End User License and Services Agreement
This End User License and Services Agreement ("Agreement") is a legal agreement between you and Toughturtle LLC, a New York limited liability company ("Toughturtle") with respect to your downloading and use of Toughturtle’s proprietary software application called the StockWatch App and any related Toughturtle products, software, services and websites that power or work in conjunction with the StockWatch App (referred to collectively as the "Services" in this Agreement and excluding any products, software, services or websites provided to you by Toughturtle under a separate written agreement).
By downloading the StockWatch App or using the StockWatch App or any of the other Services, you agree to this Agreement. You may not use the Services and may not accept this Agreement if (a) you are not of legal age to form a binding contract with Toughturtle, 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.
1. StockWatch App and Services.
The StockWatch App allows you to connect to our Services and to access certain third party data and services providers ("Data Providers") such as Yahoo!, CNN, Xignite, Google and/or Nasdaq. Access to and use of products and services made available by Data Providers is subject to their continued availability (over which Toughturtle has no control) and to the applicable terms of service and privacy policies for such products and services, which Toughturtle encourages you to review. This Agreement does not give you any rights not expressly and unambiguously granted herein.
2. No Support.
This Agreement does not entitle you to any support, upgrades, patches, enhancements, or fixes (collectively, "Support") for the Services, including the StockWatch App. Any such Support for the Services that may be made available by Toughturtle, in its sole discretion, shall become part of the Services and subject to this Agreement. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, hardware, software, and internet access. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services.
3. Provision of the Services by Toughturtle.
3.1 You acknowledge and agree that subsidiaries and affiliates of Toughturtle will be entitled to provide the Services to you.
3.2 Toughturtle is constantly improving in order to provide the best possible product for its users. You acknowledge and agree that the form and nature of the Services which Toughturtle provides may change from time to time without prior notice to you.
3.3 You acknowledge and agree that Toughturtle may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Toughturtle's sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Toughturtle when you stop using the Services.
3.4 You acknowledge and agree that if Toughturtle disables access to your device or devices, you may be prevented from accessing the Services, or any files or other content which is associated with your device or your use of the Services.
3.5 You acknowledge and agree that while Toughturtle may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Toughturtle at any time, at Toughturtle's discretion.
3.6 You acknowledge and agree that that Toughturtle may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Toughturtle's sole discretion, without prior notice to you and without remedy of any kind (including costs, monies, etc.). This includes the purchase price of the StockWatch App or any purchased upgrades. All sales of the StockWatch App and other Toughturtle software, products and Services are final. Use of the Services, by you or your device, is acknowledgment that you understand and agree that no refunds will be provided and no legal action will be taken by you, through a third-party or otherwise, to reclaim any monies or damages.
4. Use of the Services by you.
4.1 You agree to use the Services only for purposes that are permitted by (a) the Agreement 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).
4.2 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 Toughturtle, unless you have been specifically allowed to do so in a separate agreement with Toughturtle. You specifically agree not to access (or attempt to access) any of the Services through any automated means.
4.3 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).
4.4 Unless you have been specifically permitted to do so in a separate agreement with Toughturtle, you agree that you may not and will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
4.5 You agree that you are solely responsible for (and that Toughturtle has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which Toughturtle may suffer) of any such breach.
5.1 Toughturtle does not collect any personally identifiable information such as your name or address via the Services. Toughturtle collects other information that you provide or give us access to when you use the Services ("Non-Identifying Information"), which can include your device identification code (an alphanumeric string of characters that is specific to each Apple device), and user session data.
5.2 Toughturtle may engage third party companies and individuals to facilitate our Services, and to perform related services (e.g., without limitation, maintenance services, database management, analytics and improvement of the StockWatch App’s features) or to assist us in analyzing how our Services are used. These third parties may have access to information about your Non-Identifying Information. If they do, this access is only so that they may perform these tasks on our behalf and they will be obligated not to disclose or use it for any other purpose.
5.3 Toughturtle cooperates with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose any information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), to protect the property and rights of Toughturtle or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, unethical or legally actionable.
5.4 Your information may be transferred to, and maintained on, computers located outside of your state, province, country or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. If you are located outside the United States and choose to provide information to us, we transfer all information to the United States and process it there. Your consent to this Agreement followed by your submission of such information represents your agreement to that transfer.
