1.1 Accounts. An Account (“Account”) is the mechanism by which Listing Company creates and manages its Listing on the Site. An Account may only manage one Listing, and a Listing Company may only establish one Account.
1.2 Available Functionality. The extent and functionality of options available for and for managing a Listing depends upon the type of Account the Listing Company establishes. The functionality listed below represents some examples of functionality associated with the different Account types; however, any or all of the listed functionality may not be available at this time or at any time, and IMB reserves the right to modify the functionality offered under any Account type upon notice to Listing Company. From time to time, IMB may provide additional functionality for certain Account types. When such functionalities become available, additional terms may be presented. Such terms are incorporated into this Agreement.
1.3 Account Types.
1.3.1 “Basic Membership” provides Listing Company control over its Listing, including company profile, name, symbol, exchange, industry and contact information.
1.3.2 “Premium Membership” provides Listing Company (a) control over its Listing, including company profile, name, symbol, exchange, industry and contact information, (b) a visually enhanced result in search results sets generated by searches at the Site, (c) content hosting and storage for company-related content as part of its Listing, such as press releases, SEC filings, financial data, stock quotes, charts, investor presentations, a calendar of events, audio and video podcasts, interviews, and a company blog, (d) 35,000 advertising impressions per month on Investorvillage.com, such links to be placed at the discretion of IMB, and (e) the right to use the Site’s intra-Site communication service to receive communications directly from Users of the Site.
1.3.3 Listing Company shall be permitted to upload content subject to space restrictions established by IMB and stream uploaded content subject to bandwidth restrictions established by IMB, both limits subject to change in IMB’s sole discretion.
2. Eligibility, Authorized Individual and Editorial Standards
2.1 Eligibility. IMB reserves the right in its sole discretion not to accept any company as a Listing Company. If IMB decides not to permit the establishment an Account on the Site for a Listing Company, IMB shall refund fees paid in connection with the Initial Term.
2.2 Authorized Individual.
2.2.1 Listing Company shall appoint an individual to maintain its Listing and take all necessary actions regarding the Listing, including but not limited to, updating the Listing (hereinafter referred to as the “Authorized Individual”). IMB reserves the right in its sole discretion to allow or disallow any individual to act as the Authorized Individual.
2.2.2 In the event Listing Company wishes to change or replace the Authorized Individual, Listing Company must notify IMB in writing and take all necessary steps to (a) block the former Authorized Individual’s access to its Listing and (b) grant the new Authorized Individual access to its Listing. IT IS LISTING COMPANY’S SOLE RESPONSIBILITY TO MAINTAIN CONTROL OVER ACCESS TO: (A) ITS LISTING, (B) ITS PASSWORD INFORMATION, AND (C) ITS COMPUTER SYSTEM. IMB is not responsible for any unauthorized access or changes to Listings.
2.3 Editorial Standards.
2.3.1 Listing Company is solely responsible for writing, updating and maintaining the information provided in its Listing. IMB reserves the right, but not the obligation, to review any Listing and, in its sole discretion, to reject or remove any Listing for any reason or no reason. However, IMB does not monitor or screen any information provided to the Site.
2.3.2 Listing company must not post or cause to be posted investor relations material prior to its proper dissemination under Regulation Fair Disclosure, 17 CFR 243.100-103, promulgated by the Securities and Exchange Commission.
3.1.1 In order to open an Premium Account, Listing Company must provide billing and related information (“Listing Information”), including a valid Visa, MasterCard or American Express credit card number (“Company Credit Card”) or be approved by IMB to pay via invoice. In the event that billing information changes, Listing Company shall notify IMB in writing before the next payment becomes due and provide updated billing information.
3.1.2 Listing Company shall be billed monthly (each such period a “Billing Cycle”). Listing Company is obligated to pay all applicable charges under this Agreement, including but not limited to applicable taxes or other charges imposed by any government entity.
