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​DIGITAL ITEMS TERMS OF USE

 

By accessing and using this web site, user agrees to these Terms of Use and user represent that user is 18 years or older. If any of these terms are unacceptable to the user, the user may not access this site until agreement has been reached between the user and Mark Fontanilla & Co., LLC as to the applicable terms of use.

 

The term "User" refers to anyone who accesses this web site and/or purchases digital products sold commercially by Mark Fontanilla &Co., LLC through this web site or any affiliated links connected to this web site.  The term "MF & Co" refers to Mark Fontanilla & Co., LLC.

 

Subject to applicable laws and regulations, MF & Co may change these Terms of Use at any time without notice. Changes will be posted to this URL. Use of this web site after any changes have been posted will constitute User’s agreement to the modified Terms of Use and all of the changes.

 

1. USE OF THIS WEB SITE

MF & Co grants User a non-exclusive, non-transferable, limited, revocable license to access and use this website and its Content (as defined below) subject to the terms set forth herein.

The content of this website includes, but is not limited to: text, data, reports, images, photos, graphics, graphs, charts, animations, and videos (together the "Content").

User agrees not to copy, reproduce, modify, display, perform, publish, distribute, transmit, broadcast, circulate, create derivative works from, store, capture, or link to this website or any of its Content without the express written consent of MF & Co.  To request consent for uses such as linking to Content on User’s website, User may contact MF & Co at info@markfontanilla.com.  Without limiting the foregoing, the Content may not be used in connection with the creation, development, calculation, compilation, publication, or distribution of any financial instrument or product, or any index or investment strategy, without the appropriate Licensing Agreements in place with MF & Co.

 

2. MF & CO’S, IT’S AFFILIATES, OR THEIR THIRD-PARTY LICENSORS’ INTELLECTUAL PROPERTY RIGHTS.

Except as otherwise provided herein by these Terms of Use, the website and the Content are the property of MF & Co, its affiliates, or their third-party licensors, and are protected by copyright and intellectual property laws. All trade names, trademarks, service marks and other product and service names and logos on the website, and within the Content contained in the website, are proprietary to MF & Co and/or their respective owners, and are protected by applicable trademark and copyright laws. Any of the trademarks, service marks or logos (collectively, the "Marks") displayed on the web site may be registered or unregistered marks of MF & Co, its affiliates, or their third-party licensors. Nothing contained on this website should be considered as a granting of license, or right to use, any of the Marks displayed on the web site, without the express written permission of MF & Co or the third-party owner of such Marks.

 

3. INTELLECTUAL PROPERTY RIGHTS IN LICENSED CONTENT

Information that appears, or may appear, on the website is provided by MF & Co and/or third parties.  Third parties who provide information have done so under a direct license agreement with MF & Co (“Licensed Content”).  Licensed Content is the property of such third parties who have contracted with MF & Co to use and/or maintain such Licensed Content, and each Licensed Content Provider may have additional Terms and Conditions/User License Agreement requirements as included in this Terms of Use, Section 10.  The Licensed Content is not sponsored by MF & Co or its affiliates or its third-party licensors. MF & Co. is not responsible for any errors or omissions in Licensed Content.  “Calculated by MF & Co” and the related stylized mark(s) are service marks of MF & Co. LLC and have been licensed for use by the Licensed Content provider.  CRTx®, RNI™, RSKFREx™, MYcx™, Hyper Neural AI™, Substance Cube™, and Configurator Cube™ are registered and unregistered trademarks of MF & Co, respectively. SRTx™ is a trademark of SCI/Structured Credit Investor.

 

4. USER’S CONTENT

Material that appears on this website that is entered by any User will be referred to as "User Content". User grants MF & Co the non-exclusive right to use, publish, distribute, and/or repurpose all material entered, submitted, uploaded, or transmitted into the web site by the User, other than third-party licensed information submitted through electronic or other mediums, in any of MF & Co' or its affiliates print or electronic publications. User will not receive any compensation from MF & Co or its affiliates in connection with your submission of User Content to this website.

 

Users submitting User Content onto this website are responsible for the content of that information. Neither MF & Co nor any of its affiliates have any responsibility for User Content, including the content of any messages or information posted by Users, or for the content of information accessible via direct or indirect hyperlinks from this website. MF & Co, in its sole discretion, reserves the right to review, edit, or delete User Content that MF & Co deems to be illegal, inappropriate, offensive, irrelevant, or infringing upon another party’s rights.

