Terms of Service
Effective Date: July 1, 2023
These terms and conditions are a legal agreement (this “Agreement”) between you (“You” or “Your”) and JENOVA LLC (“JENOVA LLC” or “we”, “us” or “our”), a Delaware corporation, establishing terms and conditions under which You may access and use the services and features available on JENOVA LLC’s stock valuation platform which is made available at https://www.jenova.ai/ and its subdomains and any related websites and subdomains which we may use from time to time ((the “Website(s)”), and may also be made available through downloadable mobile or other applications (“Apps”) which may be published by JENOVA LLC from time to time (the Website(s) and any such Apps, collectively the “JENOVA Platform”). The date You first agree to this Agreement is referred to herein as the “Effective Date.” Your use of the JENOVA Platform is also subject to our Privacy Policy, which is hereby incorporated into this Agreement. You acknowledge and agree that the JENOVA Platform is in an early stage of development and that the features and functionality of the JENOVA Platform are expected to change frequently.
BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON OR USING THE JENOVA PLATFORM, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I ACCEPT” AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE JENOVA PLATFORM.
FURTHER, THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND JENOVA LLC ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 8 “AGREEMENT TO ARBITRATE”).
This Agreement authorizes use of the JENOVA Platform solely in connection with investment decisions relating to your personal funds, and not on behalf of any investment fund, brokerage or financial services entity, or related person(s) or their clients. You represent and warrant that you will not use the JENOVA Platform on behalf of any such entity, person or client. Please contact us if you are interested in obtaining access to the JENOVA Platform on behalf of any entity or otherwise for any purpose other than investment of your personal funds.
1. JENOVA PLATFORM.
1.1 Access to and Use of the JENOVA Platform. Subject to the terms and conditions of this Agreement, JENOVA LLC hereby grants You, during the relevant subscription period for use of the JENOVA Platform agreed to in connection with Your registration for use of the JENOVA Platform (“Subscription Term”), a limited, revocable, non-exclusive, non-transferable right for You to access and use the JENOVA Platform, solely for Your personal, non-commercial use and not for the benefit of any other person or entity, and solely in North America. You are responsible for obtaining, deploying and maintaining all computer hardware, software, modems, routers and other equipment necessary for You to access and use the JENOVA Platform via the Internet. By accessing and using the JENOVA Platform, You acknowledge that You are located in North America.
1.2 Eligibility. In order to access and use the JENOVA Platform, You must be 18 years of age or older.
1.3 Registration; Login Credentials. You will be required to register with JENOVA LLC in order to access and use the JENOVA Platform. In order to register, You will be required to share certain information with JENOVA LLC (“Registration Information”). JENOVA LLC reserves the absolute and unrestricted right to reject or terminate Your registration for any reason in JENOVA LLC’s sole discretion. JENOVA LLC will enable You to create a user login and password for access and use of the JENOVA Platform (“Login Credentials”). You are responsible for maintaining the confidentiality of Your Login Credentials and for any and all access and use of the JENOVA Platform that occurs under Your Login Credentials. You agree to immediately notify JENOVA LLC of any unauthorized use of Your Login Credentials. You warrant, represent and covenant to JENOVA LLC that (i) all Registration Information shall be correct and complete when provided and that You shall update such Registration Information when errors are identified and (ii) You have the right to provide the Registration Information to JENOVA LLC for the purposes set forth herein, without misappropriation, violation or infringement of any third party intellectual property rights and the provision of such information complies with all applicable laws and regulations.
1.4 Restrictions. You shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the JENOVA Platform; (ii) modify, translate, or create derivative works based on any element of the JENOVA Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer Your rights to use the JENOVA Platform; (iv) use the JENOVA Platform for the benefit of any person or entity other than for Your benefit; (v) remove any proprietary notices from any content You receive through the JENOVA Platform; (vi) publish or disclose to third parties any evaluation of the JENOVA Platform without JENOVA LLC’s prior written consent; (vii) use the JENOVA Platform for any purpose other than its intended purpose; (viii) interfere with or disrupt the integrity or performance of the JENOVA Platform; (ix) use any ‘robots’, ‘spiders’ or other methods to extract or copy bulk content from the JENOVA Platform; or (x) attempt to gain unauthorized access to the JENOVA Platform.
