Subscription and License Agreement
1.
License. Market Alert grants you a nonexclusive
license to use the packaged market information services, related documents and
listings identified in Exhibit "A", subject to the following terms
and conditions.
2.
Proprietary
Protection and Restrictions. You acknowledge and agree that the
market information services and all other materials and services provided to
you by Market Alert are proprietary products of Market Alert protected under
the
You
may not use, copy, modify, or distribute the market information services or any
part of the Market Alert package of services including related documents except
as expressly authorized by Market Alert.
You
may not reverse engineer, reverse compile, or otherwise translate any part of
the Market alert web sites. If you use,
copy, modify, or transfer possession of any copy, adaptation, transcription, or
merged portion of the Market alert web sites, or any other part of the
information services provided by Market Alert, or any part of the related
documents to any other party in any way not expressly authorized by Market
Alert, your license will be automatically terminated.
You
acknowledge that, in the event of your breach of any of these provisions,
Market Alert will not have an adequate remedy in money or damages. Market Alert shall be entitled to obtain an
injunction against such breach from any court of competent jurisdiction
immediately upon request. Market Alert's
right to obtain injunctive relief shall not limit its right to seek further
remedies.
3.
Confidentiality. You agree to hold all parts of the
market information services and related documents in confidence for Market
Alert. You further agree not to make any
disclosures of the market information services provided by Market Alert
together with related documents (including methods and concepts utilized
therein) to anyone, except to your employees and to such other person(s) to
whom such disclosure is necessary to the use for which rights are granted
hereunder.
You
shall appropriately notify all employees and other persons to whom any such
disclosure is made that such disclosure is made in confidence and shall be kept
in confidence by them.
Your
obligations under this section of the Agreement shall not apply to any
information related to the market information services, and related documents
provided to you by Market Alert (including any method or concept utilized therein)
that:
(i)
is or becomes available without restriction to the general
public by acts not attributable to you, your employees, or such other person(s)
to whom disclosure has been made,
(ii)
was rightfully in your possession prior to disclosure by
Market Alert,
(iii)
is rightfully disclosed to you by a third party without
restrictions on disclosure, or
(iv)
is
developed independently by you
without reference or reliance on any process or method disclosed to you by
Market Alert.
4.
Publicity. You agree that you will not, without
prior written permission of Market Alert use in advertising, publicity,
packaging, labeling or otherwise any trade name, trademark, trade device,
service mark, symbol or any other identification or any abbreviation,
contraction or simulation thereof owned by Market Alert.
You
further agree that you will not represent directly or indirectly, that any
product or service of yours is a product of service of Market Alert or is made
in accordance with or utilizes any information or documentation of Market
Alert's.
5.
Limited
Warranty and Limitation of Liability. Market Alert
warrants, for your benefit alone, that Market Alert has the right to provide
the market information services, and related materials furnished to you
hereunder.
Market
Alert also warrants that the market information services conform in all
material respects to the specifications for the current version of the market
information services set forth in Exhibit "A".
Market
Alert is not responsible for obsolescence of the market information services,
or any related materials that may result from changes in your requirements.
Market Alert assumes no responsibility for the use of superseded, outdated, or
uncorrected versions of the Market Alert information services, or related
materials. Market Alert shall have no liability for loss of data or
documentation which may occur during the installation of removal of the Market
information services on your computer, it being understood that you are
responsible for reasonable backup precautions.
As
your exclusive remedy for any material defect in the elements of the Market
Alert service for which Market Alert is responsible, Market Alert shall attempt
through reasonable effort to correct or cure any reproducible defect by issuing
corrected instructions, a restriction or a bypass. In the event that Market Alert does not
correct or cure such nonconformity or defect after it has had a reasonable
opportunity to do so, your exclusive remedy shall be the refund of the amount
paid for service for that month. Market
Alert shall not be obligated to correct, cure, or otherwise remedy, or to
refund any fees of any kind to you, if any nonconformity or defect in the
market information services or other elements of the Market Alert service is
caused by any changes you have made whatsoever to the Market Alert web sites or
other elements of the service, or if you have not reported to Market Alert the
existence and nature of such nonconformity or defect promptly upon discovery.
EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, MARKET ALERT DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND
WARRANTIES WITH RESPECT TO THE MARKET INFORMATION SERVICES AND RELATED
MATERIALS, INCLUDING ITS CONDITION, ITS CONFORMITY TO REPRESENTATION OR
DESCRIPTION, THE EXISTENCE OF LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS
MERCHANTABILTY FOR A PARTICULAR USE.