 

User agrees (a) to use this website in accordance with these Terms of Use, and (b) that user will not: (i) post or transmit any User Content that is illegal, threatening, abusive, defamatory, obscene, harassing, profane, or otherwise offensive; (ii) impersonate any person or entity or falsely state or otherwise misrepresent User’s professional or other affiliation with any person or entity; (iii) post or transmit User Content that infringes upon any legal intellectual property rights of another person or party, including patent, trademark, trade secret, copyright, or other proprietary rights; (iv) interfere with other User’s normal use of this website; (v) post or transmit any information, software or other material which is of a technologically harmful nature, such as viruses; (vi) post, transmit, or in any way exploit any information, software or other material for commercial or political purposes; (vii) post or transmit any information, software or other material which contains advertising or any other form of solicitation; (viii) access, or attempt to access, another User's login-accessed areas, or access, or attempt to access, areas to which User is not authorized to access; or (ix) use this website to violate, or attempt to violate, or assist any other person or entity in violating, or attempting to violate, any laws or agreements the User may have with MF & Co, including, without limitation, any confidentiality, non-solicitation, or non-compete agreements between User and MF & Co.

 

MF & Co, at its sole discretion, shall determine whether any User Content submitted to this website violates the Terms of Use. While MF & Co has no obligation to monitor or review User Content, User Content on this website may be pre-screened and otherwise monitored to ensure compliance with these Terms of Use. MF & Co reserves the right to discontinue User access to this website, with or without notice, if MF & Co has reasonable basis to believe that User’s access or use of this website, or the User’s Content, is in violation of these Terms of Use. User also agrees and understands that MF & Co may preserve and disclose User Content if, in MF & Co' sole discretion, such action is reasonably necessary to: (a) comply with applicable laws; (b) enforce these Terms of Use; (c) respond to claims that a User has violated the rights of third parties; or (d) protect the rights, interests, property, or reputation of MF & Co, other Users, or other persons or entities. User’s use of this website constitutes User’s consent to such monitoring and disclosure.

 

User agrees to indemnify MF & Co, its affiliates, and any third-party Content providers from all damages, liabilities, costs, charges and expenses, including reasonable attorneys' fees, that MF & Co, its affiliates, and any third-party Content providers may incur as a result of either: (i) User’s breach of Section 5 (Anti-Hacking Provisions) of these Terms of Use; or (ii) the submission of User Content to this website with the use of a User login name or password.

 

5. HACKING PROHIBITION

User agrees not to:

• Use, or attempt to use, any computer or electronic automated device, program, tool, algorithm, process, or methodology or manual process having similar processes or functionality, to access, acquire, copy, or monitor any part of this website, or Content found on or accessed through this website, or any User Content without the prior express written consent of MF & Co;

• Procure, or attempt to procure through any method, any materials or information on this website that have not been intentionally made publicly available, either by public display on this website, or vi link on this website;

• Violate the security of this website, or attempt to gain unauthorized access to this website, its Content and/or User Content, or the systems, networks or servers of MF & Co, through any means;

• Interfere, or attempt to interfere, with the appropriate functioning of this website, including accessing any data, content or other information in advance of its scheduled release and intended availability to the public on this website;

• Attempt any action that, in the sole discretion of MF & Co, imposes an inordinately excessive computational or technological load or burden on this website, or MF & Co' infrastructure; and/or

• Intentionally or unintentionally abuse this website by knowingly introducing harmful technology implementations including viruses and other materials that are detrimental or technologically harmful.

 

6. REGISTRATION

As part of any registration process for this website, User may be required to select a user name and password.  In connection with any registration process, User must provide MF & Co with accurate, complete, and updated information. Failure to do so constitutes a breach of these Terms of Use, which may result in immediate suspension of User access.

 

7. LIMITATION ON WARRANTIES AND LIABILITY

User is entirely liable for activities conducted by User in connection with access, browsing, and using this website. If User is unsatisfied with this website, or with these Terms of Use, User’s sole and exclusive option is to discontinue using this website. Neither MF & Co nor any third-party provider will pay User any compensatory damages in connection with User’s browsing and/or use of this website.

