Effective as of January 1, 2014.
READ THIS AGREEMENT CAREFULLY.
1. Definition of Terms
As used in these Terms and Conditions of Use:
"NgTradeOnline," "we," "us," or "our" (whether or not
capitalized) mean NgTradeOnline, Inc. and its subsidiaries.
"NgTradeOnline Affiliate" means persons or entities who have provided products, licenses, or services to NgTradeOnline and persons or entities with which NgTradeOnline has entered into an agreement to sublicense or to provide NgTradeOnline Services to users.
"NgTradeOnline Services" means data backup services, websites (including without limitation, www.ngtradeonline.com), all other documentation, features, tools, NgTradeOnline Software, and any other services provided by NgTradeOnline or its authorized agents, distributors, and licensees.
"NgTradeOnline Software" means software provided to you or for your use by NgTradeOnline.
"Computer" (whether or not capitalized) means a desktop or laptop computer, network device, and any storage device attached to them in any fashion.
"Days" (whether or not capitalized) means calendar days.
"Personal Information" means information that you may provide at the time of registration or otherwise, such as name, physical location or address, IP address, e-mail address, employment, or similar information that identifies you as a specific individual.
To "Publish" documents or information means to provide to or make them accessible to you by mailing, emailing, desktop messaging, faxing, or delivering them to you, or by posting them to www.ngtradeonline.com or any other website you visit to register for, subscribe to, license, buy, or Use NgTradeOnline Services.
The "Subscription Period" for any license to use NgTradeOnline Services begins at purchase, regardless of the date of activation, and expires at the end of your specific purchased term. A specific purchased term may be monthly, yearly, multi-year or for another periodic metric. For example, if you are billed on a monthly basis, your Subscription Period is for the month billed.
To "Use" or "Using" NgTradeOnline Services means each time you visit a NgTradeOnline website, register with NgTradeOnline, download NgTradeOnline Software, use NgTradeOnline Software to encrypt or back up data, view the status of your Backup Data, store or restore Backup Data, access any Backup Data or request support.
"You," "yourself", "user," and "customer" (whether or not capitalized) refer to the individual or legal entity registering for or using the NgTradeOnline Services.
2. Acceptance of Terms and Conditions of Use; Modification; Cancellation
By registering to Use NgTradeOnline Services, and each time you Use a NgTradeOnline Service, you affirm your acceptance of these Terms and Conditions of Use and agree to comply with them now and throughout the period of your Use of the NgTradeOnline Services and thereafter, as noted in Section 6 (NgTradeOnline License to You; Renewals, etc.) below. If you do not agree to these Terms and Conditions of Use in their entirety, do not Use NgTradeOnline Services.
NgTradeOnline may change the Terms and Conditions of Use at any time, without prior notice to you, and in its sole discretion. The new or modified Terms and Conditions of Use will be effective immediately after we publish them on our website at www.ngtradeonline.com.
If you do not agree to be bound by NgTradeOnline’s Terms and Conditions of Use as Published by NgTradeOnline from time to time, your sole and exclusive remedy is to discontinue using NgTradeOnline Services.
If you wish to cancel your NgTradeOnline license after a change in the Terms and Conditions of Use, you must do so in writing or by email within thirty (30) days after your next Use of a NgTradeOnline Service following the change in the Terms and Conditions of Use. For this type of cancellation you will receive a pro-rata refund for the unused portion of your NgTradeOnline license as of your date of notice. You acknowledge and agree that if you do elect to cancel your license within this specified period after a change in the Terms and Conditions of Use, or if you cancel your license or fail to renew an expired or terminated license for any reason, NgTradeOnline may delete any information that NgTradeOnline has obtained through your Use of NgTradeOnline Services, including without limitation, your Backup Data, and NgTradeOnline will not have any Backup Data available for your Use.