5.5 Toughturtle may sell, transfer or otherwise disclose some or all of its assets, including information about you, to (i) its corporate affiliates, and (ii) in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.
5.6 The Services may link and/or contain advertisements linking to other third party websites or online service. We are not responsible for the content, security, or privacy policies of third party websites. No judgment, endorsement, or warranty is made with respect to other sites, their security, or the content they contain, and we take no responsibility for them.
6. Content in the Services.
6.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content".
6.2 You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to Toughturtle (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by Toughturtle or by the owners of that Content, in a separate written agreement.
6.3 Toughturtle reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any Content from any Service.
6.4 You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.
6.5 You agree that you are solely responsible for (and that Toughturtle has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which Toughturtle may suffer) by doing so.
7. Proprietary rights.
7.1 You acknowledge and agree that Toughturtle (or Toughturtle's licensors) own all legal right, title and interest in and to the StockWatch App and the other Services, including any intellectual property rights which subsist in the StockWatch App and the other 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 Toughturtle, nothing in the Agreement gives you a right to use any of Toughturtle's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
7.3 Other than the limited license set forth in Section 9, Toughturtle acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Toughturtle, you agree that you are responsible for protecting and enforcing those rights and that Toughturtle has no obligation to do so on your behalf.
7.4 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.
7.5 Unless you have been expressly authorized to do so in writing by Toughturtle, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
8. License from Toughturtle.
8.1 Toughturtle gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Toughturtle as part of the Services as provided to you by Toughturtle (referred to as the "Software" herein) on any iPhone, iPad, iPod Touch or future iOS products of Apple, Inc. ("Apple") that you own or control and as permitted by Apple’s Usage Rules set forth in Apple’s App Store Terms of Service. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Toughturtle, in the manner permitted by this Agreement.
8.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Toughturtle, in writing.
8.3 You may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
9. Content license from you.
9.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Service. By submitting, posting or displaying the Content you give Toughturtle a worldwide, perpetual, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute and otherwise exploit any Content which you submit or post on or through the Services in any manner or media whatsoever, now known or hereafter developed.
9.2 You agree that this license includes a right for Toughturtle to make such Content available to other companies, organizations or individuals with whom Toughturtle has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.
9.3 You understand that Toughturtle, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Toughturtle to take these actions.
9.4 You confirm and warrant to Toughturtle that you have all the rights, power and authority necessary to grant the above license.
The StockWatch App may communicate with the other parts of the Services and/or with Apple’s App Store to check for available updates, such as bug fixes, patches, enhanced functions, and new versions (collectively, "Updates"). By installing the StockWatch App, you hereby agree to automatically request and receive Updates from Toughturtle. Toughturtle may also have Updates available from time to time for your download and installation from the Apple App Store.
11. Ending your relationship with Toughturtle.
11.1 The Agreement will continue to apply until terminated as set out below.
11.2 If you want to terminate this Agreement, you may do so by permanently deleting all Software from your device(s), ceasing all access to and use of the Services, and notifying Toughturtle in writing at any time at the e-mail address set forth on the Toughturtle website available at http://www.toughturtle.com.
11.3 Toughturtle may at any time, terminate its legal agreement with you if:
(A) you have breached any provision of this Agreement (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this Agreement); or
(B) Toughturtle is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
© any Data Provider ceases to provide data related to the Services on terms acceptable to Toughturtle or ceases to provide such data at all; or
(D) Toughturtle 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
(E) the provision of the Services to you by Toughturtle is, in Toughturtle's opinion, no longer commercially viable.
11.4 Your rights under this Agreement will terminate automatically and irrevocably without notice from Toughturtle if you fail to comply with any term(s) of this Agreement.
11.5 Nothing in this Section shall affect Toughturtle's rights regarding provision of Services under Section 4 of this Agreement.
11.6 When this Agreement comes to an end, all of the legal rights, obligations and liabilities that you and Toughturtle have benefited from, been subject to (or which have accrued over time while this Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 18.7 shall continue to apply to such rights, obligations and liabilities indefinitely.
12. DISCLAIMER OF WARRANTIES.
12.1 NOTHING IN THIS AGREEMENT, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT TOUGHTURTLE'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.
12.2 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."
