and any notices sent to you about the Services. You agree not to share such information with the intent to help them compete with DMI.
(d) “Confidential Information” does not include information that demonstrably (a) is or becomes generally available to the public other than as a result of disclosure by you; (b) was possessed by you prior to being furnished by the Website; or (c) becomes available to the receiving party from a source other than DMI or the Site.
(e) Further, it shall not be a violation for you to disclose Confidential Information in response to a subpoena or other legal process served upon you or where applicable law or regulation requires the disclosure of such information, provided that, if not prohibited under applicable law, you give reasonable prior written notice to DMI sufficient to permit DMI to inform the applicable Seller so that the Seller can seek a protective order if it so chooses and you disclose only that information that is legally required to be disclosed.
(f) You acknowledge and agree that DMI and the Seller would each be irreparably harmed if any Confidential Information were to be disclosed to third parties, or if any use were to be made of such Confidential Information other than that permitted hereunder, and further agree that each of DMI and the Seller shall have the right to injunctive relief upon any violation or threatened violation of the terms of this Section, in addition to all other rights and remedies available at law or in equity, without having to post a bond or other security.
(g) Upon the termination, cancellation or expiration of your Account for any reason, all Confidential Information, together with any copies that may be authorized herein, shall be destroyed by you. Nothing herein is intended to or shall grant to you any license or other right of any nature to the use of any Confidential Information except as permitted in this Section.
2.11 Restrictions. You agree not to use any information obtained through the Site or through your use of the Services (including, but not limited to, information regarding Buyers, Sellers, Listings, Requests, and Transactions) for any purpose other than to consider and conduct Transactions. As a Seller, you shall not solicit, offer to sell or sell any Data to such Buyer except through the Site or otherwise circumvent any fees that are paid or would be payable to DMI.
3. Account Responsibilities.
3.1 You may not have more than one Account.
3.2 You agree not to create an Account or use the Site or Services if you have been previously removed by us or banned from using the Services. DMI reserves the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Site or Services (or any portion thereof) at any time for any reason. You agree that DMI will not be liable to you or to any third party for any suspension or termination of your Account or any refusal of any use of the Site or Services (or any portion thereof).
3.3 Information on your profile may include information and content you provide and/or upload (“Profile Information”). DMI reserves the right in its sole discretion to remove Profile Information at any time for any reason. You agree that DMI will not be liable to you or to any third party for such removal.
3.4 You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify DMI of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. DMI cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
4. Access to the Site
4.1 License. Subject to these Terms, DMI grants you a non-transferable, non-exclusive, revocable, limited license to use the Site and Services (including, without limitation, the Confidential Information).
4.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions:
(a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services, whether in whole or in part;
(b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services;
(c) you may not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such);
(d) you shall not access the Site or Services in order to build a similar or competitive website, product, or service;
(e) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means;
(f) you will pay for Data purchased by you, unless you have a valid reason not to do so (for example, the Seller did not deliver the Data, or the Data is materially different from the Data’s description, a clear typographical error is made, or you cannot contact the Seller);
(g) you will deliver Data sold by you, unless you have a valid reason not to do so (for example, the Buyer fails to follow the Listing Terms, does not pay for the Data, or you cannot contact the Buyer); and
(h) you will not manipulate the price of any Listing or interfere with any other user's Listings.
(i) Unless otherwise indicated, any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms.
(j) All copyright and other proprietary notices on the Site or Services (or on any content displayed on the Site or Services) must be retained on all copies thereof. DMI makes no representation that the Site or Services are appropriate for use in locations other than the United States.
4.3 Modification. DMI reserves the right, at any time, to modify, suspend, or discontinue the Site or Services (in whole or in part) with or without notice to you. You agree that DMI will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or Services or any part thereof.
4.4 No Support or Maintenance; Updates. You acknowledge and agree that DMI will have no obligation to provide you with any support or maintenance in connection with the Site or Services. You agree that DMI is not obligated to create or provide any corrections, updates, upgrades, bug fixes, and/or enhancements of the Site or Services (each an “Update”). However, in the event DMI decides to offer an Update, you agree that DMI may amend these Terms in connection with such Update without specific notice to you and that your use of the Site or Services following such Update is conditioned upon your acceptance of any revised Terms. By using the Site or Services following an Update, you are representing that you have reviewed the then-current version of the Terms and agree to be bound by such version. All Updates will be governed by the version of these Terms published by DMI as of the date you use the Site or Services following such update.