NEITHER MARKET
ALERT OR ANY THIRD PARTY PROVIDER OF INFORMATION OR DATA MAKES ANY WARRANTY,
REPRESENTATION, OR GUARANTY AS TO THE SEQUENCE, ACCURACY, TIMELINESS OR COMPLETENESS OF THE SERVICE OR ANY MARKET INFORMATION NOR
DATA FURNISHED HEREUNDER. YOU AGREE TO
INDEPENDENTLY DETERMINE MARKET PRICES FOR TRADING PURPOSES THROUGH YOUR OWN
CUSTOMARY MARKETING CHANNELS. IN NO
EVENT WILL MARKET ALERT BE LIABLE TO YOU FOR ANY DAMAGE, LOSS PROFITS, OR OTHER
CONSEQUENTIAL DAMAGES AS A RESULT OF YOUR USE OF ANY MARKET INFORMATION
SERVICES, ADVICE, SERVICE OR EQUIPMENT PROVIDED TO YOU BY MARKET ALERT.
The
information (including news, prices, statistics, analyses and the like)
provided by Market Alert is compiled from and based on sources which Market
Alert considers reliable, but Market Alert makes no representation, warranty or
guarantee related in any way to such information.
The cumulative liability of Market Alert to you for all claims
relating to the Market Alert information services, and materials provided to
you by Market Alert under the terms of this Agreement, including any cause of
action sounding in contract, tort, or strict liability, shall not exceed the
total amount of all fees paid to Market Alert hereunder. This limitation of liability is intended to
apply without regard to whether other provisions of this Agreement have been
breached or have proven ineffective.
6.
Third Party
Wireless Communication. You agree to
provide Market Alert with the modem and personal identification number (PIN)
for any wireless communication device that you, your employees, or any other
person(s) may wish to use to receive information from Market Alert under the
terms of Market Alert's """" service (see Exhibit
"A" for service description).
Market Alert will not be responsible for providing equipment or airtime,
or for repairing, or maintaining in any way such wireless communication
equipment or services.
At
the time wireless communication service is initialized, Market Alert will
participate in good faith with you, your employees, and any other person(s) in
an endeavor to establish a communication link between Market Alert's
transmission source and the designated wireless communication provider's
receiving equipment. At no time will
Market Alert be required to customize any of Market Alert's equipment, market
information services, or services to comply exclusively with the transmission
requirements of any designated third party wireless communication provider.
In no event
will Market Alert be liable to you or to any other PERSON(s) for any delays or
interruptions in the delivery or the non-delivery of any market information,
data, or advice or for your or other any other PERSON(s) lost revenues, lost
profits or indirect, consequential, special or incidential damages, whether
challenged in contract, tort, or otherwise.
7.
Billing. All fees are
payable in advance.
(i)
Market Alert single user, master or subaccount
fees are due at the point that service is initialized and shall apply for a
period of 30 calendar days from the date of service initialization. Any subsequent service renewal fee(s) for
these services will be paid for a minimum service period of 30 calendar
days. Such fee(s) will be due at the
time of service renewal. If the service renewal day falls on a weekend or a
holiday, fee(s) will be due on the next regular business day.
Renewals
for a Market Alert master or subaccount subscription
may be, at your option, automatically debited against a credit card.
(ii)
Payment may be made for any Market Alert service
"on-line" at Market Alert's market information services site. Payment may be made by credit card or
check. Credit Card payments will be
immediately credited to your account.
SPECIAL NOTE: IF YOU CHOOSE TO PAY FOR ANY MARKET ALERT SERVICE BY CHECK,
PLEASE ALLOW AT LEAST SEVEN BUSINESS DAYS FOR YOUR CHECK TO BE RECEIVED BY
MARKET ALERT.
MARKET ALERT WILL NOT CREDIT ANY ACCOUNT PAID BY CHECK UNTIL MARKET ALERT IS PHYSICALLY IN
POSSESSION OF YOUR REMITTANCE.
(iii)
If you choose
to pay by check, you must pay for at least three months of service in advance.
(iv)
Invoices for any Market Alert service shall only be
available "on-line" at Market Alert's market information services
site. Those that require a physical
invoice to process payment may transmit the invoice to their internal printer
for duplication. Market Alert will fax
invoices to those that do not have the "in-house" capability to print
these forms.
8.
Cancellation. You may cancel service at any time by
sending written notification of cancellation to Market Alert
through the
Market
Alert, Inc.
2804
Regal Road
Fax: 972-964-3165
Market
Alert will return any unused fees to you by priority mail within two business days
of receipt of notice of cancellation.
The
refund check will be made payable you and will be mailed to the address that
appears in the “Personal Information” data provided to Market Alert by you at
the time of service initiation or which has subsequently been amended by you
unless otherwise directed in writing by you.
All
calculations to determine the unused portion of fees for a Market Alert master
or subaccount subscription will be based on a
30-calendar day month.
