COMMERCE SIGNALS TERMS OF USE

The following terms of use (“Terms”) apply to and govern your use of the Commerce Signals service you are subscribing to.  Please carefully read these Terms, which form a binding agreement.  By clicking on the “accept” button below and/or a button or checkbox with similar designation that demonstrates acceptance of these Terms, or by accessing the service, you expressly accept and agree to these Terms, and further consent to the collection, use and transfer of data as outlined in the following privacy notice: https://www.commercesignals.com/privacy-notice/.

If you are an individual agreeing to these Terms on behalf of an entity, such as your employer, you represent and warrant that you have the legal authority to bind that entity.  “You” and “your” as used herein shall refer to such entity as well as you individually and each and all of your users and other beneficiaries of the service.  If you do not have such authority, or if you do not agree with these Terms, do not accept or access the service.

1. Agreement

If you have entered into a separate agreement with Commerce Signals for the particular service you are subscribing to, these Terms and such agreement (“Agreement”) shall be read in conjunction with each other, and together form a binding agreement.  In such event all references to the Terms shall be inclusive of both these Terms and such Agreement.

2. Terms Applicable to Free Access

2.1          Free Access:  Commerce Signals may offer you a free trial or other cost-free access to a service it offers for up to three months.  In such event Commerce Signals (i) will determine the scope, access and features of the service you will receive; and (ii) reserves the right to modify, cancel or adjust such offerings from time-to-time in its sole discretion.

2.2          Disclaimer of Liability:  Free access is offered “as-is” without warranty of any kind, and Commerce Signals assumes no risks, indemnity obligations or liabilities to you in connection therewith.

3. Terms Applicable to Paid Subscription

3.1          Paid Subscription:  If you subscribe to a service, the Agreement will set forth details of the service you will receive as well as rights and obligations in addition to those covered in these Terms.  Your subscription will commence on the earlier of the date specified in the Agreement or your initial access to the applicable service, and will continue thereafter for the initial term defined therein.  The subscription will automatically renew for successive periods of equal duration to the initial term.  Either party may terminate a paid subscription by giving the other party notice of its intent at least 30 days prior to the end of the term then in effect (e.g., the initial term or the renewal term).  In such event, the paid subscription will expire at the end of such term then in effect.

3.2          Payment Terms:  Promptly on execution of the Agreement, you will provide Commerce Signals with all necessary billing information.  Payment of subscription fees, in U.S. currency, plus any applicable taxes and other duties, will be due in advance of each the initial and all subsequent renewal terms within thirty (30) days of such date.  Late payments shall be subject to Commerce Signals’ costs of collection (including reasonable legal fees and costs) and shall bear interest at the rate of 1.5% per month (or part thereof), or at the maximum rate permitted by law, whichever is greater.  All subscription fees are non-refundable.  The fee for each renewal term shall be as set forth in the Agreement or, if not prescribed, at Commerce Signals’ then-current rates applicable to such service.

3.3          Warranty:  The service will operate in substantial conformity with the then-current version of the applicable documentation established by Commerce Signals.  As its sole obligation and your sole and exclusive remedy for any breach of the foregoing warranty, Commerce Signals shall use reasonable efforts to correct any material error in the operation of the service of which you notify it with 30 days of receipt of notification.  If Commerce Signals cannot correct such material error, then you may terminate the subscription upon thirty (30) days’ notice.

3.4          Disclaimer:  Commerce Signals does not warrant that the service (including the content therein) will be error-free or accurate.  Subject to applicable laws and except as provided herein, the foregoing is furnished “as is” without warranty of any kind, including the warranties of merchantability and fitness for a particular purpose and without warranty as to the performance or results you may obtain by using the service.  You are solely responsible for determining the appropriateness of using the service, and assumes all risks associated with its use.

4. Terms Applicable to Both Free Access and Paid Subscription

4.1          License:  Subject to your compliance with these Terms, Commerce Signals grants you a limited, revocable, non-transferable, non-exclusive right for you to access and use the applicable service solely for your internal business purposes.

4.2          Responsibilities:  You will remain principally responsible and liable for all acts and omissions of your users (including employees, employers, affiliates, agents and the like), and will cause such user to comply with the provisions of these Terms.