3.1.3 IMB reserves the right in its sole discretion to change the fees for Account types. In the event fees change, IMB will provide Listing Company with email notice ten (10) days prior to such change being implemented. If Listing Company does not terminate this Agreement prior to the expiration of the ten days, Listing Company will be deemed to have accepted the change.
3.1.4 Upon termination or expiration of this Agreement, Listing Company shall promptly pay IMB all monies due hereunder.
3.1.5 IMB reserves the right in its sole discretion to remove Listings and/or cancel Accounts for non-payment. Payment of Monthly Fees does not guarantee Listing Company’s Listing will remain on the Site if such Listing is deemed to be in violation of this Agreement.
3.1.6 All payments made under this Agreement are non-refundable, except as provided in herein in Section 2.1.
3.2 Payment By Credit Card.
3.2.1 Listing Company and you, individually, represent and warrant that you have the right and are authorized to use the Company Credit Card and that the billing and related information provided to IMB is accurate and truthful. Listing Company and you, individually, understand and agree that IMB may seek a pre-approval from the bank that issued the credit card prior to when payment is due for an amount that shall not exceed the value of such payment, as applicable, plus an estimated allowance for any applicable taxes and other applicable charges.
3.2.2 BY PROVIDING A CREDIT CARD NUMBER AND RELATED BILLING INFORMATION TO IMB IN CONNECTION WITH A LISTING, LISTING COMPANY AUTHORIZES IMB TO CHARGE ITS CREDIT CARD FOR ALL AMOUNTS THAT BECOME DUE UNDER THIS AGREEMENT (E.G. MONTHLY FEES) WITHOUT FURTHER OR PRIOR NOTICE TO LISTING COMPANY, UNLESS IMB CHANGES THE MONTHLY FEE PURSUANT TO SECTION 3.1.3 OF THIS AGREEMENT. If for any reason Listing Company has not authorized charges to be made to its credit card or the credit card issuer does not pay IMB for charges, IMB reserves the right to suspend or terminate this Agreement.
3.2.3 The fee charged monthly will hereinafter be referred to as a “Monthly Fee.” IMB will charge the Monthly Fee to the Company Credit Card in advance on the Agreement Date (defined below) for the upcoming Billing Cycle.
3.3 Payment By Invoice. If Listing Company receives approval from IMB to pay by invoice, it will be billed the Monthly Fee in advance via an invoice emailed to the email address provided during the Account set-up process. Payment will become due and payable within fifteen (15) days of the date of the invoice. If payment is not made within such 15 day period, IMB shall have the right to charge the Company Credit Card (if any) for the amount due. The forgoing is without limitation of any other rights and remedies IMB may have at law, in equity or by contract.
3.4 Late payments. Any charges which are past due by more than thirty (30) days shall bear interest at the lesser of the rate of one and a half percent (1.5%) per month or the maximum rate permitted by applicable law. Listing Company shall reimburse IMB for any collection and legal fees incurred as a result of late payment of any amount due and payable under this Agreement.
3.5 Payment disputes. If Listing Company disputes any charge made under this agreement, Listing Company must notify IMB in writing within sixty (60) days of any such charge. Failure to so notify IMB shall result in the waiver by Listing Company of any claim relating to such disputed charge. Charges shall be calculated solely based on records maintained by IMB.
4. Term and Termination
4.1 The initial term of this Agreement shall be one (1) month from the date the parties enter into this Agreement (such initial term the “Initial Term,” such date the “Agreement Date”).
4.2 This Agreement will renew on a month-to-moth basis at the end of the Initial Term and thereafter, subject to termination or cancellation pursuant to this Agreement.
4.3 IMB may at any time in its sole discretion suspend or restrict access to a Listing or terminate this Agreement for any reason or no reason, including but not limited to violation of this Agreement or repeated infringement of third party copyrights. IMB will notify Listing Company via telephone or email using the contact information provided during the Account set-up process of such cancellation or termination.
4.4 Listing Company may terminate this Agreement upon written notice to IMB at the contact information provided in Section 12 of this Agreement.