3. Requirements for Registration or Use of NgTradeOnline Products
NgTradeOnline Services are intended and offered only for lawful Use by individuals or organizations with the legal capacity and authority under applicable law to enter into a contract for such services. NgTradeOnline does not offer NgTradeOnline Services to minors or where prohibited by law. By registering for and/or by Using NgTradeOnline Services, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the NgTradeOnline Terms and Conditions of Use and that you will Use NgTradeOnline Services only in accordance with these Terms and Conditions of Use and with all applicable laws. If an individual is registering or Using NgTradeOnline Services on behalf of an entity or organization, that individual warrants, represents, and covenants to NgTradeOnline that such individual is duly authorized to agree to these Terms and Conditions of Use on behalf of the organization and to bind the organization to them. If an individual uses NgTradeOnline Services that are provided by any third party including any person, entity or organization, the individual Using the NgTradeOnline Services, by virtue of such use, agrees that any information the individual provides to NgTradeOnline (including but not limited to the individual's Backup Data and Personal Information) will be accessible to, and may be viewed, changed, or deleted by the person, entity or organization that provided the NgTradeOnline Services to the individual.
You agree to provide accurate and complete information when you register for a NgTradeOnline Service and you agree to keep such information accurate and complete during the entire time that you Use NgTradeOnline Services.
We may ask you from time to time to establish a user name or password to access or Use the NgTradeOnline Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password.
4. Lawful Use of NgTradeOnline Services
You may not Use NgTradeOnline Services for any unlawful purpose.
Without limiting the foregoing:
(a) NgTradeOnline Services may not be Used for FRAUD or any other ILLEGAL activities
or the export or import regulations of other countries. You agree to comply strictly
with all such laws and regulations and acknowledge that you have the responsibility
to obtain licenses to export, re-export, or import as may be required.
5. Changes to the NgTradeOnline Services
NgTradeOnline has the right at any time to change, modify, add to, discontinue, or retire any NgTradeOnline Service and any aspect or feature of the NgTradeOnline Services including, but not limited to, the software, hours of availability, equipment needed for access or Use, or the availability of NgTradeOnline Services on any particular device or communications service.
NgTradeOnline will provide notice of material changes to the NgTradeOnline Services or changes to this Agreement by posting them to www.NgTradeOnline.com. NgTradeOnline shall have no obligation to provide you with notice of any such changes in any other manner. It shall be your responsibility to check our website periodically to inform yourself of any such changes.
NgTradeOnline may automatically update NgTradeOnline Services without your prior consent. If any automatic updates involve the payment of additional fees, we will provide you with the opportunity to approve such fees prior to the new functionality being enabled. If you fail or refuse to approve such fees, NgTradeOnline may, in its sole discretion, terminate your current license, continue to support your current NgTradeOnline Services without the automatic update, or replace your NgTradeOnline Services with other NgTradeOnline Services. If NgTradeOnline terminates your current license on account of your failure or refusal to approve such fees, then NgTradeOnline will not refund any amount on the remaining term of the current license, any fees related to the period during which you will not have access to your NgTradeOnline Services. If NgTradeOnline updates the NgTradeOnline Services without requiring an additional fee and you object to such change, your sole remedy shall be to terminate your use of the NgTradeOnline Services.
These Terms and Conditions of Use (including any documents incorporated by reference) constitute the entirety of the agreement between us and you concerning the subject matters discussed herein. This Agreement supersedes any prior written or oral representations, understandings, or agreements, and may not be modified except by the posting of changes to www.NgTradeOnline.com as provided in this Section 5. No written or oral statement, understanding, representation, or alleged agreement made outside the Terms and Conditions of Use posted to www.NgTradeOnline.com may be used to modify, interpret, add to, supersede, or construe the terms of this Agreement, except by means of a written agreement signed by an officer of NgTradeOnline.
6. NgTradeOnline License to You; Renewals, Modifications, Limits
(a) Scope of License. NgTradeOnline grants you a non-exclusive, non-transferable limited and revocable license to use the Services provided by NgTradeOnline for the period for which you have paid the applicable fees and from which you are licensed to access the NgTradeOnline Services, and to Use the NgTradeOnline Services for the sole and exclusive purposes of connecting to and Using the NgTradeOnline Services for your personal or internal business purposes in accordance with these Terms and Conditions of Use. We reserve all other rights to the NgTradeOnline Services.