4.3          Restrictions:  You will not: (i) sublicense, rent, distribute, lease, sell, transfer, publish, disclose, display or otherwise assign, transfer or permit access to, in whole or in part, the service; (ii) change, alter or modify the service, attempt to defeat the copy-protect feature(s), create derivative works, translate, reverse assemble, reverse compile, disassemble, or reverse engineer the service, or develop substantially similar software, applications or competitive services; (iii) make any copies of the service, in whole or in part; (iv) modify, alter, delete or obscure any proprietary rights notices embedded into or affixed to the service; (v) provide link to the service to any third party and/or otherwise commercially exploit the service for the benefit of a third party; (vi) use the service for any unlawful activities, to surveil, track, target or profile individuals, or otherwise in excess of your license thereto; (vii) attempt to probe, scan or test the vulnerability of the service, breach the security or authentication measures of the service or attempt to render any part of the service unusable.

4.4          Suspension/Termination:  In the event of any breach or threatened breach of these Terms by you or your users, without limiting Commerce Signals’ other rights and remedies, it may immediately suspend your access to the service until the breach is cured or Commerce Signals reasonably believes there is no longer a threatened breach.  Commerce Signals may also suspend or terminate any service if required or believed to be required pursuant to court order, company compliance and/or legal concerns, or developments in applicable laws or regulations.  In addition, either party may terminate the subscription if the other party is in default of any material obligation, and such default is not cured within thirty (30) days after notice of the default to the defaulting party from the party seeking to terminate.  Provided such default is not cured, termination shall be effective at the end of the thirty (30) day cure period.

4.5          Effect of Termination:  Upon any termination or expiration of a subscription: (i) the license described in Section 4.1 shall immediately terminate; (ii) Commerce Signals will terminate your access to the service; and (iii) all provisions of these Terms which by their nature should survive shall survive termination or expiration, and remain in full force and effect, including such party’s obligations incurred prior to such termination or expiration.

4.6          Confidential Information:  Any information that is disclosed or otherwise made accessible by or on behalf of one party to the other, and which is designated in writing or identified as confidential or should be reasonably known to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure (collectively “Confidential Information”), shall be used by the recipient solely to the extent necessary to perform its obligations or exercise rights under these Terms.  Further, the recipient will (i) keep discloser’s Confidential Information confidential; (ii) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information); and (iii) make discloser’s Confidential Information available to persons authorized by these Terms only on a “need to know” basis provided such persons have executed similar agreements requiring them to maintain such information in strict confidence and use it only in order that the recipient may exercise its rights or perform its obligations in connection with these Terms.  For the avoidance of doubt, all information of, related to or derived from the service is the Confidential Information of Commerce Signals.

4.7          Exceptions:  Confidential Information shall not include information which: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the recipient, subsequent to disclosure by discloser; or (iv) recipient becomes aware of from a third party not bound by non-disclosure obligations to discloser and with the lawful right to disclose such information to recipient.  Notwithstanding the foregoing, nothing will prohibit recipient’s disclosure of discloser’s Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation provided that recipient first promptly notifies discloser of such requirement and allows discloser the opportunity, if possible and at discloser’s sole expense, to object to, narrow or limit such requirement or obtain a protective order covering the confidentiality of such Confidential Information.

4.8          Destruction/Return of Confidential Information:  Upon the request of discloser, but in any event upon termination or expiration of the subscription, recipient shall surrender to discloser all of the discloser’s Confidential Information, or at discloser’s sole discretion destroy all such Confidential Information and deliver to the discloser a certification that such destruction has occurred.

4.9          Intellectual Property:  All right, title and interest to the intellectual property belonging to Commerce Signals, including the service in whole or in part, shall remain at all times with Commerce Signals.  To the extent you retain or create any right, title or interest in any such intellectual property, you hereby irrevocably assign to Commerce Signals all right, title and interest in and to such intellectual property.

4.10        Equitable Remedies:  Each party agrees that its remedies at law for the other party’s infringement, misappropriation of, or other unauthorized use of a party’s Confidential Information and/or intellectual property may be inadequate, and each party agrees that the other may be entitled to equitable relief (including, without limitation, injunctive relief and specific performance) without the necessity of posting a bond or other security in addition to any other remedies available to such party.

4.11        Indemnification:  You agree to indemnify Commerce Signals and its affiliates, and hold them harmless from any damages, losses and costs (including, reasonable attorneys’ fees) related to third party claims or proceedings, arising out of or related to your use of the service and/or breach of these Terms, including your failure to comply with applicable law.  Commerce Signals agrees to indemnify you, and hold you harmless from any damages, losses and costs (including, reasonable attorneys’ fees) related to third party claims or proceedings asserting that the service as provided by Commerce Signals infringes such third party’s intellectual property rights.

