The SHIFT Search Platform (“Platform”) is provided by Vesica Technologies, Inc. (“Vesica”). This SHIFT Search Platform End User License Agreement (“User Agreement”) is a legally binding agreement between you and Vesica. The terms “we”, “us” and “our” refer to Vesica. You agree that your use of the Platform is subject to and governed by this User Agreement. You accept this User Agreement by checking a box that confirms your acceptance of this User Agreement and accessing the Platform.
Capitalized terms used in this User Agreement shall have the following meanings:
Access Methods: the unique user name and password that a User creates to access the Platform, if applicable.
Content: any text, images, data or information that you obtain through the Platform.
Intellectual Property: all intellectual property rights throughout the world, including any copyright, design, patents, trademarks, service marks, trade names, corporate names, database, applications for any of the above, moral rights, know-how, domain names or any other intellectual or industrial property (and any licenses in connection with any of them) whether or not registered or capable of registration and wherever subsisting in the world and in the Content that originates on or derives from markets regulated or operated by the Third Party Suppliers and in the compilation of Content gathered from other sources.
Platform: the web pages, apps, and Content that we make available to you for use from time to time.
Privacy Statement: Vesica’s online privacy statement, a copy of which is located on the Vesica website.
Services: The financial market data services that Vesica provides to its Users pursuant to this User Agreement.
Software: Software proprietary to Vesica and/or to Third Parties Suppliers and licensed to Vesica.
Third Party Services: Any Services or Content (including data, information, applications or other products and services) provided by a third party that may be displayed, included or made available by the Platform.
Third Party Suppliers: Those parties who supply any Services and/or Content or are licensors to Vesica of its Software.
User: any entity or individual who accesses the Platform via an Access Method in order to access the Services.
Vesica grants to you a revocable, non-exclusive, non-transferable, limited license to access and use the Platform strictly in accordance with the terms of this User Agreement. The license that is granted to you by us is solely for your personal, non-commercial use and purposes strictly in accordance with the terms of this User Agreement. The Platform and the Services provided through the Platform includes Software. Vesica and our Third Party Suppliers retain title and ownership to the Software and all copyright and other Intellectual Property therein. Your access to the Platform and receipt of the Services does not constitute a sale of the Software or any copy.
You agree not to, and you will not permit others to
(i) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Platform or make the Platform available to any third party
(ii) copy or use the Platform for any purpose other than as permitted in this User Agreement
(iii) modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Platform
(iv) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any terms of the software documentation, warranties, disclaimers, notices, marks or serial numbers on or relating to any copy of the Software; remove, alter or obscure any proprietary notice (including, but not limited to, any notice of copyright, trademark or other symbols) of Vesica or our affiliates, partners, suppliers or any licensors of Third Party Services;
e. bypass or breach any security device or protection used for or contained in the Software or Documentation;
f. input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
g. damage, destroy, disrupt, disable, impair, interfere with or harm in any manner the Software;
j. access or use the Software for purposes of competitive analysis of the Software, the development, provision, or use of a competing software product or service or any other purpose that is to Vesica’s detriment or commercial disadvantage; or
(v) use any Intellectual Property in any way which would infringe upon the rights of Vesica and its Third Party Suppliers.
We reserve the right to modify, suspend or discontinue, temporarily or permanently, the Platform or any Services, with or without notice and without liability to you. You understand and agree that nothing in this User Agreement shall be deemed to constitute an undertaking by us to continue to disseminate the Content in its present form or configuration. We may, from time to time, in our sole discretion, make modifications, enhancements or improvements to the features and functionality of the Platform and Services, which may include patches, bug fixes, updates, upgrades and other modifications. Updates may modify or delete certain features and/or functionalities of the Platform. You agree that we have no obligation to
(i) provide any updates, or
(ii) continue to provide or enable any particular features and/or functionalities of the Platform and Services to you. You shall bear all risks of failing to make concurrent modifications to your devices and equipment and you acknowledge and agree that neither Vesica nor its Third Party Suppliers shall be responsible if such changes affect your access to or use of the Platform in any way. Vesica does not provide any maintenance or support for the use of the Platform.
You agree that our Third Party Suppliers have the right to enforce the terms of this User Agreement and are specifically intended to be third party beneficiaries hereof.