You may not sub-license, or charge others to Use or access the NgTradeOnline Services and you may not redistribute the NgTradeOnline Services or provide others with access to or Use of them, unless you have entered into a separate Reseller Agreement or other agreement with NgTradeOnline that expressly authorizes you to engage in this activity. Without limiting the forgoing, you will not permit others to Use the NgTradeOnline Services to access or decrypt data stored on servers provided by NgTradeOnline or NgTradeOnline Affiliates; you will not Use or permit others to Use the NgTradeOnline Services to decrypt data encrypted by others; and you will not Use or permit others to Use the NgTradeOnline Services to provide encryption or decryption services to others, whether or not such services are compensated.
(b) Renewals. You agree that NgTradeOnline shall have the right to automatically and without notice renew your license to continue to Use the NgTradeOnline Services upon expiration of your then-current license, and that as part of such renewal NgTradeOnline shall have the right to charge the applicable renewal fees and any applicable taxes, which may be different than those you paid when you initially purchased or last renewed your license for NgTradeOnline Services to any credit card you used to purchase your then-current license. You agree that if you elect to not permit NgTradeOnline the right to automatically renew your license to Use NgTradeOnline Services or your credit card information on file with NgTradeOnline does not permit automatic renewal, then NgTradeOnline may terminate your license if you do not otherwise renew your license.
(c) Cancellation of Renewals.
You may cancel a renewal of a license only on the following terms:
You may not Use NgTradeOnline Services for any unlawful purpose.
If you elect to discontinue your Use of NgTradeOnline Services within this period, you will NOT be issued any refund for the amount of your license renewal.
All monies due NgTradeOnline for subscriptions which are paid in arrears, whether or not invoiced, are payable in full when invoiced.
Should you fail to pay amounts invoiced and due within seven (7) days of being invoiced, or should your payment be otherwise rejected or denied, then NgTradeOnline may at its sole discretion begin collection proceedings to recover any and all amounts due. Should NgTradeOnline elect to refer your past due obligations for collection proceedings you will also become responsible for any costs associated with said collections and shall pay NgTradeOnline the greater of the then permissible interest rate on the past due balance or 1.5% per month calculated and due on a monthly basis.
You are responsible for ensuring that NgTradeOnline has current and accurate records necessary, to renew your license, including without limitation, credit card data.
(d) Upgrades. NgTradeOnline may in its sole discretion provide automatic upgrades to the NgTradeOnline Services. These upgrades may not be consistent across all platforms and computers; and the performance and features offered by NgTradeOnline may vary depending on your computer and other equipment. You agree that we may automatically check your version of the NgTradeOnline Software and automatically update the NgTradeOnline Software on your computer. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related activities and services. If you shut down your computer or the NgTradeOnline Software during an automatic update or otherwise interfere with the installation of the update, the software may be damaged and/or cease to operate.
(e) Refunds. By purchasing a license, you acknowledge that you are aware that NgTradeOnline does not offer any refunds for purchases of NgTradeOnline Services.
(f) Duration of Agreement. You agree that you shall be bound by these Terms & Conditions of Use beginning on the earlier of when you first signup NgTradeOnline Services or when you first agree to the NgTradeOnline Terms and Conditions of Use until the later of the dates when (i) your license and any renewal thereof terminates, ii) your Backup Data is deleted, or iii) you have your last contact with NgTradeOnline for customer support.
7. Assignment and Delegation by NgTradeOnline
NgTradeOnline may, in its sole discretion, transfer or assign all or any part of its rights in the NgTradeOnline Software, the NgTradeOnline Services, and any license or contract related thereto, and may delegate all or any portion of its duties, if any, under any such NgTradeOnline Services, licenses, or other contracts.
8. No Transfers or Modifications by You
You may not sell, assign, grant a security interest in or otherwise transfer any right in the NgTradeOnline Services, nor incorporate them (or any portion of them) into another service. You may not copy the NgTradeOnline Services. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the NgTradeOnline Software or decrypt any files that are not associated with your computer.
You may not modify the NgTradeOnline Software or use it in any way not expressly authorized by these Terms and Conditions of Use. You may not obtain the communications protocol for accessing the NgTradeOnline Products. You may not authorize or assist any third party to do any of the foregoing.
