YOU SHOULD CAREFULLY READ THE FOLLOWING STEELMARKETUPDATE.COM TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE” OR “AGREEMENT”). IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE SERVICES OF STEELMARKETUPDATE.COM (THE “SITE” OR “SMU”). BY ACCESSING THE SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO ALL OF THESE TERMS.
This policy covers how SMU treats personal information that SMU collects and receives, including information related to your past use of SMU services. Personal information is information about you that is personally identifiable like your name, address, email address, or phone number, and that is not otherwise publicly available. This policy does not apply to the practices of companies that SMU does not own or control, or to people that SMU does not employ or manage.
- “Access” or “Accessing” means accessing, using or viewing the Content or otherwise obtaining information or using any Service on the Site.
- “Agreement” refers to these Terms of Service as well as any subsequent modifications.
- "Content" shall refer to any text, image, audio or video file or data contained on the Site.
- "Intellectual Property Rights" shall refer to any and all rights existing from time to time anywhere in the world under patent law, copyright law, trademark law, moral rights law, trade secrets law, or other similar proprietary rights.
- "Login Information" shall refer to the user name and password assigned to You by SMU.
- "Newsletter" shall refer to any publication, whether via electronic format or otherwise, by SMU.
- "SMU" shall mean steelmarketupdate.com and Steel Market Update, Inc.
- "Site" shall refer to steelmarketupdate.com
- "Service" shall mean any newsletter, feature, function, procedure, process or tool offered on or in connection with the Site.
- "User" refers to any party who Accesses with Site. If You are Accessing the Site as an employee or agent of another, "User" refers both to You and Your principal.
- "You" or "Your" refers to the User.
II. Authorized Use
SMU hereby grants to each User who has entered into an agreement with SMU a limited, non-exclusive, non-sublicensable and non-transferrable license to access the Content and Services on the Site and/or the Newsletter, as the case may be, pursuant to conditions set forth in this Agreement, and subject to your payment of all applicable fees as determined by SMU.
III. Prohibition Against Unauthorized Use and Harmful Transmissions
You may not use the Site, its Content or any of its Services, in any manner that is inconsistent with these Terms of Service. You further agree that you will not upload, post, e-mail, or otherwise transmit to the Site or to any other User any messages, programs, or other materials (including but not limited to Trojan Horses, viruses, worms, and the like) that contain software viruses, malicious programs (“malware”), or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or telecommunications equipment.
IV. Third Party Content; Hyperlinks
SMU is not required to pre-screen third party materials even if they appear on the Site. SMU is not the publisher or author of any information on the Site that is provided by third parties, and you acknowledge that SMU is not liable for any claims related to such information. SMU assumes no responsibility for third party services, and you agree to hold SMU harmless in relation to such services. The Site and/or Newsletter may have links and references to other third party websites and materials. SMU does not assume any responsibility for these websites or materials.
V. Confidentiality & Non-Disclosure of Newsletter
- A. SMU’s Newsletter contains business and financial information, information pertaining to business methods and practices, information regarding technologies and technological strategies, marketing strategies, and other such information that is provided to You by SMU on a confidential basis pursuant to a requirement of non-disclosure as set forth herein.
- B. You agree not to disclose, disseminate, distribute, reveal, or otherwise make known to any third party the Newsletter or any of its contents, either directly or indirectly. You agree to maintain the confidentiality of the Newsletter and to use the same care you would use to safeguard and prevent disclosure of your own confidential information, but in no event shall you use less than commercially reasonable care.
- C. This Agreement does not apply to any information in the public domain or which the recipient can show was either already lawfully in the recipient’s possession prior to its disclosure by SMU or acquired without the involvement, either directly or indirectly, of the SMU.
VI. Digital Millennium Copyright Act
A. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
B. SMU's designated Copyright Agent to receive notifications of claimed infringement is: [insert name, address, and email address]. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to SMU customer service. You acknowledge that if you fail to comply with all of the requirements of this Section VI, your DMCA notice may not be valid.
C. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature.
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Miami, Florida, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, SMU may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at SMU's sole discretion.
SMU or its third party Content providers, if any, shall retain all worldwide Intellectual Property Rights in, on and to the Site and the Newsletter, including without limitation trademarks, service marks, trade dress, inventions, ideas, trade secrets, the source code, HTML code, XML code, the “look and feel” of the Site, its color combinations, layout, and all other graphical elements, and copyrights in any original work of authorship on the Site. Except as expressly stated on the Site, in the Newsletter, or in this Agreement, you may not copy, reproduce, modify, distribute, transmit, republish, display or perform for commercial use anything that you read, hear or see on the Site. Notwithstanding the foregoing, nothing in this Agreement or on the Site shall be interpreted to grant you an express or implied license to any Intellectual Property Rights of SMU.
