These Terms of Service apply to the executable code version of Mobile NDR.
1. Your relationship with NDRG
1.1 Your use of NDRG’s products, software, services and web sites (referred to collectively as the “Services” in this document and excluding any services provided to you by NDRG under a separate written agreement) is subject to the terms of a legal agreement between you and NDRG. “NDRG” means Ned Davis Research, Inc., whose principal place of business is at 600 Bird Bay Drive West, Venice, FL 34285, United States. You may also reach NDRG for comments and questions via telephone at 1-888-589-4580 or email at clienttechsupport@ndr.com. This document explains how the agreement is made up, and sets out some of the terms of that agreement.
1.2 Unless otherwise agreed in writing with NDRG, your agreement with NDRG will always include, at a minimum, the terms and conditions set out in this document. These are referred to below as the “Terms”.
1.3 The Terms form a legally binding agreement between you and NDRG in relation to your use of the Services. It is important that you take the time to read them carefully.
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 NDRG in the user interface for any Service; or
(B) by actually using the Services. In this case, you understand and agree that NDRG will treat your use of the Services as acceptance of the Terms from that point onwards.
3. Provision of the Services by NDRG
3.1 NDRG 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 NDRG 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 NDRG may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at NDRG’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform NDRG when you stop using the Services.
3.3 You acknowledge and agree that if NDRG 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 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).
4.2 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).
4.3 Unless you have been specifically permitted to do so in a separate agreement with NDRG, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
4.4 You agree that you are solely responsible for (and that NDRG 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 NDRG may suffer) of any such breach.
5. Privacy and your personal information
5.1 For information about NDRG’s data protection practices, please read NDRG’s privacy policy at http://www.ndr.com/invest/public/copyright.html. This policy explains how NDRG treats your personal information, and protects your privacy, when you use the Services.
5.2 You agree to the use of your data in accordance with NDRG’s privacy policies.
5.3 You agree that NDRG may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software.
6. Content in the Services
6.1 You should be aware that Content presented to you as part of the Services, including but not limited to all data, design, text, images, and charts or other data compilations or collective works are owned, except as otherwise expressly stated, by NDRG or one of their data providers and may not be copied, reproduced, transmitted, displayed, performed, distributed, rented, sublicensed, altered, stored for subsequent use or otherwise used in whole or in part in any manner without the prior written consent of NDRG.
6.2 You agree that you are solely responsible for (and that NDRG 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 NDRG may suffer) by doing so.
7. Proprietary rights
7.1 You acknowledge and agree that NDRG 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 NDRG, nothing in the Terms gives you a right to use any of NDRG’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
7.3 If you have been given an explicit right to use any of these brand features in a separate written agreement with NDRG, then you agree that your use of such features shall be in compliance with that agreement, any applicable provisions of the Terms, and NDRG's brand feature use guidelines as updated from time to time.
7.4 NDRG acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms 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 NDRG, you agree that you are responsible for protecting and enforcing those rights and that NDRG has no obligation to do so on your behalf.
7.5 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.
7.6 Unless you have been expressly authorized to do so in writing by NDRG, 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 NDRG
8.1 NDRG gives you a personal, non-transferable license to use this Software provided to you on your iPhone, iPad, or iPod touch, referred to below as "Mobile Device", by NDRG as part of the Content and Services as provided to you by NDRG. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by NDRG, in the manner permitted by the Terms.
8.2 This license may be used on any Mobile Device that you own or control and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions (the “Usage Rules”). This license does not allow you to use the Software on any Mobile Device that you do not own or control, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time.
8.3 Subject to section 1.2, 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 NDRG, in writing.
8.4 Subject to section 1.2, unless NDRG has given you specific written permission to do so, 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 Services.
10. Software updates
10.1 The Software which you use may periodically have updates available from NDRG provided through the Apple App Store. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.
11. Ending your relationship with NDRG
11.1 The Terms will continue to apply until terminated by either you or NDRG as set out below.
11.2 NDRG 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) you have terminated your subscription to NDRG's services; or
(C) you have reduced your subscription to NDRG's services below the level that permits the use of the Software on your Mobile Device; or
(D) NDRG is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(E) the partner with whom NDRG offered the Services to you has terminated its relationship with NDRG or ceased to offer the Services to you; or
(F) NDRG 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
(G) the provision of the Services to you by NDRG is, in NDRG’s opinion, no longer commercially viable.