9. Protection of Files
You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. You understand that the NgTradeOnline Services may back-up files that are no longer usable due to corruption from viruses, software malfunctions or other causes. This might result in you restoring files that are no longer usable.
10. Retention or Deletion of Personal Information
NgTradeOnline Software saves to a server operated by NgTradeOnline or a NgTradeOnline Affiliate an encrypted copy of each file you designate. The NgTradeOnline Software scans for changes or additions to these files and then periodically creates an encrypted copy of a modified or newly designated file. You will not be able to restore files that NgTradeOnline has not completed copying, files that have been changed but not yet been backed up, or files or folders or disc drives that are not eligible for back up. NgTradeOnline does not maintain a secondary copy of your data that you have Backed Up to our servers. Should your data be lost by NgTradeOnline we will undertake commercially reasonable efforts to create a replacement back-up from the files stored on your computer.
If your license to Use NgTradeOnline Services expires, is terminated, is not renewed, or is otherwise discontinued for any reason, NgTradeOnline and the NgTradeOnline Affiliates may, without notice, delete or deny you access to any of the Services provided by NgTradeOnline.
11. Customer Support
NgTradeOnline may, in its sole discretion, provide customer support or service to you. This service may be available only on selected days and during a limited number of hours. Service may also only be made available through certain delivery vehicles such as email or telephone and some services may only be available for the payment of an additional fee or charge. As part of the delivery of services, NgTradeOnline may employ a variety of tools to aid in the process of resolving your issues as a user. You grant NgTradeOnline the right to use these tools and hold NgTradeOnline harmless for the use of these tools as well as the guidance provided by its customer support staff who, you acknowledge, cannot be fully aware of all of the complexities associated with the NgTradeOnline Services, your computer, or all of the related or associated infrastructure that may affect the performance of your systems.
12. Restrictions on Access to NgTradeOnline Services
You may access NgTradeOnline Services only through the interfaces and protocols provided or authorized by NgTradeOnline. You agree that you will not access NgTradeOnline Products through unauthorized means, such as unlicensed software clients. You agree not to circumvent these limitations in any way, including but not limited to, changing file extensions or header information.
You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use NgTradeOnline Services. Without limiting the foregoing, you must pay all charges, taxes, and other costs and fees related to obtaining your own Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by you to access NgTradeOnline Services.
14. Termination and Fair Use Policy
NgTradeOnline SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF NgTradeOnline SERVICES TO USERS WHO ARE DEEMED BY NgTradeOnline TO BE USING THE NgTradeOnline SERVICES IN A MANNER NOT REASONABLY INTENDED BY NgTradeOnline OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER'S ACCOUNT WITH NgTradeOnline AND THE LICENSE TO USE THE NgTradeOnline SERVICES.
NgTradeOnline Services are designed to serve the needs of particular types of users, such as individual consumers.
NgTradeOnline may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of NgTradeOnline Services and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of NgTradeOnline Services may be deemed illegal if your usage greatly affects the security of others. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan or NgTradeOnline Service that will permit you to continue to use NgTradeOnline Services. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your license to Use NgTradeOnline Services and any license to use the NgTradeOnline Software, without prior notice in the event of a violation of this policy.
15. Data Collection, Privacy, and Disclosure
(a) WARRANTY. NgTradeOnline warrants that the NgTradeOnline Services will perform substantially as specified in the applicable NgTradeOnline documentation for a period of thirty (30) days from the date of registration or payment. If you satisfactorily demonstrate to NgTradeOnline within such thirty (30) day period that a NgTradeOnline Service contains errors, then as NgTradeOnline's sole and exclusive liability and as your sole and exclusive remedy, NgTradeOnline shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the NgTradeOnline Services affected with a substantially conforming service, or refund the fee you paid for the NgTradeOnline Service and terminate your license under the Terms and Conditions of Use. NgTradeOnline does not warrant the results of its correction or replacement NgTradeOnline Services. Correction or replacement under this Section 16 (Warranties), and the issuance of any corrections, patches, bug fixes, workarounds, upgrades, enhancements, or updates by NgTradeOnline to you, shall not be deemed to begin a new, extended, or additional license, Subscription Period, or warranty period.