4.12        Limitation of Liability:  In no event will either party be liable to the other party for any special, incidental, indirect, punitive or exemplary or consequential damages, or damages for loss of business, loss of profits, business interruption, or loss of business information arising from your use of the service, even if such party has been advised of the possibility of such damages.  Provided, however, no limitation or exclusion of either party’s liability will apply with respect to any claims arising out of or relating to unauthorized use by one party of the other party’s intellectual property or Confidential Information, any indemnification obligation, your obligation to pay fees, and/or a party’s willful misconduct or gross negligence.  Commerce Signals’ entire liability hereunder shall not exceed the amount of the subscription fees under the Agreement pursuant to which such liability pertains paid by you in the twelve (12) month period immediately preceding the event giving rise to the liability.

4.13        Audit:  Commerce Signals will have the right to audit you in order to verify: (i) performance by you of your obligations hereunder; and (ii) your compliance with applicable laws.  At no cost to Commerce Signals, you will co-operate with and provide to Commerce Signals such reasonable assistance as it requires in order to exercise the rights set out in this Section 4.13.

4.14        Additional Restrictions:  In addition to any other restrictions set forth herein, you shall not directly or indirectly use the service, including any derivative or part thereof, to provided services to any (i) company or individual listed as a Specially Designated national or blocked person on the U.S. Office of Foreign Asset Control; (ii) company or individual who is known to have been involved in fraud, or other unethical business practices; (iii) company or individual operating out of a residence (e.g., home-based business); (iv) any company or individual that is located outside of the United States or Canada or that will use such service outside of the United States or Canada; (v) marijuana dispensary; (vi) agency of a foreign government; (vii) weapons dealer, seller or distributor; and/or (viii) investment firm, company or fund.

5. General Terms

5.1          Notices:  All notices given hereunder must be in writing, sent to the address the other party may designate, by certified mail (return receipt requested), overnight courier, personal delivery or e-mail.

5.2          Delivery of Service:  Commerce Signals may utilize subcontractors, affiliates and other third parties to perform its duties related to the service.  Nevertheless, Commerce Signals remains responsible for all of its obligations under.

5.3          Governing Law:  These Terms and all related actions and proceedings will be governed by the laws of the State of New York and the United States without regard to conflicts of law provisions thereof.  The jurisdiction and venue for actions related to the subject matter hereof will be the state and United States federal courts located in White Plains, New York, and each party hereby submits to the personal jurisdiction of such courts.  The parties unconditionally waive any right to a jury trial for any claim or cause of action arising out of or relating hereto.

5.4          Severability:  In the event that any provision of these Terms is deemed by a court of competent jurisdiction, or by an arbitrator or arbitrators, to be overly broad in scope, duration or area of applicability, such court or arbitrator(s), as the case may be, will have the power, and is hereby directed, to limit such scope, duration or area of applicability, or all of them, so that such provision is not overly broad, and to enforce the same as so limited.  Subject to the foregoing, in the event that any provision hereof will be held invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid any other provision herein.

5.5          Publicity:  Commerce Signals may include you in its general listing of customers.  With the exception of the foregoing, neither party will directly or indirectly make any public statement or disclosure (including, without limitation, through any press releases, advertising, customer list, web page, blog or other promotional or marketing material of any kind) regarding the existence or content of, or relating to any matter or subject arising from, these Terms, or use either party’s name in public, whether explicitly or implicitly, without the approval of the other party.

5.6          No Partnership:  These Terms, and your use of the service, does not constitute a partnership or joint venture and nothing contained herein is intended to constitute, nor shall it be construed to constitute, the parties as partners, agents or co-venturers of each other.  Neither party shall have any power or authority to act in the name of or on behalf of or otherwise bind the other party.

5.7          Integration:  These Terms are the only agreement between the parties regarding the service, and supersede all prior agreements therefor.  Headings contained in these Terms are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision hereof.

5.8          No Waiver:  No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy.  A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.

5.9          Assignment:  You may not assign or transfer these Terms, in whole or in party, without the prior written consent of Commerce Signals.  Commerce Signals may assign these Terms to its affiliates or a party that buys it without your consent.

5.10        Revisions and Updates:  Commerce Signals reserves the right to revise these Terms at any time.  You are deemed to be apprised of and bound by any changes.

Last revised on January 13, 2023.