11.3 Nothing in this Section shall affect NDRG’s rights regarding provision of Services under Section 3 of the Terms.
11.4 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and NDRG 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 17.6 shall continue to apply to such rights, obligations and liabilities indefinitely.
11.5 Upon termination of the license, you shall cease all use of the Software, and destroy all copies, full or partial, of the Sofware.
12. EXCLUSION OF WARRANTIES
12.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT NDRG’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, NDRG, 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.
12.4 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.
12.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NDRG OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
12.6 NDRG 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 NDRG, 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 NDRG 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;
(IV) YOUR FAILURE TO PROVIDE NDRG WITH ACCURATE ACCOUNT INFORMATION;
(V) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
13.2 THE LIMITATIONS ON NDRG’S LIABILITY TO YOU IN PARAGRAPH 13.1 ABOVE SHALL APPLY WHETHER OR NOT NDRG HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
14. Copyright and trade mark policies
14.1 It is NDRG’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 terminating the accounts of repeat infringers.
14.2 You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
15. Other content
15.1 The Services may include hyperlinks to other web sites or content or resources. NDRG may have no control over any web sites or resources which are provided by companies or persons other than NDRG.
15.2 You acknowledge and agree that NDRG 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.
15.3 You acknowledge and agree that NDRG 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.
16. Changes to the Terms
16.1 NDRG may make changes to the Terms from time to time. When these changes are made, NDRG will make a new copy of the Terms available at http://www.ndr.com/scrndr/ios_eula.html or will be made available to you from within, or through, the affected Services.
16.2 You understand and agree that if you use the Services after the date on which the Terms have changed, NDRG will treat your use as acceptance of the updated Terms.
17. General legal terms
17.1 The Terms constitute the whole legal agreement between you and NDRG and govern your use of the Services (but excluding any services which NDRG may provide to you under a separate written agreement), and completely replace any prior agreements between you and NDRG in relation to the Services.
17.2 You agree that NDRG may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
17.3 You agree that if NDRG does not exercise or enforce any legal right or remedy which is contained in the Terms (or which NDRG has the benefit of under any applicable law), this will not be taken to be a formal waiver of NDRG’s rights and that those rights or remedies will still be available to NDRG.
17.4 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.
17.5 You acknowledge and agree that each member of the group of companies of which NDRG is the parent shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them.
17.6 You acknowledge and agree that Apple, Inc., "Apple", and Apple’s subsidiaries, are third party beneficiaries of the Terms, and that, upon your acceptance of the Terms, Apple maintains the right to enforce the Terms as a third party beneficiary thereof.
17.7 Other than the companies mentioned in paragraphs 17.5 and 17.6, no other person or company shall be third party beneficiaries to the Terms.
17.8 The Terms, and your relationship with NDRG under the Terms, shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions. You and NDRG agree to submit to the exclusive jurisdiction of the courts located within the county of Sarasota, Florida to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that NDRG shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
18. Disclaimer Statement
18.1 The data and analysis contained herein are provided "as is" and without warranty of any kind, either expressed or implied. Ned Davis Research, Inc. (NDR), d.b.a. Ned Davis Research Group (NDRG), any NDRG affiliates or employees, or any third party data provider, shall not have any liability for any loss sustained by anyone who has relied on the information contained in any NDRG publication. All opinions expressed herein are subject to change without notice, and you should always obtain current information and perform due diligence before trading. NDRG or its affiliated companies or their respective shareholders, directors, officers and/or employees, may have long or short positions in the securities discussed herein and may purchase or sell such securities without notice. NDRG uses and has historically used various methods to evaluate investments which may, at times, produce contradictory recommendations with respect to the same securities. When evaluating the results of prior NDRG recommendations or NDRG performance rankings, one should also consider that NDRG may modify the methods it uses to evaluate investment opportunities from time to time, that model results do not impute or show the compounded adverse effect of transaction costs or management fees or reflect actual investment results, that other less successful recommendations made by NDRG are not included with these model performance reports, that some model results do not reflect actual historical recommendations, and that investment models are necessarily constructed with the benefit of hindsight. For this and for many other reasons, the performance of NDRG's past recommendations and model results are not a guarantee of future results. For data vendor disclaimers refer to www.ndr.com/vendorinfo. Further distribution prohibited without prior permission. Copyright 2012 © Ned Davis Research, Inc. All rights reserved.
19. Timing Statement
19.1 All data presented in the Service is delayed at least 20 minutes.
May 18, 2012