(b) DISCLAIMER OF OTHER WARRANTIES. THE LIMITED WARRANTY IN THE PRECEDING PARAGRAPH IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. NgTradeOnline and the NgTradeOnline Affiliates do not warrant that the functions contained in the NgTradeOnline Services will meet your requirements, that the operation of the NgTradeOnline Services will be uninterrupted or error-free, or that defects in the NgTradeOnline Services will be corrected. NgTradeOnline and NgTradeOnline Affiliates do not warrant or make any representations regarding the use or the results of the use of the NgTradeOnline Services in terms of their correctness, accuracy, reliability or otherwise. NgTradeOnline and NgTradeOnline Affiliates do not represent or warrant that users will be able to access or use the NgTradeOnline Services at times or locations of their choosing, or that NgTradeOnline and NgTradeOnline Affiliates will have adequate capacity for any user's requirements. No oral or written statement, information or advice given by NgTradeOnline, NgTradeOnline Affiliates, or their respective employees, distributors, dealers, or agents shall create any warranties in addition to those express warranties set forth in this Section 16 (Warranties). You may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the warranty period.
17. Limitation of Liability
Neither NgTradeOnline nor any NgTradeOnline Affiliate assumes any liability to any party other than you arising out of your Use or inability to Use the NgTradeOnline Services. The limitations of damages set forth above are fundamental elements of the bargain between NgTradeOnline and you. NgTradeOnline would not be able to provide the NgTradeOnline Services to you without such limitations.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NgTradeOnline, NgTradeOnline AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, ARISING OUT OF YOUR USE OF THE NgTradeOnline SERVICES AND/OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND CONDITIONS OF USE.
Should you bear financial responsibility for payment to NgTradeOnline for NgTradeOnline Services or have otherwise made payment for NgTradeOnline Services, you agree to indemnify any Users of NgTradeOnline Services that you have paid for with respect to any and all matters. If you are a beneficiary of another party having paid for said NgTradeOnline Services, whether or not the paying party(s) is a user of NgTradeOnline Services, your sole source of recourse, for any and all claims, is to the party that bears financial responsibility to NgTradeOnline for NgTradeOnline Services.
NgTradeOnline RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. IN THAT EVENT, AND ONLY IN SUCH EVENT, YOU SHALL HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR NgTradeOnline IN THAT MATTER. If NgTradeOnline chooses to provide its own defense in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defense of NgTradeOnline and NgTradeOnline Affiliates, at your own expense, to the full extent requested by NgTradeOnline.
19. Trademarks, Service Marks, and Other Intellectual Property
All trademarks, service marks or other similar items appearing on the NgTradeOnline Service are the property of their respective owners, including, without limitation, NgTradeOnline, Inc.
The NgTradeOnline Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the NgTradeOnline Services and shall remain with NgTradeOnline and its licensors. You agree not to take any action to jeopardize, limit, or interfere in any manner with NgTradeOnline's or its licensor's ownership of or rights with respect to the NgTradeOnline Services.
20. U.S. Government Restricted Right
The NgTradeOnline Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the NgTradeOnline Software with only those rights set forth therein.
21. High Risk Activity
You acknowledge and agree that the NgTradeOnline Services are not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, and that NgTradeOnline makes no warranty and shall have no liability arising from any Use of the NgTradeOnline Services in any high risk or strict liability activities.
22. Dispute Resolution, Arbitration, Governing Law, and Venue
(a) Arbitration of Domestic (U.S.) Disputes. All disputes arising under or relating to this Agreement shall be resolved by final and binding arbitration conducted before a single arbitrator pursuant to the commercial arbitration rules of Resolute Systems, Inc. that were in force as of April 30, 2008. Evidentiary hearings and any other proceedings requiring personal attendance of parties or their representatives or witnesses shall be conducted in any U.S. city reasonably designated by the Licensee in the case of individual Licensees who procured the NgTradeOnline Services provided for by this Agreement primarily for non-commercial personal, family, or household purposes ("Consumer Licensees"), and in Boston, Massachusetts or such other place within the United States as the arbitrator may direct in the case of all other Licensees ("Commercial Licensees").