Access to this website and all its Content is provided "as is". Neither MF & Co, nor its affiliates, nor their third-party providers, make any guarantee as to the accuracy, completeness, timeliness or availability of any information provided through this web site including the Content and User Content. MF & Co, its affiliates or their third-party providers and their directors, officers, shareholders, employees or agents are not responsible for any errors or omissions, regardless of the cause, or for the results obtained from the use of the website, the Content and/or User Content. MF & Co DOES NOT EXCLUDE, OR LIMIT IN ANY WAY, ITS LIABILITY TO USER WHERE IT WOULD BE UNLAWFUL TO DO SO.  THIS INCLUDED LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY MF & Co’s NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS, AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MF & Co, ITS AFFILIATES AND THEIR THIRD-PARTY PROVIDERS DENY ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF COMMERCIAL VIABILITY OR SUITABILITY FOR ANY PARTICULAR PURPOSE OR INTENDED USE WITH RESPECT TO THIS WEBSITE INCLUDING: the Content and User Content. In no event shall MF & Co, its affiliates or their third party providers and their directors, officers, shareholders, employees or agents be liable to any person or entity for any direct, indirect, incidental, exemplary, compensatory, punitive, special or consequential damages, costs, expenses, legal fees, or losses (including, without limitation, lost income or lost profits and opportunity costs) in connection with any use of this website, the Content and/or User Content, even if advised of the possibility of such damages.

 

The research, opinions, comments, observations, and analysis of MF & Co and its affiliates contained in any Content are statements of opinion, as of the date they are expressed, and are not considered statements of fact, or recommendations to purchase, hold, or sell any securities or make any investment decisions. MF & Co assumes no obligation to update any Content following release and/or publication. Users of Content provided through this website shall not rely solely on any Content in making any investment decision. MF & Co's research, opinions, comments, observations and analysis do not determine the suitability of any security or investment. MF & Co does not act as a fiduciary, dealer, or investment advisor. While MF & Co has obtained information from sources it believes to be reliable, MF & Co does not warrant to performing audits, and undertakes no duty of due diligence, or independent verification of any information it receives. MF & Co keeps its activities separate from the activities of its affiliates in order to preserve the independence and objectivity of each of these activities. As a result, certain affiliates of MF & Co may have information that is not available to MF & Co.

 

8. ADDITIONAL LEGAL TERMS

Subject to applicable laws and regulations, MF & Co may discontinue or change this website, or its availability to Users, at any time. These Terms of Use will survive any discontinuation of this website.

 

Unless a User has entered into a separate license agreement and/or subscription agreement with MF & Co related to User’s access to, use, and/or distribution of any Content, these Terms of Use constitutes the entire agreement between the User and MF & Co regarding this website, the Content, and User Content, and supersedes an/all other agreements, either written or verbal, with respect to this website, the Content, and User Content. Any failure of MF & Co to request compliance with any of these Terms of Use shall not be construed as a waiver with regard to any subsequent failure to comply with such term or provision. If any provision in these Terms of Use is invalid or unenforceable under applicable law, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.  If such modification is not possible, the relevant terms shall be deemed deleted and the remaining provisions will continue in full force and effect. These Terms of Use, User rights and obligations, and all claims or actions related to these Terms of Use shall be governed by the laws of the United States of America and The State of North Carolina. The parties agree that the State and Federal courts located in North Carolina shall be the exclusive forums for any dispute arising out of these Terms of Use and the parties hereby consent to the personal jurisdiction of such courts. A printed version of these Terms of Use shall be admissible in judicial or administrative proceedings.

 

9. DIGITAL MILLENNIUM COPYRIGHT ACT NOTIFICATION OF CLAIMS OF INFRINGEMENT.

If User believes the Content or User Content displayed on this website is infringes upon the User, the user may send a written notice to Mark Fontanilla & Co., LLC, 255 MLK Blvd - Suite 2402, Charlotte, NC 28202 Attn. Complaints, or via email to info@markfontanilla.com. MF & Co will make every effort to respond immediately, and to remove, or stop access to, the infringing material that is claimed to be infringed, or to be the subject of the infringing activity, if it is determined that there is a legitimate infringement claim presented.

 

10. SPECIFIC DIGITAL PRODUCTS, PORTALS, AND WEBSITE PLATFORMS

Specific, restricted access content, pages, products, portals, or platforms contained within, or directed from, the website are proprietary to MF & Co and/or their respective owners, and may have additional access and usage terms and conditions, which will be listed in this section:

 

CRTx® Index Portal:

 

LICENSED USE

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Granting of License. All rights are reserved, except as expressly granted under the terms of these CRTx® Index Portal Terms and Conditions, in addition to the MF & Co Digital Items Terms of Use, which are required and agreed upon at time of License purchase. The following grant of License is subject to the User’s compliance with these Terms and Conditions:

 

MF & Co grants to Licensee the following non-transferable, non-exclusive, Index licenses:

 

  • Right-To-Use License – Depending upon subscription/license package option obtained, the Right-To-Use Licensee is granted the right to receive and use the Index Marks and copyrighted Index information, including current Index values, historical values, descriptive metrics, and any related Index documentation and/or reports. Additionally, the Licensee may be given the right to cite, quote, or reference the Index’s information and Marks in internal and external works and/or materials, or be granted the right to explicitly reference the Index in an investment vehicle or vehicles.