1.5 Security. JENOVA LLC will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Registration Information. JENOVA LLC will exercise reasonable efforts to deploy corrections within the JENOVA Platform for security breaches made known to JENOVA LLC. However, You acknowledge that, notwithstanding the security precautions deployed by JENOVA LLC, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the JENOVA Platform and Your Registration Information. JENOVA LLC cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
1.6 Not Investment Advice. You understand and agree that: (i) JENOVA LLC does not provide investment advisory or other investment-related services to You or any other persons; (ii) JENOVA LLC does not recommend or advise You with respect to any decision to invest or not to invest in any issuers or instruments referenced on the JENOVA Platform; (iii) all information and content provided by JENOVA LLC on or through the JENOVA Platform are for illustrative or research purposes only and do not constitute investment, legal or tax advice, or an offer to buy, sell or hold any security; (iv) rankings and any forecasts or projections are estimates only, based upon numerous assumptions about future capital markets returns and economic factors, and as estimates, they are imprecise and hypothetical in nature, do not reflect actual investment results, and are not guarantees of future results; (iv) investing entails risk including the possible loss of principal and there is no assurance that investment in any will provide positive performance over any period of time; and (v) You should consult Your financial, tax, and accounting advisors before making any investment decisions.
1.7 JENOVA LLC’s Licensors, Data Providers and Service Providers. Certain information and content provided on or through the JENOVA Platform are provided by third party licensors, data providers and service providers. By using the JENOVA Platform, You acknowledge and agree that:
(a) Neither JENOVA LLC, its licensors, data providers or service providers, their affiliates nor any of their suppliers shall have any liability for the accuracy or completeness of the information or software furnished on or through the JENOVA Platform, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages;
(b) The information and content provided on or through the JENOVA Platform does not constitute investment advice and a reference to a particular investment or security, a credit rating or any observation concerning a security or investment provided on or through the JENOVA Platform is not a recommendation to buy, sell or hold such investment or security or make any other investment decisions;
(c) JENOVA LLC’s licensors, data providers or service providers, their affiliates or their suppliers have exclusive proprietary rights in certain information and content provided on or through the JENOVA Platform and any information and software received in connection therewith;
(d) You shall not use or permit anyone to use the JENOVA Platform or information or content provided on or through the JENOVA Platform for any unlawful or unauthorized purpose;
(e) The JENOVA Platform is being provided for Your internal use only and You are not authorized or permitted to distribute or otherwise furnish the JENOVA Platform, or information or content provided on or through the JENOVA Platform to any third party without prior written approval of JENOVA LLC or its licensors, data providers or service providers, as applicable;
(f) Access to the JENOVA Platform or information or content provided on or through the JENOVA Platform is subject to termination in the event that any agreement between JENOVA LLC and its licensors, data providers or service providers terminates for any reason;
(g) JENOVA LLC’s licensors, data providers or service providers may enforce their rights against You as third party beneficiaries of this Agreement, even though the licensors, data providers and service providers are not parties to this Agreement; and
(h) Certain information and content provided on or through the JENOVA Platform may be provided by Dun & Bradstreet. You agree to comply with all terms and conditions of Exhibit A with respect to any such information or content.
2. FEES AND PAYMENT.
2.1 Free Account. To the extent a subscription to the JENOVA Platform is made available to you at no charge, you acknowledge JENOVA LLC reserves the right, at any time and without prior notice, to discontinue provision of such free subscription and require purchase of a paid subscription for further use of the JENOVA Platform, in which event You agree to comply with the terms of Sections 2.2 through 2.4.
2.2 Subscription Fees. The JENOVA Platform user interface will identify the applicable fees for the use of the JENOVA Platform (“Subscription Fees”). You will be billed in advance on a monthly basis for the Subscription Fees. Except as otherwise specified at the time of Your purchase, subscriptions and Subscription Fees are non-cancellable during the Subscription Term. JENOVA LLC may change the Subscription Fees in its sole discretion at any time; provided that Subscription Fees for Your then-current Subscription Term will not change until the expiration of such then-current Subscription Term.
2.3 Payment Terms. Except as otherwise expressly set forth on the JENOVA Platform, You shall pay JENOVA LLC on a monthly basis for the ability to use the JENOVA Platform. You agree that we may automatically charge the payment method You have provided on a monthly basis, unless and until You cancel Your Subscription Term on the Website or any App. You represent that You have the legal right to use any payment method that You submit to us. You shall pay JENOVA LLC the amount due under any invoice within thirty (30) days of the date of invoice by such payment methods as are supported by JENOVA LLC at the time of payment. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction. All amounts paid to JENOVA LLC are non-refundable except as expressly set forth herein. Your payment and related payment information is managed through a third party payment processor, and JENOVA LLC is not responsible for such third party processor’s use of Your payment information.