(b) Arbitration of International Disputes. Notwithstanding the provisions of Subsection 22(a) (Arbitration of Domestic Disputes), any dispute arising under this Agreement that involves a dispute between NgTradeOnline and a person who is neither a citizen nor a resident of the United States, shall, at either party's request, be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules, with such arbitration to be conducted in Singapore or such other place as the parties to such arbitration may agree.
(c) Exceptions to Agreement to Arbitrate. Notwithstanding the provisions of Subsections 22(a) (Arbitration of Domestic Disputes) and 22(b) (Arbitration of International Disputes), disputes pertaining to i) export controls, ii) unlawful Use of the NgTradeOnline Services, or iii) the scope, applicability, or compliance with governmental or court-ordered access to or limits on use of Backup Data, shall not be resolved by arbitration, but shall instead by resolved by reference to a judicial or administrative body with jurisdiction over the dispute.
(d) Costs of Arbitration. The administrative expenses, arbitrator fees, and facility charges associated with the arbitration, whether domestic or international, shall be split equally between the parties; provided that, in cases involving Consumer Licensees, the Consumer Licensee shall not be required to bear such expenses, fees, and charges in excess of One Thousand U.S. Dollars ($1,000), and NgTradeOnline shall bear the remainder of such expenses, fees, and charges. Each party shall be solely responsible for its attorney fees, expert witness fees, and other costs, fees, and expenses, except as may otherwise be provided in Section 18 (Indemnification).
(e) Discovery Procedures in Arbitration. The parties shall be entitled to such discovery as is appropriate in the judgment of the arbitrator, in light of the nature and objectives of arbitration and to ensure that each party has an adequate opportunity to determine the factual bases for its claims and defenses.
(f) Class Actions. Class actions and other procedural devices, however denominated, that allow pursuit in a single proceeding of claims of more than one claimant unrelated by blood or marriage shall not be permitted in the case of arbitrations hereunder involving either Consumer Licensees or Commercial Licensees or both.
(g) Form and Effects of Award. The arbitrator shall render a naked award. Judgment on any arbitral award under this Agreement may be entered in any court of competent jurisdiction. It is the intent of the parties that neither the award nor any resulting judgments have res judicata (claim preclusion) or collateral estoppel (issue preclusion) effects except as between the parties themselves.
All other provisions of this Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts, USA, without regard to conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods as well as any other similar law, regulation or statute in effect in any other jurisdiction shall not apply.
23. Termination, Expiration, Cancellation
(a) Trial and Evaluation Licenses. If this Agreement pertains to a trial, beta, or evaluation license (such as a license that provides a limited amount or an unlimited amount of back-up for free, for which you have not paid a fee and/or for which you do not pay a fee and associated taxes on or prior to expiration), the license granted under these Terms and Conditions of Use will terminate upon the expiration or cancellation of the trial or evaluation period, when the NgTradeOnline Service you are using is no longer made available, six (6) months from the date you first signed up for the NgTradeOnline Service, or when NgTradeOnline cancels or terminates the license, whichever is shorter. You agree to Use the NgTradeOnline Services for no longer than the trial or evaluation period unless you enter into another license and pay a license fee and associated taxes as applicable, or NgTradeOnline allows your license to roll over for another six (6) month period which NgTradeOnline may elect to do at its sole discretion and without notice to you.
(b) All Other Licenses; Limited Term. Your license will end upon the sooner to occur of (i) expiration of your Subscription Period, (ii) upon your non-renewal of the license, (iii) upon your cancellation of the license, (iv) when NgTradeOnline elects to discontinue the product, (v) upon your breach of these Terms and Conditions of Use (if such breach is not cured within the time indicated below in this Section 23 (Termination, Expiration, Cancellation), or (vi) when NgTradeOnline cancels or terminates your license, (any such expiration, cancellation, discontinuation, or termination are referred to hereafter as "termination").