 

Any use of Index materials, information and/or data, in whole, part, or in derivative form, must be explicitly and appropriately referenced with any works or materials using the Index’s information and Marks. Right-To-Use License is available in three (3) package options:

                                          

  • Specific Rights-To-Use for the Benchmark license package option:

 

  • Types of Benchmarked investment vehicles permitted include investment funds and ETFs. *Derivatives contracts such as futures, options, and swaps are currently excluded.

 

  • The Benchmark Licensee is granted the right to develop and/or commercially offer an investment vehicle or vehicles that are directly and explicitly based on, or refer to, the Index. The Benchmark Licensee is further granted the right to view the Index methodology, constituents, and data during the Licensee’s development, tracking, and ongoing maintenance of its Index-related Benchmarked investment vehicle(s). The specific Index-related investment vehicles that are allowed andapproved for the Licensee under these Terms and Conditions will be outlined in detail via an exhibit attached to a separate Agreement.Any investment vehicle development must be submitted to MF & Co for final approval of adherence to the separate Agreement before the Benchmark Licensee’s commercial release of such development. Additionally, the Benchmark Licensee is given the right to cite, quote, or reference the Index’s information and Marks in internal and external works and/or materials relating to the Benchmark Licensee’s Index-related investment vehicle(s). Any use of Index materials, information and/or data, in whole, part, or in derivative form, must be explicitly and appropriately referenced with any works or materials using the Index’s information and Marks.

 

All Index copyrighted intellectual property and Marks remain the property of MF & Co, and Licensee shall not disseminate electronically or in any other form, to any third party, any information related to the Index that is not expressly allowed under these Terms and Conditions, or is designated as “Confidential” or “Proprietary” by MF & Co.

 

Licensee shall NOT have a right to Sublicense any or all of the rights granted hereunder to any affiliate of Licensee, or any other third party.

 

TERM

 

Term. The term of the Subscription/License(s) granted hereunder shall commence on the Effective Date (also the Purchase Date), and will continue for twelve (12) months, subject to these Terms and Conditions.

 

Renewal. Subscription/License will automatically renew in additional 12-month periods unless thirty (30) days prior written notice before the end of the prevailing/current 12-month licensing period is given by either party (see 4. Termination). MF & Co reserves the right to increase and/or change the Licensing Fee(s) each subsequent 12-month licensing Renewal, and MF & Co will provide prior written notice of any such upcoming Licensing Fee(s) at least ninety (90) days prior written notice to the Client.

 

TERMINATION

 

Right to Terminate. The right to terminate this Agreement prior to the end of the prevailing Term is permissible ONLY in the following instances:

 

In the case of a violation of any of the material terms and conditions of this Agreement by either Party, the non-breaching Party may terminate this Agreement by giving the offending party thirty (30) days prior written notice of its intent of termination, which will be effective on the date of such termination, unless the breaching party corrects such violation within the thirty (30) day notice period or, if the violation is not capable of being cured within the thirty (30) day notice period, both Parties may agree in writing to extend the cure period, but not past the end of the prevailing Term of the Agreement.

 

MF & Co shall have the right, in its sole discretion, to discontinue the computation, administration, and release of the Index and, in the event the Index is discontinued, to terminate the Agreement with respect to the Index if MF & Co does not offer a sufficient replacement Index. In the event that MF & Co intends to discontinue the Index, MF & Co shall exercise reasonable effort to give Licensee as much advance written notice prior to discontinuance as practical, which notice shall specify whether a substitute to the Index will be available at the time the Index may be discontinued. Upon receiving notice of discontinuation of the Index, and MF & Co offers a sufficient replacement Index, Licensee shall have the option hereunder to notify MF & Co in writing of its intent to use the replacement index under the continuing terms of this Agreement for the remainder of the prevailing Term.

 

  • MF & Co may terminate this Agreement with respect to the Index if the enactment of any legislation or regulation that materially impairs MF & Co’s ability to administer, calculate, license, or offer the license rights set forth herein with respect to the Index under this Agreement. MF & Co will use reasonable effort to furnish Licensee as much advance written notice as possible in this instance of impairment.