12.3 IN PARTICULAR, TOUGHTURTLE, 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,
© 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.
12.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND 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.
12.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOUGHTURTLE OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12.6 TOUGHTURTLE 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.
13. LIMITATION OF LIABILITY.
13.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 12.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT TOUGHTURTLE, 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, COST OF THIS SOFTWARE AND ANY FREE OR PAID UPGRADES, COST OF YOUR TIME WHILE USING THIS SOFTWARE, 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 TOUGHTURTLE 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. 13.2 THE LIMITATIONS ON TOUGHTURTLE'S LIABILITY TO YOU IN PARAGRAPH 13.1 ABOVE SHALL APPLY WHETHER OR NOT TOUGHTURTLE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
14. Copyright policies.
It is Toughturtle's policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate access to the Services by devices associated with repeat infringers.
15.1 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.
15.2 The manner, mode and extent of advertising by Toughturtle on the Services are subject to change without specific notice to you.
15.3 In consideration for Toughturtle granting you access to and use of the Services, you agree that Toughturtle may place such advertising on the Services.
16. Other content.
16.1 The Services may include hyperlinks to other websites or content or resources. Toughturtle may have no control over any websites or resources which are provided by companies or persons other than Toughturtle.
16.2 You acknowledge and agree that Toughturtle 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 websites or resources.
16.3 You acknowledge and agree that Toughturtle 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.
17. Changes to the Agreement.
17.1 Toughturtle may make changes to this Agreement from time to time. When these changes are made, Toughturtle will make a new copy of the Agreement available at http://www.toughturtle.com or through the affected Services.
17.2 You understand and agree that if you use the Services after the date on which the Agreement has changed, Toughturtle will treat your use as acceptance of the updated Agreement.
18. General legal terms.
18.1 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 Agreement does not affect your legal relationship with these other companies or individuals.
18.2 The Agreement constitutes the whole legal agreement between you and Toughturtle and governs your use of the Services (but excluding any services which Toughturtle may provide to you under a separate written agreement), and completely replaces any prior agreements between you and Toughturtle in relation to the Services.
18.3 You agree that Toughturtle may provide you with notices, including those regarding changes to the Agreement, by email, regular mail, or postings or Updates on the Services.
18.4 You agree that if Toughturtle does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Toughturtle has the benefit of under any applicable law), this will not be taken to be a formal waiver of Toughturtle's rights and that those rights or remedies will still be available to Toughturtle.
18.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
18.6 You acknowledge and agree that any company of which Toughturtle is the parent shall be a third party beneficiary to the Agreement and that such company shall be entitled to directly enforce, and rely upon, any provision of the Agreement which confers a benefit on (or rights in favor of) them. Other than this, and as otherwise set forth in Section 19.8 of this Agreement, no other person or company shall be third party beneficiaries to the Agreement.
18.7 The Agreement, and your relationship with Toughturtle under the Agreement, shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. You and Toughturtle agree to submit to the exclusive jurisdiction of the courts located within the county of Kings, New York to resolve any legal matter arising from the Agreement. Notwithstanding this, you agree that Toughturtle shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
19. Certain Provisions Regarding Apple.
19.1 The parties acknowledge that this Agreement is concluded solely between Toughturtle and you, and not with Apple. Toughturtle, not Apple, is solely responsible for the StockWatch App and other Services and the content thereof.
19.2 Any Support that may be offered by Toughturtle in connection with the Services is solely the responsibility of Toughturtle and it is acknowledged by the parties that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
19.3 The parties acknowledge that Apple has no obligation to furnish any warranty with respect to the Software. In the event of any failure of the Software to conform to any applicable warranty, if any, you may notify Apple, and Apple will refund the purchase price for the Software to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software.
19.4 The parties acknowledge that Toughturtle and not Apple is responsible for addressing product claims. Apple is not responsible for addressing any claims of any end-user or any third party relating to the Software or the end-user's possession and/or use of that Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
19.5 The parties acknowledge that, in the event of any third party claim that the Software or your possession and use of that Software infringes that third party's intellectual property rights, Toughturtle, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
19.6 You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
19.7 Complaints or claims with respect to the Software should be directed to Toughturtle at the following address:
19.8 The parties acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Revised: June 9, 2012