You are authorized to use the Platform and to receive and use the Content and any information provided therein solely in accordance with this User Agreement. Any other use of the Content by you, including, but not limited to, retransmission or reprocessing, in whole or in part, is prohibited and you agree not to transmit, divulge, or publish any part of the Content or substance or in any way provide the information, or any part thereof, to any other person, which shall be defined as any natural person, proprietorship, corporation, partnership, or other entity whatsoever. You acknowledge and agree that as a condition of continued access to the Platform and receipt of Content from us, our Third Party Suppliers or any of their affiliates or agents, you shall not create, sponsor or permit the trading of financial instruments or investment products where the price, return and/or performance of such instrument or product is based on, related to, or intended to track, any index published by any of our Third Party Suppliers or financial instrument or investment product linked to an index published by any of our Third Party Suppliers without a separate written agreement with such third party for such purpose.
You may not share your Access Methods with any third party. You shall be solely responsible for maintaining the confidentiality of your Access Methods. You shall immediately notify us of any known or suspected unauthorized use(s) of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your Access Methods or credit card information. You are fully responsible for all usage and activity on your account, including, but not limited to, use of the account by any third party authorized by you to use your Access Methods. We reserve the right to cancel or deny access to any User who shares their account or, in its sole discretion, to any user without notice.
You further acknowledge and agree that:
(i) the security of your access to the Platform, including but not limited to the security and secrecy of your Access Methods, will at all times be your sole responsibility;
(ii) you have taken appropriate security measures to protect your Access Methods, computer systems and mobile devices; and
(iii) you will at all times maintain, appropriate protection against malicious software, including viruses, trojan horses, spyware, or any other computer code, files or programs, designed to disrupt, interrupt, disable, damage, destroy, limit the functionality of, infiltrate, or illicitly extract information from any device, software, system or telecommunications equipment.
Depending on the Services made available to you, we may ask you to represent whether you are subscribing under Professional or Non-Professional Status. If so, to qualify as a NonProfessional, you must warrant that you:
(i) are an individual neither
A. acting as a broker or dealer in the purchase or sale of negotiable financial instruments for third parties or registered or qualified in any capacity under any U.S. federal or state or Canadian or provincial securities or commodities trading law, rule or regulation, or the rules or regulations of any securities or commodities exchange, market or association; nor
B. engaged as an "investment advisor" or "investment banker" as defined in the Investment Advisors Act of 1940 of the United States (whether or not registered or qualified under that Act); nor
C. employed by a bank or other organization exempt from registration under federal, state or provincial securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt;
(ii) shall use the Information solely in connection with your own individual, personal investment activities and not in connection with any trade or business activities;
(iii) are over eighteen (18) years of age; and
(iv) are a party to this User Agreement in your own capacity and not on behalf of a firm, corporation, partnership, trust or association. You acknowledge and agree that if your status with respect to any of the foregoing statements is affected or changed in anyway, you shall promptly notify us. If any of the above do not apply but you are a professional broker, dealer or trader or employed by or conducting business in the securities industry, you will be designated as a Professional and you must agree to be bound by certain exchange and other subscriber agreements before utilizing such Services.
We reserve the right to deny access to the Platform and/or provide Services to any User who misrepresents its non-professional status in our sole reasonable discretion. If it is determined by us, or through any third-party audit by any of our Third Party Suppliers, that you have misrepresented your status as a non-professional, you accept and agree that we have the right to debit your credit card for the difference in any non-professional exchange fees remitted by you over the period of any third-party or internal audit and the amount of professional exchange fees which should have been remitted under professional status.
You acknowledge and agree that all information provided by you upon account registration is accurate and correct to the best of your knowledge. You consent to our right to monitor your use of the Platform and to collect and use data and related information through the Platform, including but not limited to information about your use of the Platform that may be gathered periodically to ensure compliance with this User Agreement, to facilitate the provision of updates, Services, and for other permitted purposes.
Any feedback, comments, ideas, improvements or suggestions (“Improvements”) provided to us by you with respect to the Platform, Services or Content shall remain the sole and exclusive property of Vesica and you hereby assign all right, title and interest in and to any Improvement to Vesica. We shall be free to use, copy, modify, publish, or redistribute your suggestions for any purpose and in any way without any credit or any compensation to you.
Subscription fees, if any, for the SHIFT Search Platform are set forth on our website and may be amended at our sole discretion from time to time without notice to you and are payable monthly or annually, as applicable, in advance. Payment shall be accepted by credit card for subscriptions.
If a trial period is offered, subscriptions are billed upon completion of the trial offer. You must cancel before your trial period has expired in order to prevent automatic and recurring billing of your subscription. If no trial period is offered, you will be billed upon registration and automatically each month or year, as selected, until you cancel. There is a limit of one trial offer per customer.