  • Termination Rights and Responsibilities. Upon termination of this Agreement, Licensee shall immediately cease to have any rights to use the Index as prescribed in this Agreement, and shall immediately cease to cite, quote, or refer to any of the Index’s data, information, or Marks. Additionally, the following actions are required upon termination of this Agreement:

  • Data and Materials Deletion - Upon termination of this Agreement, Licensee shall delete from all its systems, computers, databases or any other form, any Index data and copyrighted information, or any products whose intellectual property rights belong to MF & Co. The Licensee shall declare and certify to MF & Co within thirty (30) days of the termination date of this Agreement that it has complied with all data deletion requirement specified herein.

  • Commercial Product Discontinuation – Upon termination of this Agreement, Licensee shall immediately cease to offer, distribute, or maintain any Licensee applications, products, or materials created, directly or indirectly, based upon the License(s) right to use the Index’s data and copyrighted information under this Agreement.

 

LICENSING FEES

 

Fees. Licensee shall pay MF & Co a Fee for the grants of License(s) herein based on the Subscription/License option purchased. Fees are paid in advance of access and usage.

 

Taxes. Fees are exclusive of sales and other taxes.

 

Billing; Payments; Late Fees.  If full Fee payment is not made when due, a charge equal to one and one-half percent (1½%) will be added to the balance due, not to exceed the maximum legal limit permitted by law.  If Licensee becomes thirty (30) or more days past due, Licensee’s access and right to use the Index will be automatically disabled until all past due charges are paid, and Licensee shall be in default of these Terms and Conditions.  Licensee will continue to be responsible for any monthly Fee due during any period that access and right to use is suspended.  If it becomes necessary for MF & Co to enforce these Terms and Conditions through an attorney, collection agency, or directly through small claims court, Licensee shall pay all MF & Co’s directly related attorney’s fees, agency fees, court costs, and other collections costs, including without limitation post-judgment costs for legal services at trial and appellate levels.  Delinquency may affect Licensee’s credit rating.

  • Audit Rights. Licensee shall keep complete and accurate records pertaining to the adherence of its Index usage rights in sufficient detail to permit the MF & Co to confirm Licensee compliance under the terms of these Terms and Conditions. MF & Co shall have the right to audit Licensee’s records for compliance, given sufficient reason to do so, and with not less than thirty (30) days advance written notice to Licensee.

  • Set-up Costs and Data Handling. Licensee shall provide its own equipment, technical expertise, and financial markets knowledge, and bear its own programming expenses, if any, related to retrieving, on-boarding, accepting, or utilizing Index data and copyrighted information from any medium MF & Co uses to domicile and/or deliver Index data and copyrighted information.

 

PROTECTION OF GOODWILL AND LICENSE VALUE

 

Protection of Goodwill. Licensee shall use its best efforts to protect the ongoing goodwill and public regard of the Index and MF & Co in connection with its use of the Index and Marks under these Terms and Conditions. Simultaneously, MF & Co shall use its best efforts to protect the ongoing goodwill and public regard of the Licensee in connection with its Licensing of the Index to the Licensee. As such, the following terms shall apply to the Parties under the terms of these Terms and Conditions:

 

Licensee shall submit to MF & Co for its preview and approval all Licensee’s Index-derived products and services’ proposed advertisement, brochure, and marketing/information material (together “Informational Materials”) templates, to be used on an ongoing basis, relating to, or referring to, the Index and its Marks, and MF & Co. MF & Co’s approval shall be solely limited to the use of, or description of, the Index and its Marks, and MF & Co. MF & Co’s decision of approval shall not be unreasonably withheld, and any such requests for MF & Co’s approval shall be furnished within three (3) business days of such request.

 

MF & Co shall submit to Licensee for its preview and approval of all MF & Co’s proposed products and services’ advertisement, brochure, and marketing/information material (together “Informational Materials”) templates, to be used on an ongoing basis, relating to, or referring to, the Licensee and the Licensee’s use of the Index. Licensees approval shall be solely limited to the use of, or description of, the Licensee and the Licensee’s use of the Index. Licensee’s decision of approval shall not be unreasonably withheld, and any such requests for Licensee’s approval shall be furnished within three (3) business days of such request.

 

In the case of Investment Vehicle licensing of the Index:

 

  • MF & Co is not, in any way, obligated to engage in any promotional activities, or obligated to make any representation to investors, in connection with any marketing conducted by Licensee for the Licensee’s Index-related Investment Vehicle.