(c) Termination for Unlawful or Abusive Use, Other Breach. NgTradeOnline may block your access to your Backup Data and/or terminate your Use of the NgTradeOnline Services if NgTradeOnline reasonably believes that the Backup Data may contain child pornography or is being used to support other types of illegal activities, if providing NgTradeOnline Services to a person located in a particular country would violate U.S. or other applicable law, or if your continued Use of NgTradeOnline Services may damage, disable, overburden, or impair our servers or networks.
If you breach these Terms and Conditions of Use, your right to Use the NgTradeOnline Services shall automatically terminate if you fail to cure the breach within seven (7) days after notice from NgTradeOnline or any of the NgTradeOnline Affiliates, unless your breach is due to violations of Section 4 (Lawful Use), Section 8 (No Transfers or Modifications by You), Section 18 (Indemnification), Section 19 (Trademarks), Section 20 (U.S. Government Restrictions), in which case termination will be without notice and without any right to cure.
Upon termination: i) you shall immediately cease any and all Use of the NgTradeOnline Services and delete all copies of them; ii) the NgTradeOnline Software may be disabled by NgTradeOnline without notice to you; and iii) you will no longer have the right to access or retrieve your Backup Data; you hereby grant NgTradeOnline at its sole discretion the unrestricted right to delete or retain all such Personal Information and Backup Data at any time after termination, without notice.
In the event of any termination, expiration, or cancellation, the restrictions on your Use of the Software and the other applicable restrictions as set forth in Section 4 (Lawful Use), Section 6 (NgTradeOnline License), Section 8 (No Transfers or Modifications by You), Section 16 (Warranties), Section 17 (Limitation of Liability), Section 18 (Indemnification),Section 19 (Trademarks, Service Marks, and Other Intellectual Property), Section 20 (U.S. Government Restricted Right), Section 21 (High Risk Activity), Section 22 (Dispute Resolution, Governing Law, Venue), Section 24 (Survival), Section 25 (Notice), Section 28 (Limitation on Actions), Section 30 (Miscellaneous) and Section 31 (Severability) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms.
Any notice that may or must be given by NgTradeOnline in connection with this Agreement or in connection with the Use of the NgTradeOnline Services, may be given by sending it to the email address provided by you upon registering for the NgTradeOnline Services or as you may provide from time to time thereafter by modifying your user profile at www.ngtradeonline.com. You are responsible for ensuring that your accurate email address is available to NgTradeOnline and provide any needed updates. NgTradeOnline may, in its sole discretion, use other means of providing notice, such as: desktop notification; regular, certified, or registered mail; fax; commercial delivery service; or messenger. All such notices shall be deemed given when dispatched with payment of delivery charges made or arranged. You hereby consent to receiving notice by any such means. Notwithstanding the foregoing, NgTradeOnline has no obligation to provide notice or attempt to locate a customer other than through the email address provided.
26. English Language
These Terms and Conditions of Use were negotiated and written in English. Any inconsistency between the Terms and Conditions of Use as expressed in English and any other language shall, to the full extent permitted by applicable law, be resolved by reference to the English version. Les parties ont convenu de rediger cette entente en anglais.
27. Entire Agreement; Applicability of Terms; Construction; Limit to Modifications; Conflicts in Terms
These Terms and Conditions of Use (including the items incorporated by reference and modifications that may be made from time to time), constitute the entire agreement between NgTradeOnline and you regarding NgTradeOnline Services, and supersedes all prior agreements between you and NgTradeOnline regarding the subject matters hereof.
Any item or service furnished by NgTradeOnline in furtherance of these Terms and Conditions of Use, although not specifically identified in them, shall nevertheless be covered by these Terms and Conditions of Use unless specifically covered by some other agreement entered into in written or electronic form between you and us.
Any modification or change in these Terms and Conditions of Use proposed or offered by you shall not become a part of these Terms and Conditions of Use unless accepted in a writing dated after the effective date of the applicable Terms and Conditions of Use and signed by an authorized officer of NgTradeOnline.
Should there be any conflict in terms between this Agreement and any other document, the terms and conditions set forth in this Agreement shall govern.
