1. Your relationship with ETF MarketPro
1.1 Your use of ETF MarketPro’s web site is subject to the terms of a legal agreement between you and ETF MarketPro.
1.2 Unless otherwise agreed in writing with ETF MarketPro, your agreement with ETF MarketPro will always include, at a minimum, the terms and conditions set out in this document. These are referred to below as the “Universal Terms”.
1.3 Your agreement with ETF MarketPro will also include the terms of any Legal Notices applicable to the Services, in addition to the Universal Terms. All of these are referred to below as the “Additional Terms”. Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your use of, that Service.
1.4 The Universal Terms, together with the Additional Terms, form a legally binding agreement between you and ETF MarketPro in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
1.5 If there is any contradiction between what the Additional Terms say and what the Universal Terms say, then the Additional Terms shall take precedence in relation to that Service.
2. Accepting the Terms
2.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
2.2 You can accept the Terms by:
(A) clicking to accept or agree to the Terms, where this option is made available to you by ETF MarketPro in the user interface for any Service; or
(B) by actually using the Services. In this case, you understand and agree that ETF MarketPro will treat your use of the Services as acceptance of the Terms from that point onwards.
2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with ETF MarketPro, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.
2.4 Before you continue, you should print off or save a local copy of the Universal Terms for your records.
3. Provision of the Services by ETF MarketPro
3.1 ETF MarketPro is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which ETF MarketPro provides may change from time to time without prior notice to you.
3.2 As part of this continuing innovation, you acknowledge and agree that ETF MarketPro may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at ETF MarketPro’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform ETF MarketPro when you stop using the Services.
3.3 You acknowledge and agree that if ETF MarketPro disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
4. Use of the Services by you
4.1 In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to ETF MarketPro will always be accurate, correct and up to date.
4.2 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
4.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by ETF MarketPro, unless you have been specifically allowed to do so in a separate agreement with ETF MarketPro. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services.
4.4 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
4.5 Unless you have been specifically permitted to do so in a separate agreement with ETF MarketPro, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
4.6 You agree that you are solely responsible for (and that ETF MarketPro has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which ETF MarketPro may suffer) of any such breach.
5. Your passwords and account security
5.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
5.2 Accordingly, you agree that you will be solely responsible to ETF MarketPro for all activities that occur under your account.
5.3 If you become aware of any unauthorized use of your password or of your account, you agree to notify ETF MarketPro immediately at http://www.etfmarketpro.com//contact.html.
6. Privacy and your personal information
6.2 You agree to the use of your data in accordance with ETF MarketPro’s privacy policies.
7. Proprietary rights
7.1 You acknowledge and agree that ETF MarketPro owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
7.2 Unless you have agreed otherwise in writing with ETF MarketPro, nothing in the Terms gives you a right to use any of ETF MarketPro’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
7.3 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
8. Ending your relationship with ETF MarketPro
8.1 The Terms will continue to apply until terminated by either you or ETF MarketPro as set out below.
8.2 If you want to terminate your legal agreement with ETF MarketPro, you may do so by (a) notifying ETF MarketPro at any time and (b) closing your accounts for all of the Services which you use, where ETF MarketPro has made this option available to you. Your notice should be sent, in writing, to ETF MarketPro’s address which is available at http://www.etfmarketpro.com//contact.html.
8.3 ETF MarketPro may at any time, terminate its legal agreement with you if:
(A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
(B) ETF MarketPro is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(C) ETF MarketPro is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
(D) the provision of the Services to you by ETF MarketPro is, in ETF MarketPro’s opinion, no longer commercially viable.
8.4 Nothing in this Section shall affect ETF MarketPro’s rights regarding provision of Services under Section 4 of the Terms.
8.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and ETF MarketPro have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 14.6 shall continue to apply to such rights, obligations and liabilities indefinitely.
9. EXCLUSION OF WARRANTIES
9.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 9 AND 10, SHALL EXCLUDE OR LIMIT ETF MARKETPRO’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
9.3 IN PARTICULAR, ETF MARKETPRO, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
9.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
9.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ETF MARKETPRO OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
9.6 ETF MARKETPRO FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
10.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 9.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT ETF MARKETPRO, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY.. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
(II) ANY CHANGES WHICH ETF MARKETPRO MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(III) YOUR FAILURE TO PROVIDE ETF MARKETPRO WITH ACCURATE ACCOUNT INFORMATION;
(IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
10.2 THE LIMITATIONS ON ETF MARKETPRO’S LIABILITY TO YOU IN PARAGRAPH 10.1 ABOVE SHALL APPLY WHETHER OR NOT ETF MARKETPRO HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
11.1 Some of the Services are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
11.2 The manner, mode and extent of advertising by ETF MarketPro on the Services are subject to change without specific notice to you.
11.3 In consideration for ETF MarketPro granting you access to and use of the Services, you agree that ETF MarketPro may place such advertising on the Services.
12. Other content
12.1 The Services may include hyperlinks to other web sites or content or resources. ETF MarketPro may have no control over any web sites or resources which are provided by companies or persons other than ETF MarketPro.
12.2 You acknowledge and agree that ETF MarketPro is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
12.3 You acknowledge and agree that ETF MarketPro is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
13. Changes to the Terms
13.1 ETF MarketPro may make changes to the Universal Terms or Additional Terms from time to time. When these changes are made, ETF MarketPro will make a new copy of the Universal Terms available at http://www.etfmarketpro.com//terms-of-service.html and any new Additional Terms will be made available to you from within, or through, the affected Services.
13.2 You understand and agree that if you use the Services after the date on which the Universal Terms or Additional Terms have changed, ETF MarketPro will treat your use as acceptance of the updated Universal Terms or Additional Terms.
14. General legal terms
14.1 Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.
14.2 The Terms constitute the whole legal agreement between you and ETF MarketPro and govern your use of the Services (but excluding any services which ETF MarketPro may provide to you under a separate written agreement), and completely replace any prior agreements between you and ETF MarketPro in relation to the Services.
14.3 You agree that ETF MarketPro may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
14.4 You agree that if ETF MarketPro does not exercise or enforce any legal right or remedy which is contained in the Terms (or which ETF MarketPro has the benefit of under any applicable law), this will not be taken to be a formal waiver of ETF MarketPro’s rights and that those rights or remedies will still be available to ETF MarketPro.
14.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
14.6 The Terms, and your relationship with ETF MarketPro under the Terms, shall be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions. You and ETF MarketPro agree to submit to the exclusive jurisdiction of the courts located within the county of Somerset, New Jersey to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that ETF Market Pro shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
June 24, 2008