  • Licensee acknowledges that MF & Co’s grant of licensing of the Index for Investment Vehicle purposes under these Terms and Conditions does not explicitly or implicitly express MF & Co’s approval of the Index-derived Investment Vehicle of the Licensee, and the Licensee further agrees not to furnish or promote any statement which expresses or implies that MF & Co approves, endorses, or consents to the Index-derived Investment Vehicle.

  • Protection of Proprietary Rights and Value of License. Licensee shall cooperate with MF & Co in the maintenance of all MF & Co’s legal rights in the Indexes and Marks, including copyrights and trade secrets, and shall take such reasonable measures for such protection purposes, including Licensee’s use of the following description when quoting, citing, and/or referencing the Indexes or Marks in any Informational Materials related to the Index:

    • The CRTx® index is the exclusive property of MF & Co, and has been licensed for use by [Legal Entity Name of Licensee].

 

Licensee acknowledges that the Index has been developed and administered by MF & Co via the utilization of expert methods, professional standards, and the considerable expenditure of work, time, and expense by MF & Co. Licensee further acknowledges that the Index and Marks are the exclusive intellectual property of MF & Co.

 

MF & Co reserves all rights with respect to the Index and Marks, except where rights are expressly licensed to Licensee under the terms and conditions of these Terms and Conditions.

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Parties shall treat each other’s Proprietary Information, including these Terms and Conditions, as confidential and shall not disclose or transmit any Proprietary Information of the other Party to a third party, except to the extent expressly permitted in these Terms and Conditions herein, or to the extent the information is available to the public, or otherwise available to the receiving Party from a source other than the providing Party. The terms of this paragraph shall survive the termination of these Terms and Conditions. All Proprietary Information shall be safeguarded by the receiving Party, as required by these Terms and Conditions, for a period of five (5) years from the date of disclosure to the receiving Party, with the exception that:

  • All Trade Secret information, including the Index and its data and copyrighted information, shall be safeguarded by receiving Party, as required by these Terms and Conditions, in perpetuity or for so long as such information remains a Trade Secret under the North Carolina Trade Secrets Protection Act (Chapter 66, article 24 of the North Carolina General Statutes).

  • Proprietary Information. The CRTx® Index Proprietary Information and Data, including all Index Bundled Products, is and shall remain, the sole and exclusive property of MF & Co and/or each individual Index Bundled Product provider (collectively the Index Bundled Suite). Client shall have only the limited rights with respect to the Index Bundled Suite, expressly granted in these Terms and Conditions, and all rights not expressly granted by MF & Co herein are reserved.  Client agrees that only MF & Co, and any respective Index Bundled Product provider, shall have the right to alter, maintain, enhance or otherwise modify the Index Bundled Suite data and information. Client shall not disassemble, decompile, manipulate or reverse engineer the Index Bundled Suite, and shall take all necessary steps to prevent such disassembly, decompiling, manipulation or reverse engineering of the Index Bundled Suite. Under no circumstances shall Client sell, license, publish, display, copy, distribute, or otherwise make available the Index Bundled Suite in any form or by any means, except as expressly permitted by these Terms and Conditions, including without limitation the transfer to a third party or, if not expressly prohibited by these Terms and Conditions.  MF & Co will take all reasonable steps, in accordance with the best industry practices, to protect the security of the Index Bundled Suite and to prevent unauthorized use or disclosure.  MF & Co is responsible for all access to and use of the Index Bundled Suite by MF & Co’s employees or agents or by means of MF & Co’s equipment or MF & Co’s usernames and passwords, whether or not MF & Co has knowledge of or authorizes such access or use. MF & Co shall be responsible for maintaining the confidentiality of all assigned usernames and passwords, and MF & Co shall be responsible for all charges relating to the use of said usernames and passwords whether or not authorized by MF & Co.