2.4 Taxes. You shall pay all applicable sales, use and value-added taxes (except for taxes imposed on JENOVA LLC’s net income) with respect to the JENOVA Platform.
3. NO WARRANTIES; DISCLAIMERS.
The JENOVA Platform is provided “AS IS” without any warranties, express or implied. YOUR USE OF THE JENOVA PLATFORM IS AT YOUR OWN RISK. JENOVA LLC DOES NOT MAKE, AND TO THE FULLEST EXTENT PROVIDED BY LAW, HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND QUALITY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. JENOVA LLC DISCLAIMS ALL LIABILITY FOR THE LOSS OF DATA OR CONTENT ENTERED INTO OR SAVED IN THE JENOVA PLATFORM. JENOVA LLC FURTHER DOES NOT REPRESENT OR WARRANT THAT THE JENOVA PLATFORM WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE.
NONE OF THE CONTENT AVAILABLE THROUGH THE JENOVA PLATFORM CONSTITUTES RECOMMENDATIONS BY JENOVA LLC OR SOLICITATIONS OR RECOMMENDATIONS TO BUY OR SELL ANY SECURITY OR OTHER INVESTMENT PRODUCT. JENOVA LLC IS NOT PROVIDING ANY INVESTMENT ADVICE. YOU ARE SOLELY RESPONSIBLE FOR ANY INVESTMENT DECISIONS MADE BASED ON ANY SUCH CONTENT. JENOVA LLC SHALL NOT BE RESPONSIBLE FOR INVESTMENT DECISIONS, DAMAGES OR OTHER LOSSES RELATING TO USE OF THE JENOVA PLATFORM.
PAST PERFORMANCE DOES NOT GUARANTEE FUTURE PERFORMANCE. JENOVA LLC SHALL NOT BE CONSIDERED AN “EXPERT” UNDER THE SECURITIES ACT OF 1933. JENOVA LLC DOES NOT REPRESENT OR WARRANT THAT THE JENOVA PLATFORM COMPLIES WITH THE REQUIREMENTS OF THE NASD OR ANY SIMILAR ORGANIZATION OR WITH THE SECURITIES LAWS OF ANY JURISDICTION.
4. INDEMNIFICATION.
You shall indemnify and hold harmless, and at JENOVA LLC’s request defend, JENOVA LLC and its affiliates, licensors, data providers, service providers, successors and assigns (and its and their officers, directors, employees, contractors and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) Your use or alleged use of the JENOVA Platform (other than claims arising from JENOVA LLC’s breach of this Agreement); (b) any breach or alleged breach by You of any of Your covenants, representations or warranties set forth in this Agreement; or (c) your breach of any applicable law or regulation in connection with your use of the JENOVA Platform. You shall not settle any claim for which defense is sought under this Section 4 without the prior written approval of JENOVA LLC, which approval shall not be unreasonably withheld or delayed.
5. PROPRIETARY RIGHTS.
5.1 Ownership. You acknowledge that the JENOVA Platform and all content made available in connection therewith, and all related intellectual property rights, are the sole and exclusive property of JENOVA LLC and its licensors, data providers or service providers. Each party retains all other rights not expressly granted in this Agreement.
5.2 Feedback License. You hereby grant to JENOVA LLC, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under Your intellectual property rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the JENOVA Platform that You may provide from time to time, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in relation to the JENOVA Platform or any other products or services. Feedback is provided “as is” without warranty of any kind.
5.3 Usage Data. Notwithstanding anything else in the Agreement or otherwise, JENOVA LLC may monitor Your use of the JENOVA Platform for JENOVA LLC’s internal purposes, including to create data or information therefrom in an aggregate or de-identified manner, such as compilation of statistical and performance information related to the provision and operation of the JENOVA Platform. You agree that JENOVA LLC may make such data and information publicly available, and use such information to the extent and in the manner required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify You. JENOVA LLC retains all intellectual property rights in such data and information.
6. LIMITATION OF LIABILITY.
6.1 No Consequential Damages. JENOVA LLC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE JENOVA PLATFORM, EVEN IF JENOVA LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE JENOVA PLATFORM OR RESULTS THEREOF. JENOVA LLC WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
6.2 Limits on Liability. JENOVA LLC SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE JENOVA PLATFORM GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY YOU TO JENOVA LLC UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY JENOVA LLC TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT. YOU RELEASE JENOVA LLC AND ITS LICENSORS, DATA PROVIDERS AND SERVICE PROVIDERS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE JENOVA PLATFORM AND THIS AGREEMENT IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 6.2.