4.6 Ownership. Excluding any User Content (defined below) that you may provide, you acknowledge that (a) the Site and Services are and will remain the sole property of DMI and is subject to protection under U.S. and foreign copyright laws and (b) all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Services and content made available through the Site and Services are owned by DMI or its licensors or suppliers. DMI’s name, logo, and the product names associated with the Site or Services belong to DMI (or its licensors or suppliers, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms nor your access to the Site or Services transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Terms. DMI and its licensors and suppliers reserve all rights not granted in these Terms.
4.7 Feedback. You agree that submission of any ideas, suggestions, and/or proposals to us (“Feedback”) is at your own risk and that DMI has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to DMI a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights. DMI will treat any Feedback you provide to DMI as not confidential and not proprietary to you, though DMI may treat it as confidential and/or proprietary to DMI.
5. User Content
5.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site or Services (e.g., Listings; Requests; Data uploaded to the site as samples or examples; content in the user’s profile or postings; content in the user’s company profile; Transaction information). User Content excludes any Data or Data Services transacted through the marketplace regardless of how it is delivered to the Buyer;
(a) You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. DMI has no responsibility or liability for the accuracy of any User Content.
(b) You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined below). Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy.
(c) You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by DMI.
(d) DMI is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
(e) DMI has no responsibility or liability for the deletion failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Site or Services.
(f) You acknowledge that DMI has no obligation to pre-screen User Content, although DMI reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason.
(g) PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE WILL BE ACCESSIBLE BY USERS OF THE SITE AND SERVICES.
5.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to DMI an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site and Services and operating and providing the Site and Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
5.3 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
(a) Content. You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornograph c, obscene, patently offensive, or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) Behavior. In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site or Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site or Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harass or interfere with any other user’s use and enjoyment of the Site or Services; (iv) impersonate any person or entity, including any employee or representative of DMI, or falsify or misrepresent yourself or your affiliation with any person or entity; (v) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services, or violate the regulations, policies or procedures of such networks; (vi) attempt to gain unauthorized access to the Site or Services (or to other computer systems or networks connected to or used together with the Site or Services), whether through password mining or any other means.
(c) Collection. In addition, you agree not to (i) use the Site or Services to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; or (ii) use software or automated agents or scripts to produce multiple accounts on the Site or Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site or Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site or Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
5.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account, notifying your employer, notifying 3rd party business reputation services, and/or reporting you to law enforcement or regulatory authorities.
5.5 Forum Guidelines. The Site or Services may include various areas that enable you to post information, provide feedback, recommendations, reviews, and comments, and otherwise interact with other users, either through postings or by interacting in real-time (the “Forums”). In connection with such Forums, you agree to abide by any rules that DMI publishes in connection therewith, including but not limited to, the prohibition on use of the Site or Services for any unlawful purpose. Although DMI may from time to time review the Forums, you acknowledge and agree that DMI is under no obligation to monitor or control, and will have no liability for, any information available via the Forums. You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated on the Forums are those of their respective authors who are solely responsible and liable for their content. DMI reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Forums.
5.6 Content Provided by Other Parties. The Site and Services may contain User Content provided by other users or third parties. We are not responsible for and do not control such content. We have the right, but no obligation to review or monitor such content. We do not approve, endorse or make any representations or warranties with respect to such content. You use all such contact at your own risk.
5.7 Ownership. Each user owns its own User Content. By making available your User Content on or in the Site or Services, you represent that you own or have all rights necessary to make available your User Content.
5.8 Contact information. By providing your individual and company contact information, you are authorizing DMI to contact you using any of those methods, unless we explicitly provide you the ability to indicate otherwise and you so indicate. You further authorize other users to contact you using any of the information visible to them (including but not limited to your individual public profile and your company’s profile).
6. Fees and Purchase Terms
6.2 Receiving Payments. In order to receive payments through the Services, a Seller must create a WePay merchant account. Payments to Sellers will be deposited in the Seller's WePay account, less the transaction fees (described below). Sellers have immediate ownership over such payments and can electronically transfer the funds from their WePay account to their bank account per the WePay Terms of Service.
6.3 Chargebacks and Refunds. The Seller has sole control over the payments made through WePay and is responsible for issuing refunds and handling chargebacks. All issues concerning chargebacks and refunds will be addressed by WePay and not DMI.