 

 

REPRESENTATIONS, WARRANTIES, INDEMNIFICATION & DISCLAIMERS

 

Representations and Warranties. MF & Co represents and warrants that MF & Co is the owner of rights granted to Licensee herein, and that use of the Index as described herein shall not infringe any trademark, service mark, copyright, other proprietary right, or contractual right of any person or legal entity not a participant to these Terms and Conditions. Further:

 

MF & CO HAS, AND WILL CONTINUE TO, OBTAIN CERTAIN DATA ELEMENTS FOR INCLUSION IN, OR FOR USE IN THE CALCULATION OF THE INDEX, FROM INDUSTRY-RECOGNIZED SOURCES WHICH MF & CO CONSIDERS TO BE RELIABLE. NEITHER MF & CO, NOR ANY OTHER PARTY, GUARANTEES THE ACCURACY AND/OR THE COMPLETENESS OF THE INDEX, OR ANY DATA ELEMENTS INCLUDED THEREIN. NEITHER MF & CO, NOR ANY OTHER PARTY, MAKES ANY REPRESENTATION OR WARRANTY, EXPLICITLY OR IMPLICITLY, AS TO THE OUTCOMES THAT WOULD RESULT FOR THE LICENSEE, LICENSEE’S CUSTOMERS AND COUNTERPARTIES, OR ANY OTHER PERSON OR LEGAL ENTITY, FROM THE USE OF THE INDEX OR ANY DATA AND INFORMATION INCLUDED THEREIN IN CONNECTION WITH THE RIGHTS GRANTED TO THE LICENSEE HEREUNDER, OR FOR ANY OTHER USE. NEITHER MF & CO, NOR ANY OTHER PARTY, MAKES ANY REPRESENTATION OR WARRANTY, EXPLICITLY OR IMPLICITLY, ABOUT THE SUITABILITY OF THE INDEX FOR ANY PARTICULAR PURPOSE. WITH REGARD TO THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL MF & CO, OR ANY OTHER PARTY, HAVE ANY LIABILITY FOR ANY CLAIMED OR UNCLAIMED, DIRECT OR INDIRECT, DAMAGES OR FINANCIAL LOSSES REGARDLESS OF ANY NOTIFICATION OF THE POSSIBILITY OF SUCH CLAIM FOR DAMAGES OR FINANCIAL LOSSES.

 

MF & Co represents and warrants that it has the authority to enter into these Terms and Conditions, according to the terms and conditions herein, and that its performance required under these Terms and Conditions does not violate any laws, regulations, or agreements applicable to it.

 

Licensee represents and warrants that it has the authority to enter into these Terms and Conditions, according to the terms and conditions herein, and that its performance required under these Terms and Conditions, does not violate any laws, regulations, or agreements applicable to it.

 

Neither of the Parties shall have any liability to each other for lost profits or consequential damages arising out of these Terms and Conditions.

 

Each Party respectively warrants that the Index, its licensing, and Licensee usage does not violate the intellectual property rights of a third party. Each Party in these Terms and Conditions will indemnify, defend, and hold each other Party harmless from, and against, any and all claims, losses, liabilities, costs and expenses attributable to any allegation of intellectual property infringement arising out of these Terms and Conditions (unless such allegation arises from actions or uses that are in violation of any term or condition expressly stated in these Terms and Conditions), provided that: (i) Each Party gives the other Parties to these Terms and Conditions immediate written notice of any such allegation, (ii) Each Party maintains full and complete control over the defense of any such allegation, and (iii) each Party cooperates fully with the other Party in the defense of any such allegation.  If the Index, its licensing, and Licensee usage becomes, or is likely to become, the subject of any claim or action that purports infringement, misappropriation or violation of the intellectual property rights of another person or entity, then the claimed, or potentially claimed Party, at its expense and option, may: (i) procure the appropriate rights in order to continue to perform properly under these Terms and Conditions, (ii) modify the claimed service or product in order to render it no longer subject to any such claim or action, or (iii) replace the service or product, or any portion thereof with an equally suitable, functionally equivalent, non-infringing form that is acceptable to the other Party. Only in relation to the Index and its licensing by MF & Co, if none of the foregoing is commercially practicable, either Party may terminate the Subscription/License and MF & Co will refund a pro-rata amount of any prepaid Fees hereunder.  THIS SECTION SETS FORTH THE FULL EXTENT OF EACH PARTY’S LIABILITY TO THE OTHER PARTY AND THE OTHER PARTY’S SOLE REMEDIES WITH RESPECT TO ANY THIRD-PARTY CLAIMS UNDER THESE TERMS AND CONDITIONS.

 

FORCE MAJEURE - Neither MF & Co nor Licensee shall bear responsibility or liability for any losses arising out of any delay in or interruptions of their respective performance of their obligations under these Terms and Conditions due to any act of God, act of governmental authority, act of the public enemy, or due to war, invasion, riot, fire, flood, civil commotion, insurrection, labor difficulty (including, without limitation, any strike, or other work stoppage or slowdown), or other cause beyond the reasonable control of either Party so affected, provided that the affected Party had exercised prior reasonable due diligence.