4.5 In the event of termination or cancellation this Agreement, IMB shall have no obligation to refund any fees paid pursuant to this Agreement, other than as provided in Section 3.1.3.
5.1 Listing Company may provide two kinds of information to IMB. An individual’s name, address, email address, age, date of birth, credit card or other financial information or any other contact information about an individual or from which personal information about an individual can be derived shall be considered “Personal Information.” Any and all information and/or content which Listing Company places in its Listing for viewing by Users (defined below) of SmallCapDirectory.com shall be considered “Listing Information.”
5.2 Personal Information provided by Listing Company under this Agreement shall not be disclosed to third parties, except as required under applicable law. Listing Company should not include Personal Information in its Listing, a publicly available forum, unless authorized by law or by the individual to whom such information relates. Listing Information shall be considered and treated as public information, even if such information would otherwise be considered personal or confidential and IMB shall not be responsible for the placement of such information in a Listing.
5.3 In no event shall Listing Company collect or cause or permit the collection of any Personal Information from individuals who register for, visit and/or browse SmallCapDirectory.com or its network partner sites (“Users”) or place any file or code on the personal computers of Users while they are browsing or viewing the Site or its network partner sites.
Listing Company hereby grants to IMB a world-wide, limited, non-exclusive, non-transferable, royalty-free license to: a) reproduce, distribute, transmit, display, perform, download, cache, store on its servers and otherwise use its Listing and any portion thereof, including but not limited to Listing Company’s trademarks, trade names, service marks and logos for the purposes of displaying and providing Listings in accordance with this Agreement; and b) grant Users the right to access, store, print and reproduce information in Listings.
IMB may amend this Agreement at any time, in its sole discretion, upon advance notice to Listing Company in a manner IMB chooses that complies with law. In the event such changes have a material adverse impact on Listing Company, Listing Company’s sole remedy is to terminate this Agreement. Failure to terminate this Agreement after receiving notice constitutes acceptance of the revised terms.
8. Representations and Warranties
8.1 You, as an individual, represent and warrant that:
- you are eighteen (18) years of age or older
- you have the right and ability to enter into this Agreement on behalf of Listing Company; and
- you have the authority to act on behalf of the Listing Company.
8.2 Listing Company represents and warrants that:
a. Listing Company is a company having a market capitalization of less than two billion dollars ($2,000,000,000.00) and is publicly listed on an American or Canadian exchange;
b. Listing Company owns and/or has the right to grant a license herein in Section 6 to IMB for all information submitted to the Site as part of a Listing or otherwise;
c. all information submitted to the Site as part of a Listing or otherwise will be timely and accurate;
- Listing Company will correct or update any information submitted to the Site as part of a Listing or otherwise in a timely manner and as necessary;
- the Listing does not otherwise violate applicable law or this Agreement, including but not limited to content that is fraudulent, deceptive, libelous, defamatory, obscene, pornographic, adult-themed,
- the content in Listing Company’s Listing does not infringe upon any copyright, trademark, trade name or service mark or the privacy, publicity or other rights of any third party.
9. Warranty Disclaimer
AS TO THE SITE, TO THE FULLEST EXTENT PERMITTED BY LAW, IMB EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, and/or that a certain number of users will be available or access the Site.
LISTING COMPANY assumeS ALL responsibility and risk RELATED TO ITS use of THE SITE, INCLUDING BUT NOT LIMITED TO ACCESSING AND MAINTAINING A LISTING. IMB will not be responsible for any damage to LISTING COMPANY’S computer system or loss of data that results from accessing or using the site.
10. Limitation of Liability
IMB shall not be liable under any theory (including negligence) for any incidental, consequential, indirect, special, lost profits or punitive damages arising out of your access to or use of THE SITE, even if IMB has been advised of the possibility of such damages.