IX. Security of Login Information
X. Changes to the Terms of Service Agreement
SMU reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, including without limitation access policies, the availability of any Content or Service, hours of availability, software or equipment needed to access any Content or Service, effective with or without prior notice; provided, however, that material changes (as determined in SMU's sole and absolute discretion) will be disclosed as follows: SMU will provide you with notification of such changes through notifications on the Site, by email, postal mail, or other means reasonably calculated to ensure notice to you. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using SMU. Your continued use of SMU following any revision to this Agreement constitutes your complete and irrevocable acceptance of any such changes. SMU may change, modify, suspend or discontinue any aspect of the Site at any time. SMU may also impose limits on certain features or restrict access to part or all of the Site at any time without notice or liability.
This Agreement is effective until terminated. You agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid prior to any termination of this Agreement. The provisions of Sections VI, X, XI, XIII, XIV and XV shall survive any termination of this Agreement.
XII. Warranty Disclaimer
SMU, INCLUDING ITS CONTENT AND SERVICES, ARE PROVIDED “AS IS” AND SMU DOES NOT WARRANT THAT THE CONTENT OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED, OR THAT THE CONTENT OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SMU EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.
XIII. Limitation of Liability
NEITHER SMU NOR ITS PARENT, SUBSIDIARIES, LICENSORS OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND RESULTING FROM (A) THE USE OR INABILITY TO USE THE SITE, ITS CONTENT OR SERVICES, INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION; (B) THE LOSS OF OR DAMAGE TO YOUR DATA; OR (C) INTERRUPTION OF SERVICE INCLUDING WITHOUT LIMITATION ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL SMU BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES.
XIV. Force Majeure
SMU shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of SMU, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond SMU's control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
XV. Equitable Remedies
In the event that you breach this Agreement, you hereby agree that SMU would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that SMU shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as SMU may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement and consistent with Section XIV, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
XVI. Dispute Resolution and Governing Law
- A. Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement ("Dispute"), you and SMU agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. SMU will send its notice to your billing address and email you a copy to the email address you have provided to us. You will send your notice to Steel Market Update, Inc., PO Box 1255, Hobe Sound, FL 33475.
- B. Binding Arbitration. If you and SMU are unable to resolve a dispute through informal negotiations, either you or SMU may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of the arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and SMU may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- C. Restrictions. You and SMU agree that any arbitration shall be limited to the Dispute between SMU and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of other persons or the general public.
- D. Exceptions to Informal Negotiations and Arbitration. You and SMU agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce, protect, or concerning the validity of any of your or SMU's intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
- E. Location. Any arbitration shall be initiated in Miami, Florida (USA). Any Dispute not subject to arbitration (other than claims proceeding in any magistrate or small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction in the County of Martin, State of Florida, United States of America, and you and SMU agree to submit to the personal jurisdiction of that court.
- F. Governing Law. Except as expressly provided otherwise, this Agreement shall be governed by, and will be construed under, the Laws of the United States of America and the law of the State of Florida, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. For our clients who access the Site and its Services from Canada, other laws may apply if you choose not to agree to arbitrate as set forth above, and in such event, shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof.
- G. Severability. You and SMU agree that if any portion of Section XIV is found illegal or unenforceable (except any portion of XIV(D)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section XIV(D) is found to be illegal or unenforceable then neither you nor SMU will elect to arbitrate any Dispute falling within that portion of Section XIV(D) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction in the County of Martin, State of Florida, United States of America, and you and SMU agree to submit to the personal jurisdiction of that court.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Terms of Service Agreement is the complete and exclusive statement of the agreement between you and SMU concerning the Site, its Content and Services, and this Agreement supersedes any prior or contemporaneous agreement, either oral or written, any other communications with regard thereto between you and SMU; provided, however, that this Agreement is in addition to, and does not supplant, the SMU Activation Agreement. This Agreement may only be modified as set forth herein. The section headings used herein are for reference only and shall not be read to have any legal effect.
I HEREBY CERTIFY THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE AGREEMENT AND AGREE THAT MYUSE OF THE SITE, ITS CONTENT AND SERVICES, IS AN ACKNOWLEDGEMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS TERMS OF SERVICE AGREEMENT.