 

 

GENERAL PROVISIONS

 

  • Proprietary Marks. Neither Party will use, or permit their respective employees, agents, and subcontractors to use the trademarks, service marks, copyrighted material, logos, names, or any other proprietary designations of the other Party, or the other Party’s affiliates, whether registered or unregistered, without such other Party’s prior written consent. No breach, default, or threatened breach of these Terms and Conditions by either party shall relieve the other party of its obligations or liabilities under these Terms and Conditions with respect to the protection of the property or proprietary nature of any property which is the subject of these Terms and Conditions.

  • Entire Agreement.  These Terms and Conditions constitutes the entire Agreement between the Parties with respect to its subject matter herein, except where additional Agreement(s) are required, and supersedes any prior understanding or agreement, oral or written, relating to its terms and conditions. This Agreement may be amended or modified only by a writing signed by duly authorized officers of both parties.

  • Severability.  If any of the provisions of this Agreement becomes invalid, illegal, or unenforceable in any respect under any law, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.

  • Waiver; Modifications.  No waiver by either Party of any breach by the other Party of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of the same or any other provision hereof.  No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing.  No modifications of this Agreement shall be effective unless in writing and signed by both Parties.

  • Survival.  Any provision of this Agreement which contemplates performance subsequent to the expiration or earlier termination of this Agreement, or which expressly states that it shall survive termination of the Agreement, shall so survive such expiration or termination, and shall continue in full force and effect until fully satisfied.

  • Execution.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.  A signature on a copy of this Agreement received by either Party by facsimile is binding upon the other party as an original.  The Parties shall treat a photocopy of such facsimile as a duplicate original.  If this Agreement is executed in counterparts, no signatory hereto shall be bound until all Parties hereto have duly executed or caused to be duly executed a counterpart of this Agreement.  The individuals signing below represent that they are duly authorized to do so by and on behalf of the Party for whom they are signing.

  • Governing Law and Forum; Attorneys’ Fees.  The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the State of North Carolina applicable to agreements executed and to be performed solely within such State.  Each of the Parties agrees that it shall not seek a jury trial in any proceeding based upon, or arising out of, or otherwise related to this Agreement or any of the other documents and instruments contemplated hereby and each of the Parties hereto waives any and all right to such jury trial. The prevailing Party shall be awarded its reasonable attorney’s fees and costs in any lawsuit arising out of or related to this Agreement.

  • Relationship of Parties.  Neither Party is, nor shall be, a partner, joint venture, agent, or representative of the other Party solely by virtue of this Agreement. Neither Party has the right, power, or authority to enter into any contract or incur any obligation, debt, or liability on behalf of the other Party.

  • Assignment.  Neither Party may assign or transfer this Agreement, or any rights or obligations under this Agreement, without the prior written consent of the other Party, which shall not be unreasonably withheld, and any attempt to so assign or transfer this Agreement without such written consent shall be null and void.  It shall be considered reasonable to withhold assignment to an individual or entity which poses an Adverse Business Risk or Change of Ownership or Control.  For purposes of this Section, the following shall apply: (a) “Adverse Business Risk” shall include: any competing entity to the non-assigning Party; or entities with: (x) prior negative business dealings with the non-assigning Party, or (y) commercially unfavorable consequences to the non-assigning party; and (b) “Change of Ownership or Control” shall mean any transaction or series of transactions in which either Party merges with another entity or in which more than fifty percent (50%) of the voting stock or other voting securities or ownership interests of either Party, or all or substantially all of the assets of Party, are acquired by another entity (alone or in combination with its affiliates). To the extent any assignment is agreed to in writing by both Parties, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assignees.

  • Notices.  Any notice or other communication required or permitted under this Agreement shall be sufficiently given if delivered in person or sent by one of the following methods: (a) registered U.S. mail, return receipt requested (postage prepaid); (2) certified U.S. mail, return receipt requested (postage prepaid); or (3) commercially recognized overnight service with tracking capabilities. All notices must be sent to the address as shown on the signature page of this Agreement. Notices or communications shall be deemed properly delivered as of the date personally delivered or sent by mail or overnight service.

 

11. HOW TO CONTACT MF & CO

If User has any questions or concerns about these Terms of Use, please contact MF & Co:

Via email at: info@markfontanilla.com

Via written correspondence:

Mark Fontanilla & Co. LLC

255 MLK Blvd

Suite 2402

Charlotte, NC 28202

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