Any references that are singular or plural and any references that are masculine, feminine, or neuter in gender, are meant to be used interchangeably as the context of the sentence might imply.
28. Limitation on Actions
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law must be commenced within one year after the cause of action accrues.
29. Copyright Infringement Notification
As provided in the Digital Millennium Copyright Act of 1998, we have designated the following individual for notification of potential copyright infringement regarding Web sites hosted by NgTradeOnline: Customersupport@NgTradeOnline.com If you believe content hosted by NgTradeOnline infringes a copyright, please provide the following information to the person identified above (17 U.S.C. § 512): (i) A physical or electronic signature of the copyright owner or authorized agent; (ii) Identification of the copyrighted work(s) claimed to have been infringed; (iii) Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) Information regarding how we may contact you (e.g., mailing address, telephone number, e-mail address); (v) A statement that the copyright owner or its authorized agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and made under penalty of perjury, and, if an agent is providing the notification, a statement that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You agree to reimburse NgTradeOnline for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by NgTradeOnline.
NgTradeOnline is not responsible for misprints, errors or omissions in its advertising and promotional materials.
If you have designated a person (whether by email, orally, by registering such person with NgTradeOnline, by granting such person access to your username and password or by having your computer registered for NgTradeOnline Services where another party is paying for the backup of your files) to have access to your Backup Data, you hereby authorize NgTradeOnline to give such designated person access to your Backup Data, including without limitation in the event of your death or incapacity.
This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent underlying such provision and ii) such invalidity or unenforceability will not affect the validity or enforceability of any other provision of this Agreement and all such provisions shall remain in full force and effect.
32. No Waiver
The Company reserves its right to take all legal steps available to enforce these Terms and Conditions of Use. The Company’s failure to enforce these Terms and Conditions of Use in every instance in which they might apply, or the failure to require at any time performance of any provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions or of the Company’s rights to enforce such provisions. No waiver of any provisions of this or any other Agreement with the Company shall be effective unless expressly stated to be such in writing and signed by both parties.
33. Billing Process
Some licenses for NgTradeOnline Services are based on the number of computers registered, the volume of storage used, or both, as well as for ancillary or related services. Where your license fees are based in full or in part upon the amount of storage you use, your bill for NgTradeOnline Services will be based upon the greater of the storage amount shown on your computer or the storage amount maintained by NgTradeOnline, excluding the benefits of any data compression, file duplication or similar techniques performed by NgTradeOnline. The calculation of a storage bill will be based upon the price(s) for the NgTradeOnline Service licensed and may be based upon the average storage used during the Subscription Period, the storage as of the end of the Subscription Period, or another storage measure taken during the Subscription Period, depending on which services you have selected at the time of registration or renewal.
Should NgTradeOnline bill you for your NgTradeOnline Service on a monthly or periodic basis you agree that NgTradeOnline will bill you exclusively in full month or periodic increments and that there will be no billing for partial months or periods for any reason. Any amounts billed are fully due and payable at the time the bill is rendered to you.
34. Billing Issues
You must notify us about any billing problems or discrepancies within sixty (60) days after they first appear on the statement you receive from your bank or credit card company or other billing company. Send such notification to us at the NgTradeOnline Contact Information indicated in Section 35 (NgTradeOnline Contact Information) below. If you do not bring such problems or discrepancies to our attention within that sixty (60) day period, you agree that you waive the right to dispute such problems or discrepancies.
35. Managing Your NgTradeOnline Service
You acknowledge and agree that where NgTradeOnline licenses NgTradeOnline Services to an entity or organization, or where an entity or organization makes the NgTradeOnline Services available to you, the entity or organization so licensed or giving you access may grant multiple individuals rights related to the management and Use of the NgTradeOnline Services and the Backup Data, without any notice to you. These rights may enable one or more persons to: view, access or change Backup Data or Personal Information; determine who can access the account, Backup Data, and Personal Information; determine who is responsible financially for the account; and other similar actions.
36. NgTradeOnline Contact information
If you have any questions or comments, please contact us at support@NgTradeOnline.com. Although we strongly prefer email communication, you may also send regular postal mail to:
Quincy, MA 02169