Last Updated: [9/20/17]
DataTrek Research, LLC (“DataTrek”, “us”, or “we”) provides services related to market insight and research (the “Services”) through the DataTrek sites, including through https://www.datatrekresearch.com, our Newsletters (as defined below), our mobile sites and our native apps (the “Sites“).
Certain Services provided by DataTrek, including through the Sites, require the creation of an account or other login credentials (an “Account”) are necessary. The applicable terms that govern the use of the Services for which an Account are necessary are detailed in the Subscription Agreement or the End User License Agreement (each as a “EULA”) that Users are required to agree to before their use of the Services. The EULAs both modify this Agreement and include additional provisions, terms and conditions, so please read them carefully before creating an account or utilizing the Services. The EULAs are available on the respective sign-up pages for the Services and within the Services themselves. If you sign up for additional features and services that are governed by additional terms and conditions, we will inform you accordingly when you sign up for these additional features and services. EULAs and other additional terms and conditions are hereby incorporated into this Agreement by reference unless otherwise expressly provided therein.
Please read this Agreement carefully before using the Sites or parts thereof. This Agreement is a legally binding agreement between you (the individual using the Services, not on behalf of any Company for which they are used) and DataTrek.
By accessing and using the Sites you agree to and will comply with and be bound by this Agreement including all of its terms and conditions. DataTrek reserves the right to change, update or modify this Agreement at any time without prior notice. As a result, you should review this Agreement every time you use any of the Sites. If you do not agree to the terms of this Agreement, you may not use the Sites.
“Account” means a DataTrek System account created in order to utilize the DataTrek System and receive DataTrek Licensed Content.
“Content” means any work of authorship or information, including, comments, opinions, postings, messages, text, files, images, photos, e-mail, or other materials.
“Newsletter” or “Newsletters” means the email newsletters provided by DataTrek on a subscription basis, pursuant to Subscription Agreement available at http://datatrekresearch.com/subscription-agreement-eula/.
“System” means the means the applications and platforms to which you have been granted access, which may include, but are not limited to, the DataTrek website available at http://www.datatrekresearch.com, the Newsletters, the DataTrek mobile applications, web applications, website, servers and networks, wherever situated, and the coded instructions (whether in the form of source code, object code, or interpreted code), logic, texts, rules and operating system data, and any associated metadata, buildfiles, makefiles, configuration files, database schema and database contents, for the foregoing.
“User” means any visitor to the Sites or Services.
Term and Termination
Ownership and Use of Sites
Except as otherwise expressly granted herein and in any applicable EULA, you are not granted any rights in or to any DataTrek Content, including any rights to use, distribute, display or otherwise exploit any DataTrek Content.
Your Grant and Use of the Sites Generally. We do not claim ownership in any content that you upload, provide, make available, or otherwise transfer (“post”) on the Sites, but to be able to legally provide our Users with the Sites, we have to have certain rights to use such Content in connection with the Sites, as set forth below. In return, we also grant you certain use rights, as set forth in the section entitled DataTrek Content, to the Content that we (or our licensors) own and use to provide the Sites to you and other Users. By posting any Content on the Sites, you hereby grant to us an unrestricted, irrevocable, perpetual, non-exclusive, fully-paid and royalty-free, license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, perform, display, create derivative works of, and distribute such Content in any and all media (now known or later developed) throughout the world.
DataTrek Content. The Sites contain Content provided by us and our licensors (“DataTrek Content”). We and our licensors own and retain all proprietary rights in the DataTrek Content and we own and retain all property rights in the Sites. Provided you are a User, and subject to the terms and conditions of this Agreement and any applicable EULA, we hereby grant you a limited, revocable, non-sublicensable license under the intellectual property rights licensable by us to download, view, copy and print DataTrek Content from the Sites solely for your personal use in connection with your use of the Sites. Nothing in this Agreement shall does nor shall be interpreted to grant any licenses in any DataTrek Content aside from those expressly granted herein.
Content from Users. Content from other Users, advertisers, and other third parties is made available to you through the Sites. Because we do not control such Content, (a) we are not responsible for any such Content, including advertising and information about third party products or service, (b) we make no guarantees about the accuracy, currency, suitability, or quality of the information in such Content and (c) we assume no responsibility and waive any and all liability arising from or related to unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other Users, advertisers, and third parties.
Your interactions with other Users on the Sites or with advertisers, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User or advertiser. You acknowledge that we are not responsible for any loss or damage incurred as the result of any such dealings or with respect to any other User’s use or disclosure of information about you that you have provided to publicly available sections of the Sites. If there is a dispute between you and any third party (including any User), we are under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and other Users. You are solely responsible for any Content you post to the Sites and for the accuracy of such Content. DataTrek takes no responsibility, assumes no liability and disclaims any such liability for any Content posted by you or any third party.