IN NO EVENT SHALL THE LIABILITY OF IMB FOR ANY DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS ARISING OUT OF OR RELATING TO THE SITE, REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), DELICT OR OTHERWISE OF ANY TYPE EXCEED THE FEES PAID TO IMB BY LISTING COMPANY UNDER THESE TERMS DURING THE CALENDAR YEAR DURING WHICH THE APPLICABLE CLAIM ACCRUED, ANY CLAIM FOR DAMAGES IN EXCESS THEREOF BEING HEREBY WAIVED BY LISTING COMPANY.
IMB SHALL NOT BE LIABLE FOR FAILING OR DELAYING PERFORMANCE OF ITS OBLIGATIONS RESULTING FROM ANY CONDITION BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, GOVERNMENTAL ACTION DIRECTED AT A PARTY SPECIFICALLY, ACTS OF TERRORISM, EARTHQUAKE, FIRE, FLOOD OR OTHER ACTS OF GOD, LABOR CONDITIONS, POWER FAILURES, OR INTERNET DISTURBANCES. IMB WILL NOT BE RESPONSIBLE FOR TRANSMISSION OF DATA BETWEEN LISTING COMPANY (OR ANY USER’S) AND IMB OR ITS NETWORK PARTNERS OR FOR ENSURING RECEIPT OR DISPLAY OF ANY APPLICABLE LISTING.
Listing Company agrees to defend, indemnify and hold harmless IMB, its affiliates and/or partners, its officers, directors, partners, shareholders agents, licensees and employees (cumulatively “IMB Indemnitees”) from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees that may, at any time, arise from or relate to (a) the Listing, (b) any interaction or communications with Users, (c) any breach of Section 5 by Listing Company, or (d) breach of the representations and warranties in Sections 8.1 and 8.2.
LISTING COMPANY IS SOLELY RESPONSIBLE FOR ALL ACTIONS TAKEN BY IT OR BY ANYONE USING ITS ACCOUNT INFORMATION INCLUDING BUT NOT LIMITED TO ESTABLISHING AND UPDATING LISTINGS.
For all questions and issues arising under this Agreement, please use the following contact information:
By email: firstname.lastname@example.org
By mail: IntegrityMessageBoards.com, LLC
4900 15th Street
Marrero, Louisiana 70072
IMB takes the intellectual property rights of others very seriously. IMB complies with its requirements under the Digital Millennium Copyright Act (DMCA), including takedown procedures. Listing Company acknowledges and agrees that IMB’s compliance with the DMCA may include some or all of its Listing.
14.1 If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
14.2 To the fullest extent permitted by law, this Agreement and any claim or dispute arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Georgia, without regard to its choice of law principles. Except as otherwise prohibited by law, any claim or dispute must be brought within one (1) year from the date such cause of action arises. Any claim or dispute arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of state or federal courts located in Fulton County, Georgia, and you hereby consent and submit to the personal jurisdiction of such courts.
14.3 Content Provider may not use, export or re-export the materials at the Site or any copy or adaptation in violation of any applicable laws or regulations including without limitation U.S. export laws and regulations.
14.4 This Agreement constitutes the entire agreement between you and IMB relating to Listing Company’s management of its Listing and shall supersede any other agreement between you and IMB with respect to the subject matter of this Agreement.
14.5 Each party shall perform its obligations under this Agreement in compliance with all applicable international, federal, state and local laws, regulations and ordinances. This Agreement does not create any fiduciary relationships between Listing Company and IMB, service providers or other companies that assist with maintaining the Site. This Agreement does not create any relationship of principal and agent, partnership or similar relationship. Where appropriate in context, the conjunctive shall include the disjunctive, any shall include all, the singular shall include the plural, and vice versa. Section headings in this Agreement are for convenience only and have no legal or contractual effect. Sections 3, 4.5, 5, 8-12 shall survive the termination or cancellation of this Agreement.
14.6 Any rights or obligations hereunder may not be transferred or assigned by Listing Company without the prior written consent of IMB. IMB may freely assign and delegate this Agreement and any of its rights or obligations hereunder.