Upon cancellation, all rights granted to you under this Agreement will terminate and revert to Market Alert.
9.
Integration. This Agreement, which includes by this
reference Exhibit "A" hereto attached, sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges all prior discussions between them.
Neither of the parties shall be bound by any warranties, understandings
or representations with respect to such subject matter other than expressly provided
herein.
No
modifications of this Agreement shall be binding unless it is in writing and is
signed by an authorized representative of the party against whom enforcement of
the modification is sought.
10.
Applicable Law. The laws of
the State of
In
the event that any of the terms of this Agreement is or becomes or is declared
to be invalid or void by any court or tribunal of competent jurisdiction, such
term or terms shall be null and void and shall be deemed severed from this
Agreement and all the remaining terms of this Agreement shall remain in full
force and effect.
11.
Authorized Signatures.
By
the fact that the user has electronically accepted this Agreement thereby
acknowledging its terms, both parties agree that it is a binding Agreement upon
both them, even though it does not contain original signatures.
EXHIBIT "A"
1.
Description of
Services Offered.
Market Alert Subscription- available via
the Market Alert interactive Internet web site.
Market Alert offers user customized price change notices delivered to
the user's personal computer. These
notices are indexed to the frequency of price change for a menu of
instruments. Market Alert currently
offers price change notices for the "current coupon" Fannie Mae
(FNMA) and Ginnie Mae (GNMA) 30-year mortgage-backed
security, the Fannie Mae 15-year mortgage-backed security, and the Fannie Mae
7-year mortgage-backed security.
Mortgage-backed
security price updates occur on a real-time basis, allowing the user to get instantaneous
market updates.
The Market
Alert service shall also include the delivery, by email or fax, of one (1)
weekly copy of the market advisory letter "Larry Baer's
ViewPoint”. You are granted restricted authorization to
copy and redistribute to your employees, borrowers, Realtors, and builders,
under your own cover, an unlimited number of "Larry Baer's
ViewPoint"
advisory letters. All redistributed
copies must prominently and legibly acknowledge Market Alert's copyright.
You may not redistribute a copy of "Larry Baer's ViewPoint", in any form, to any entity not named
above, or to any affiliated organizations or subsidiaries in which you do not
own directly or indirectly at least a 51% interest.
A Market Alert
single user license is currently available for a price of $49.99 per month.
The Market
Alert master account service is currently available for a price of $87.96 per
month.
Market Alert Master Subscription
and sub-account authorization.
A Market Alert master subscriber includes
a minimum of three sub-accounts. A
Master Subscriber may add a fourth and subsequent sub-accounts at the current
monthly service rate of $22.44 per month. Sub-account users will be granted access to
the Market Alert interactive Internet web site under the Market Alert
subscriber's master account number. The elements of the Market Alert service
are available to those that access the system on a Market Alert sub-account
basis.
A Market Alert Master Subscriber may charge a Market Alert
sub-account user a fee for access to the Market Alert service. Any fee above that charged for a Market Alert
subaccount by Market Alert may be retained by the Market
Alert master subscriber.
The Market
Alert master subscriber may directly pay the subaccount
fee for each authorized user or may direct that each subaccount
user shall independently pay for service.
If the Market Alert master subscriber pays the service charge for a subaccount, the master subscriber, at any time and at their
sole discretion, may reassign subaccount authorization
to another user. The total number of
authorized subaccounts per master subscriber may
never exceed three. If the Market Alert
service is paid directly by the subaccount user, the Market
Alert master subscriber may only reassign subaccount
authorization at the subaccount service expiration
date.
A Market Alert
subaccount user will always have the option to become
a Market Alert master subscriber by paying the then current master subscriber
service charge.
Wireless
Communication surcharge for alphanumeric pagers. If
a user elects to receive their customized market updates via an alphanumeric
pager that user will incur a monthly surcharge of $10.00 for such service. If the user elects to receive their customize
market updates via a cellular telephone, no paging surcharge will be incurred.
If the user is
"logged-on" to the Market Alert browser the message will be sent to
the user's personal computer, if the user is not "logged-on", or if
the user fails to respond to the on-screen alert within five minutes, the
Market Alert system will automatically send the message to the user's wireless
communication device.
2.
Right to change service charges. Market Alert reserves the right to
change the fee structure for all Market Alert services at any time. Market Alert will provide the user a
thirty-day written notice of all such changes.
Notices will be delivered to the user by email.
3.
COMPUTER SYTEM
REQUIREMENTS.
Netscape
Version 4.61 or greater
- cookies and
JavaScript must be enabled
Microsoft
Internet Explorer Version 5.0 or greater
- cookies and
JavaScript must be enabled