6.3 Third Party Liability. To the maximum extent allowable under applicable law, IN NO EVENT SHALL JENOVA LLC’S LICENSORS, DATA PROVIDERS or SERVICE PROVIDERS BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE, AND INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE JENOVA PLATFORM, EVEN IF they have BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.4 Essential Purpose. You acknowledge that the terms in this Section 6 are an essential basis of the bargain described in this Agreement and that, were JENOVA LLC to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 6 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
7. TERM AND TERMINATION.
7.1 Term. The term of this Agreement shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s) for the JENOVA Platform, unless earlier terminated as provided in this Agreement.
7.2 Termination. JENOVA LLC reserves the right to terminate this Agreement for any or no reason in its sole discretion at any time; provided that, in the event of such termination without cause, JENOVA LLC will provide a pro-rata refund to You of any pre-paid Subscription Fees for the then-current Subscription Term. Further, either party may terminate this Agreement (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.
7.3 Effects of Termination. Upon expiration or termination of this Agreement, (i) Your use of and access to the JENOVA Platform shall cease; and (ii) all fees and other amounts owed under this Agreement shall be immediately due and payable by You. JENOVA LLC shall have no obligation to maintain or provide Your Registration Information and may thereafter unless legally prohibited, delete Your Registration Information in its systems or otherwise in its possession or under its control.
7.4 Survival. This Section 7.4 and Sections 2 (Fees and Payment), 2.4 (No Warranties; Disclaimers), 4 (Indemnification), 5 (Proprietary Rights), 6 (Limitation of Liability), 7.3 (Effects of Termination), 8 (Agreement to Arbitrate) and 9 (Miscellaneous) shall survive any termination or expiration of this Agreement.
8. AGREEMENT TO ARBITRATE.
8.1 Arbitration. You agree that all disputes between You and JENOVA LLC (whether or not such dispute involves a third party) arising out of or relating to this Agreement, the JENOVA Platform and/or our Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language via teleconference or, if requested by You, in New York, New York, U.S.A., in each case under JAMS Streamlined Arbitration Rules and Procedures found at https://www.jamsadr.com/rules-streamlined-arbitration/, and You and JENOVA LLC hereby expressly waive trial by jury. You and JENOVA LLC shall appoint as sole arbitrator a person mutually agreed by You and JENOVA LLC or, if You and JENOVA LLC cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by JAMS upon the request of either party. Each party shall equally bear the costs of the arbitration, and each party will bear the cost of its own counsel. All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, either You or JENOVA LLC shall be entitled to seek injunctive relief, security or other equitable remedies from any court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with this Agreement (including without limitation Section 6) or to award punitive damages, including but not limited to pursuant to federal or state statutes permitting multiple or punitive awards.
8.2 Waiver of Class Actions. Any claims brought by You or JENOVA LLC must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither You nor JENOVA LLC will participate in a class action or class-wide arbitration for any claims covered by this Agreement. You hereby waive any and all rights to bring any claims related to this Agreement and our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on Your own behalf.
8.3 Opt Out. You may opt out of this agreement to arbitrate in this Section 8. If You do so, neither You nor we can require the other to participate in an arbitration proceeding. To opt out, You must notify us in writing within thirty (30) days of the date that You first became subject to this arbitration provision. The opt out notice must state that You do not agree to the agreement to arbitrate and must include Your name, address, phone number, Your Login Credentials to which the opt out applies and a clear statement that You want to opt out of this agreement to arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way You can opt out of the agreement to arbitrate. You must use this email address to opt out: contact@jenova.ai.
8.4 Survival. This Section 8 will survive the termination of Your relationship with JENOVA LLC.
9. MISCELLANEOUS.
9.1 Notices. You agree to the electronic delivery of notices.
9.2 Amendment; Waiver. We may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the JENOVA Platform user interface, is sent to the email address associated with Your account or otherwise; or (ii) when You opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
9.3 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
9.4 Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the State of New York as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Subject in all respects to Section 8, for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of New York.
9.5 Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
9.6 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; epidemic, pandemic, unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, act of terror, insurrection, riot, act of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused, and whether or not foreseeable as of the Effective Date.
9.7 Assignment. You may not assign Your rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without JENOVA LLC’s prior written consent. JENOVA LLC may assign its rights or obligations under this Agreement without Your prior written consent. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
9.8 Relationship of the Parties. JENOVA LLC is an independent contractor to You. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
9.9 Construction of Agreement. Each party acknowledges that it has had the opportunity to have legal counsel review this Agreement and to negotiate its terms and conditions. Should any questions of construction or interpretation of this Agreement arise, then the parties agree that no presumption shall be applied against the party drafting this Agreement or any portion thereof and that the language of this Agreement shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either party.