6.4 Transaction Fees. When a payment is made through WePay, a transaction fee to DMI is deducted from such payment. A payment processing fee may also be deducted and paid to WePay. These fees are described on our Fees page Fees page.
6.5 Changes. DMI reserves the right at any time to change its payment processor, payment and billing methods, either immediately upon posting on the Site or Services or by e-mail delivery to you.
6.6 Taxes. You will be responsible for paying any applicable taxes relating to your payments received and will indemnify and hold harmless DMI from any and all taxes, including sales tax, based on any payments made or received by you in connection with the Services. Any taxes imposed on payments will be your sole responsibility.
7. Indemnification. You agree to indemnify and hold DMI (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (1) your use of, or inability to use, the Site or Services; (2) your violation of these Terms; (3) your violation of applicable laws or regulations; (4) your User Content, including, but not limited to, your Data; (5) your violation of any rights of another party, including any users; or (6) your interaction with any other user. DMI reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of DMI. DMI will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Site or Services.
8. Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DMI MAKES NO WARRANTIES REGARDING THE USERS OR THE SITE AND SERVICES, INCLUDING THE DATA OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES OR THE INTERACTIONS BETWEEN THE USERS WITHIN OR OUTSIDE OF THE SITE, AND EACH OF THE FOREGOING IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND DMI (AND OUR LICENSORS AND SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE USERS OR THE SITE AND SERVICES, INCLUDING THE DATA OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES OR THE INTERACTIONS BETWEEN THE USERS WITHIN OR OUTSIDE OF THE SITE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR LICENSORS AND SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE OR SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DMI OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DMI (OR OUR LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF DMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR LICENSORS’ AND SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR LICENSORS AND SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DMI AND YOU.
10. Third-Party Links & Ads; Other Users
10.1 Third-Party Links & Ads. The Site or Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of DMI, and DMI is not responsible for any Third-Party Links & Ads. DMI provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
10.2 Release. You hereby release and forever discharge the DMI (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to: (a) the Site or Services (including any interactions with, or act or omission of, other users of the Site or Services or any Third-Party Links & Ads); (b) any inaccurate, incomplete, unreliable, unsafe, or illegal Data posted on the Services, whether caused by us or any user of the Services, or by any of the equipment or programming associated with or utilized in the Services; (c) the conduct, whether online or offline, of any user; (d) any injury, loss or damage caused by another user or Data posted on the Services, whether online or offline; and (e) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Services’ users’ communications. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
11. Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Site or Services. You may terminate your Account at any time, for any reason, by following the instructions on the Site. We may suspend or terminate your rights to use the Site and/or Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. DMI will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, all provisions of these Terms which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
12. Copyright Policy
DMI respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Site or Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site or Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- Your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Designated Agent: Copyright Agent
Address of Agent: PO Box 17773, Denver, CO 80217
Telephone: (720) 588-3320
13.1 Changes. These Terms are subject to occasional revision. We will notify you of any changes to our Terms by posting the new Terms on this page, which is available at https://dmi.io/termsofuse. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site or Services. These changes will be effective immediately for new users of our Site or Services. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
13.2 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with DMI and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Contact DMI First. If a dispute arises between you and DMI, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with DMI regarding our Site or Services by emailing email@example.com.
(b) Applicability of Arbitration Agreement. All claims and disputes in connection with the Terms or the use of any product or service provided by DMI that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and DMI, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(c) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(e) Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and DMI, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and DMI.
(f) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and DMI in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND DMI WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(g) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Denver, Colorado.
(h) Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(i) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
(j) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with DMI.
(l) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Denver, Colorado, for such purpose.
(m) Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
13.3 Export. The Site and Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from DMI or Sellers, or any products utilizing such data, in violation of the United States export laws or regulations.
13.4 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
13.5 Electronic Communications. The communications between you and DMI use electronic means, whether you use the Site or Services or send us emails, or whether DMI posts notices on the Site or Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from DMI in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that DMI provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
13.6 Miscellaneous. These Terms constitute the entire agreement between you and us regarding the use of the Site and Services, and supersedes all prior and contemporaneous discussions between the parties with respect to the subject matter hereof. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The Section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to DMI is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without DMI’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. DMI may freely assign these Terms. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns.
13.7 Force Majeure. DMI shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials
13.8 Copyright/Trademark Information. Copyright © 2015 DMI. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site or Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
13.9 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Site or Services, please contact us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.10 Contact Information. DMI’s contact information for any end-user questions, complaints or claims with respect to the Site or Services is email@example.com.