Certain Users may be offered a trial period by Vesica, which is subject to change at any time and without notice, which shall permit such Users to access the Platform five (5) times. On the sixth time you access the Platform, you will be required to complete your account registration to continue accessing the Platform. You agree to be bound by this User Agreement during the trial period and for any period thereafter for which a subscription is billed should you continue using the Platform. You must acknowledge and agree to this User Agreement prior to the start of your trial period.
You agree to our right to debit your credit card monthly or annually in advance for all Services provided to you to pay for any applicable fees. You may cancel at any time, subject to a 30- day cancellation policy. Both monthly and annual customers requesting cancellation must submit a cancellation request in writing via email to firstname.lastname@example.org prior to your renewal date. No refunds are permitted for annual subscriptions.
You shall be solely responsible for the payment of any taxes, charges or assessments imposed on you or Vesica, and any penalties or interest thereon, relating to the provision of the Services (except for any income taxes, if any, imposed on Vesica).
You understand and agree that the Platform is provided on an “as is” and “as available” basis. We make no warranty that the Platform will meet your requirements, achieve any intended results or meet any performance or reliability standards or that use of the Platform will be compatible or work with any other software, applications, systems or services, operate without interruption, meet or be error free or that any errors or defects can or will be corrected. We take reasonable efforts to ensure that the Platform and the Content provided by us is accurate and reliable; however, we do not guarantee that the Platform is accurate, complete or up-to-date nor do we make any warranty as to the results that may be obtained from use of the Platform or the accuracy or reliability of any information obtained through the Platform. We disclaim all representations, warranties or conditions of any kind, whether express, implied or statutory regarding the Platform and its Content, including any implied warranty of merchantability, fitness for a particular purpose, quiet enjoyment, noninfringement of third party rights and accuracy of data. Any reports and information provided on the Platform are prepared as of a particular date and time and will not reflect subsequent changes in market values or rates. Vesica is under no obligation to update or keep current the information contained in the Platform.
Without limiting the foregoing, neither Vesica nor any of our Third Party Suppliers makes any representation or warranty of any kind, express or implied:
(i) as to the operation or availability of the Platform, or the information, Content, and materials or products included thereon;
(ii) that the Platform or Software will be uninterrupted or error-free;
(iii) as to the accuracy, reliability, or currency of any information or content provided through the Platform; or
(iv) that the Platform, its servers, the Content, or e-mails sent from or on our behalf are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components. The information available through the Platform does not constitute investment advice and is not intended to be used as the basis for making investment decisions. Vesica does not provide any investment services or products or services or products intended for speculative purposes. The information provided on the Platform does not constitute an invitation or inducement to engage in investment activity of any kind. Vesica is not licensed with any federal or state regulatory authority as a registered investment advisor. We encourage every User to do their own research and to consult with their financial advisor prior to engaging in any investing activities, and to ensure that they understand all of the potential risks involved. Any investment decision that results in losses or gains made based upon any information on this, or any related Services, is not the responsibility of Vesica.
Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you or your rights. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law. To the extent any warranty exists under law that cannot be disclaimed, we shall be solely responsible for such warranty.
Our Privacy Statement sets out in detail how we collect, use and disclose personal information that we receive from you as a result of your use of the Platform, your rights with respect to such personal information and how you may contact us in the event that you have any questions or concerns with respect to your personal information. You acknowledge and agree that you have read, understood and agree to the Privacy Statement. The Privacy Statement, can be found on www.shifttech.com/privacystatement.
You agree to indemnify and hold Vesica, its directors, officers, employees, affiliates, partners, and agents (collectively, the “Indemnified Parties”) harmless from and for any damages, losses, costs and expenses incurred by the Indemnified Parties including any legal fees or expenses from claims arising out of or resulting from your
(i) negligent or fraudulent use of the Platform;
(ii) willful misuse of the Platform; or
(iii) breach of this User Agreement.
To the maximum extent permitted by applicable law, in no event shall we or our Third Party Suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever, including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Platform, third-party software and/or third-party hardware used with the Platform, or otherwise in connection with any provision of this User Agreement, even if we have been advised of the possibility of such damages and whether as a result of a breach of this User Agreement or otherwise, and whether such liability arises out of contract, warranty, tort, product liability or otherwise.
Notwithstanding any damages that you might incur, the entire liability of Vesica and any of our Third Party Suppliers under any provision of this User Agreement and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by you for the Platform or through the Platform.
Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you or your rights.
This User Agreement shall remain in effect until terminated by you or Vesica. We may, in our sole discretion, at any time and for any or no reason, suspend or terminate this User Agreement with or without prior notice. This User Agreement will terminate immediately, without prior notice from us, in the event that you fail to comply with any provision of this User Agreement. Upon termination of this User Agreement, you shall cease all use of the Platform and delete any and all copies of the Content from your devices.