DataTrek User Interaction
You will not use any information obtained from the Sites in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any User without their prior express consent.
Acceptable Use and Prohibited Conduct
You are solely responsible for any and all Content that you post to the Sites and for your interactions with other Users.
Prohibited Content. You will not post any Prohibited Content or use any Prohibited Content in connection with the Sites. “Prohibited Content” is Content that:
Prohibited Conduct. You will not:
User Representations. You represent and warrant that:
Lawful Use. You will use the Sites in a manner consistent with any and all applicable laws and regulations and solely for lawful purposes. The Sites are for the personal use of Users only. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from your Content without notice.
Third Party Websites
DataTrek endeavors to secure the Sites by utilizing commercially reasonable security practices, but it cannot guarantee that the Sites will be error-free or completely secure. The Sites and all information, Content, materials, products (including any software) and other services included on or otherwise made available to you through the Sites are provided by DataTrek on an “as is” and “as available” basis, unless otherwise specified in writing. DataTrek does not guarantee that you will be able to access the Sites at any time of your choosing.
To the fullest extent permitted by applicable law, none of DataTrek nor any of its parents, subsidiaries, stockholders, employees, owners, members, managers, directors partners, spokespersons, affiliates, agents, suppliers, sub-contractors, licensors, successors or assigns, or the predecessors and successors to each of the foregoing (together as the “DataTrek Parties”), make any warranties of any kind and disclaim all warranties, oral or written, express or implied, as to the information, Content, materials, products (including any software) or other services included on or otherwise made available to you through the Sites or Services or any warranties arising from course of dealing, course of performance or otherwise including, but not limited to, any warranties of merchantability, fitness for a particular purpose, conformity to any representation or description, warranties that the Sites are completely secure, error-free or the information or Content contained thereon is accurate, timely or complete, or warranties of non-interruption, non-interference or non-infringement, unless otherwise expressly made herein.
DataTrek is not responsible for any of the actions or omissions of its Users, including the Content of their posts to the sites.
DataTrek reserves the right to terminate or suspend your access to the Sites or Services at any time without cause or notice.
You acknowledge that access to the Sites and Services will be provided over various facilities and communications lines, and information will be transmitted over local exchange and internet backbone carrier lines and through routers, switches, and other devices (collectively, “carrier lines”) owned, maintained, and serviced by third-party carriers, utilities, and internet service providers, all of which are beyond DataTrek’ s control. DataTrek assumes no liability for or relating to the integrity, privacy, security, confidentiality, or use of any information while it is transmitted on the carrier lines, or any delay, failure, interruption, interception, loss, transmission, or corruption of any data or other information attributable to transmission on the carrier lines. Use of the carrier lines is solely at your risk and is subject to all applicable local, state, national, and international laws.
DataTrek takes no responsibility for and disclaims any and all liability arising from any inaccuracies or defects in the communication lines, the internet or your internet service provider (“isp”), computer hardware or software, or any other service or device that you use to access the Sites.
To the extent permitted by applicable law and notwithstanding anything in this Agreement to the contrary or any failure of essential purpose of any limited remedy, DataTrek shall not be liable for any indirect, exemplary, special, incidental or consequential damages of any kind, INCLUDING any damages resulting from loss or interruption of business or lost profits, LOSS OF USE, REPUTATIONAL HARM, OR LOSS OF DATA arising out of or relating to this Agreement or the subject matter hereof, however caused, even if DataTrek has been advised of or should have known of the possibility of such damages.
Except as expressly required or warranted under this Agreement and if, and to the extent, permitted by law, in no event will DataTrek be liable for failing to provide the Sites or Services under any theory of liability, whether in contract, tort, strict liability or otherwise.
DataTrek disclaims any and all liability for erroneous transmissions and loss of service resulting from communication failures by telecommunication service providers or the Sites. You expressly acknowledge that your use of the Sites is at your sole risk.
Notwithstanding anything to the contrary contained herein, where permitted by applicable law, you agree that our liability to you for any damages arising from or related to your use of the Sites or Services or (for any cause whatsoever and regardless of the form of the action), will at all times be limited to one hundred U.S. dollars ($100).
Because some jurisdictions do not allow the exclusion or limitation of certain warranties, conditions or categories of damages, certain of the above exclusions or limitations may not apply to you. In such jurisdictions, DataTrek’s warranties, conditions and liability are limited to the fullest extent permitted by law.