9.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
EXHIBIT A
D&B END USER AGREEMENT
1. You acknowledge that all information (the “Information”) furnished to you by Dun & Bradstreet, Inc. is licensed for the exclusive use of end users of the JENOVA Platform. Regardless of the form or format in which the Information is furnished, none of the Information may be made available in whole or in part to any third party. Notwithstanding the foregoing and in relation to your business from time to time, and only when it concerns excerpts of Information and where the provision of such Information is an integral aspect of the services that you provide as part of your normal business practice, you may provide excerpts of Information to the extent that the Information is combined with your own advice, recommendations, reports or any other materials that you compile or create in the course of your usual business activities (“Materials”), and you may display and provide Materials to third parties provided you shall not disseminate an amount of information which would cause the Information so used or disclosed to be susceptible to use substantially as an original source of or as a substitute for the product and/or services being licensed hereunder. You agree that the Information will not be reproduced, it being understood that the Information is licensed for your internal use only, except that you may make one copy solely for backup purposes. You agree that you will use the Information solely as one factor in your credit, insurance, marketing or other business decisions and you are expressly prohibited from using the Information as a factor in establishing an individual’s eligibility for (i) credit or insurance to be used primarily for personal, family or household purposes, or (ii) employment. You agree not to use the information to engage in unfair or deceptive practices.
2. Information furnished hereunder may be used throughout the continuous 12-month period commencing thirty (30) days from the effective date of this agreement. Upon expiration or termination of the license period, you shall immediately destroy all originals and copies of any D&B Information, unless you are otherwise instructed by D&B or JENOVA LLC; and upon request, provide D&B or JENOVA LLC with certification thereof. You represent and warrant that your use of any Information shall in all cases comply with all applicable federal, state and local laws and regulations.
3. YOU ACKNOWLEDGE THAT D&B AND ITS THIRD PARTY INFORMATION PROVIDERS MAKE NO REPRESENTATION OR WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY, COMPLETENESS, TIMELINESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION OR OF THE MEDIA ON WHICH THE INFORMATION IS PROVIDED. YOU ALSO ACKNOWLEDGE THAT EVERY BUSINESS DECISION INVOLVES THE ASSUMPTION OF A RISK AND THAT D&B, IN FURNISHING THE INFORMATION TO YOU, DOES NOT AND WILL NOT UNDERWRITE THAT RISK, IN ANY MANNER WHATSOEVER. YOU THEREFORE AGREE THAT D&B AND ITS THIRD PARTY INFORMATION PROVIDERS WILL NOT BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY D&B NEGLIGENT ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE INFORMATION.
4. YOU AGREE THAT D&B AND ITS THIRD PARTY INFORMATION PROVIDERS WILL NEVER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ALSO AGREE THAT D&B’S AND ITS THIRD PARITY INFORMATION PROVIDER’S AGGREGATE LIABILITY, IF ANY, FOR ANY AND ALL LOSSES, DAMAGES OR INJURIES WHICH YOU SUFFER OR INCUR ARISING OUT OF ANY ACTS OR OMISSIONS OF THE CAUSE OF THE LOSS, DAMAGE OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE AMOUNT YOU PAY JENOVA LLC WITH RESPECT TO THE SERVICES PROVIDED BY JENOVA LLC AND YOU COVENANT AND PROMISE THAT YOU WILL NOT SUE D&B FOR A GREATER AMOUNT. YOU ALSO AGREE TO GIVE D&B IMMEDIATE WRITTEN NOTICE OF ALL ACTIONS, CLAIMS, LOSSES OR DAMAGES ARISING OUT OF THE USE OF THE INFORMATION.
5. You acknowledge and agree that the copyright to the Information is and shall remain with D&B. You acknowledge that the Information, regardless of the form or format, is proprietary to D&B and comprises: (a) works of original authorship, including compiled information containing D&B selection, arrangement and coordination and expression of such information or pre-existing material it has created, gathered or assembled. You agree that you will not commit or permit any act or omission by your agents, employees or any third party that would impair D&B’s copyright or other proprietary and intellectual property rights in the Information. You also agree that you will not use any D&B trade name, trademark, service mark, logo or copyrighted materials in listing or advertising in any manner without the prior written approval of D&B. You shall reproduce D&B copyright notice and proprietary rights legend on all authorized copies of such Information.
6. These Terms of Agreement are in addition to those found in any JENOVA LLC service agreement and D&B is a third party beneficiary hereof.