Termination of this User Agreement will not limit any of our rights or remedies at law or in equity in case of breach by you of any of your obligations under this User Agreement.
Sections 1,3, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of this User Agreement will survive termination of the User Agreement for any reason.
If any controversy or claim, whether at law or equity, arising out of or related to this User Agreement, except those claims or controversies related to the enforcement or validity of Vesica’s intellectual property rights (“Non-IP Dispute”) arises, you and Vesica agree to attempt in good faith to resolve such dispute informally within sixty (60) days. In the event you and Vesica cannot resolve the Dispute informally, You and Vesica agree such Dispute shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration. The arbitration shall be conducted by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and the Supplementary Procedures for ConsumerRelated Disputes (the “AAA Rules”), and judgment on the award may be entered in any court of competent jurisdiction. The AAA Rules, including instructions for how to initiate arbitration, are available at https://www.adr.org. Any arbitration under this User Agreement will take place on an individual basis; class, mass, consolidated or combined actions or arbitrations or proceeding as a private attorney general are not permitted. You and Vesica each waives the right to trial by jury for Non-IP Disputes. You and Vesica further waive the ability to participate in a class, mass, consolidated or combined action or arbitration. Any arbitration will take place in New York county and will be determined by a single arbitrator. Any filing fee or administrative fee required of you by the AAA Rules shall be paid by you. The arbitrator will allocate the administrative costs and arbitral fees consistent with the applicable rules of the AAA. Reasonable attorney’s fees and expenses will be allocated or awarded only to the extent such allocation or award is available under applicable law. All issues are for the arbitrator to decide, except that issues relating to the scope, application, and enforceability of the arbitration provision are for a court to decide. The Federal Arbitration Act governs the interpretation and enforcement of this provision.
For all Non-IP Disputes concerning an amount less than fifteen thousand dollars ($15,000.00), the parties shall submit their arguments and evidence to the arbitrator in writing and the arbitrator shall make an award based only on the documents; no hearing will be held unless the arbitrator in his or her discretion, and upon request of a party, decides it is a necessity to require an in-person hearing.
Notwithstanding anything to the contrary in the AAA Rules, Vesica and you agree that the filing of arbitration, the arbitration proceeding, any documents exchanged or produced during the arbitration proceeding, any briefs or other documents prepared for the arbitration, and the arbitral award shall all be kept fully confidential and shall not be disclosed to any other party, except to the extent necessary to enforce this arbitration provision, arbitral award or other rights of the parties, or as required by law or court order. This confidentiality provision does not foreclose the AAA from reporting certain consumer arbitration case information as required by state law.
Any action, suit or proceeding for any claim or controversy, whether at law or equity, arisng out of this User Agreement related to Vesica’s Intellectual Property (IP Disputes) shall be brought in the courts of the State of New York or the United States District Court for the Southern District of New York. The parties hereto submit to the exclusive jurisdictions of such court.
Governing Law. This User Agreement is governed by the laws of the State of New York, without regard to the law of conflicts.
No assignment. The rights and obligations set out in this User Agreement may not be assigned or transferred by you without first obtaining our prior written consent. You agree that we will have the right to assign or transfer our rights and obligations under this User Agreement without your prior consent. Any attempt by you to assign this User Agreement without prior written consent shall be null and void.
Entire Agreement. The Agreement constitutes the entire agreement between us regarding your use of the Platform and supersedes all prior and contemporaneous written or oral agreements between the parties. You may be subject to additional terms and conditions that apply when you use or purchase other services of Vesica, which we will provide to you at the time of such use or purchase.
Modification of User Agreement. We reserve the right to change, amend or otherwise modify this User Agreement at any time. If we exercise this right, we will provide notice to you and/or post a revised version of the User Agreement on the Platform. Your continued use of the Platform constitutes your acceptance of such modification.
Severability; Waiver. If any provision in this User Agreement is held to be unenforceable by a court of competent jurisdiction, the remainder of the provisions will remain in full force and effect. The failure of a party to enforce its rights or to require performance under any provision of the User Agreement shall not constitute or be construed as a waiver of such provision, or of the right to enforce it at a later time.
Notices. For any notices that are required to be delivered under this User Agreement, we will send email notices to the last email address that you have provided to us through the Platform and you can send email notices to us at email@example.com. Email notice will be deemed delivered upon confirmation of delivery from the information system from which the communication was sent.