You agree to indemnify, defend, and hold harmless each of the DataTrek Parties from and against any claim, cost or liability, including reasonable attorneys’ fees, arising out of: (a) your use or misuse of the Sites; (b) any breach by you of any term, condition, representations, warranties, covenants or agreements contained in this Agreement; (c) the actions of any person gaining access to the Sites under a user ID or account assigned to or created by you; (d) the actions of anyone using a user ID or account, password or other unique identifier assigned to you that adversely affects the Sites or any information accessed through the system, including but not limited to a security breach; and (e) your negligent actions or omissions or willful misconduct, including omissions.
You acknowledge that, pursuant to the Digital Millennium Copyright Act (“DMCA”), DataTrek may respond in accordance with the requirements of the DMCA to “take-down” notices from third parties which allege that the inclusion of information or other Content which you provide in or on our Sites violates the notifying party’s or parties’ copyrights. In so doing, DataTrek may elect to remove (or require you to remove) such allegedly infringing information from the Sites and/or DataTrek systems unless you object to the allegation of infringement, in which case DataTrek in its sole discretion, pursuant to the DMCA, may elect to maintain or restore the allegedly infringing information to the Sites and/or DataTrek systems pending the outcome of any litigation or dispute which may be instituted regarding the alleged infringement. You will cooperate fully with DataTrek to assure compliance with the DMCA upon receipt by DataTrek of any “take-down” notice issued by any third party, and in so doing, to promptly inform DataTrek whether you object to any such “take-down” notice and, if so, whether you will institute litigation, arbitration or other legal process to challenge the allegations of copyright infringement.
DataTrek respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide DataTrek’s copyright agent the written information specified below:
DataTrek’s Copyright Agent for notice of claims of copyright infringement on the DataTrek’s Sites can be reached as follows:
DataTrek Research, LLC
c/o Barton LLP
420 Lexington Avenue
New York, NY 10170
ATTN: DataTrek DMCA Copyright Agent
Email notifications may be sent to: firstname.lastname@example.org
Please note that this procedure is exclusively for notifying DataTrek and its subsidiaries that your copyrighted material has been infringed on the Sites.
Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, terrorism, governmental act, failures of common carriers (including Internet service providers), acts of God, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as commercially reasonable.
Release. To the maximum extent permitted by applicable law, you hereby release each of the DataTrek Parties from claims, demands any and all losses, damages, rights, claims, and actions of any kind including personal injuries, death, and property damage, that are either directly or indirectly related to or arise from (i) the actions and omissions of other Users (including related to or arising from the Content of any posts) and Third Party Sites or (ii) any of your interactions with other Users and Third Party Sites.
Governing Law, Arbitration and Waiver of Class Action. This Agreement shall be governed by the internal laws of the State of New York without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. For any disputes not subject to the arbitration provisions below, you will to submit to the personal jurisdiction of the state and federal courts located within New York County.
By entering into this agreement, you and DataTrek are each waiving the right to trial by jury or to participate in a class action lawsuit. Each party hereby waives trial by jury to the fullest allowable extent of the law for any such claim or dispute arising from or related to this Agreement or the use of the Sites. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration on an individual basis. The arbitration shall be initiated through an established alternative dispute resolution provider chosen within the sole discretion of DataTrek. The alternative dispute resolution provider and the parties will comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, with the specific manner to be chosen by DataTrek; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered by any tribunal of competent jurisdiction. You hereby affirmatively consent to the dispute resolution and arbitration process described herein and waive all defenses or objections thereto, whether based on personal jurisdiction, forum, venue, service, or otherwise. Any and all personal appearances related to arbitration will take place in New York County, New York State. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property rights or in response or anticipation to any of your breaches of this Agreement in any court of competent jurisdiction. DataTrek shall not be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any injunctive or other equitable remedy referred to in this section and you irrevocably waive any right you may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
YOU HEREBY KNOWINGLY AGREE THAT ANY PROCEEDING, IN COURT OR BEFORE ANY OTHER COMPETENT TRIBUNAL, INCLUDING AT ARBITRATION IF APPLICABLE, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU HEREBY ACKNOWLEDGE THAT BY AGREEING AND ACCEPTING THIS TERM, YOU ARE WAIVING YOUR ABILITY TO JOIN A CLASS ACTION AGAINST DATATREK.
If to DataTrek, to:
DataTrek Research LLC.
c/o Barton LLP
420 Lexington Avenue
New York, NY 10170
ATTN: DataTrek Outside Counsel
Email notifications may be sent to: email@example.com
If to you: at any address provided by you, to us, as contact information, including by email address.
Copyright/Trademark Information. Copyright © 2017-[9/20/17], DataTrek Research LLC. All rights reserved. DataTrek™ is a trademark of DataTrek Research, LLC. The trademarks, logos and service marks (“Marks”) displayed on the 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 Mark.
Please contact us with any questions regarding this Agreement by e-mailing us at firstname.lastname@example.org