inStream Subscription Agreement
LAST UPDATED: October 2, 2014
This legal agreement (the “Subscription Agreement”) set forth below governs the relationship between you and/or any of your agent(s) (referred to herein as “you” or “your”) and inStream Solutions, LLC, a Delaware limited liability company (referred to herein as “inStream,” “we,” “us” or “our”), with respect to your use of our financial planning software-based service accessible via our website at http://www.instreamwealth.com (referred to herein as the “Service”).
By accepting this Subscription Agreement, you represent that you have the capacity to be bound by it or, if you are acting on behalf of a company or entity, that you have the legal authority to bind such entity. Before you continue, we encourage you to print or save a local copy of this Subscription Agreement for your records.
THIS SUBSCRIPTION AGREEMENT AND THE SERVICE OFFERED IN CONNECTION THEREWITH IS INTENDED ONLY FOR INVESTMENT PROFESSIONALS REGISTERED UNDER THE INVESTMENT ADVISERS ACT OF 1940 OR UNDER THE LAWS OF THE JURISDICTIONS IN WHICH ONE IS REQUIRED TO BE REGISTERED OR LICENSED IN ORDER TO PROVIDE INVESTMENT ADVICE OR INVESTMENT ADVISORY SERVICES, REGISTERED REPRESENTATIVES OF BROKER-DEALERS LICENSED BY THE SECURITIES AND EXCHANGE COMMISSION AND THE FINANCIAL INDUSTRY REGULATORY AUTHORITY (FINRA), OR STAFF WORKING DIRECTLY UNDER THE SUPERVISION OF ANY OF THE FOREGOING (SUCH PERSONS, “LICENSED INVESTMENT PROFESSIONALS”).
- NATURE OF SERVICE
(a) Features. The Service contains a variety of online analysis tools and services for Licensed Investment Professional to assist them in providing financial services to their clients. The Service includes features such as a dashboard overview, proactive alerts, goal-based planning, client profiles, calculators, trend analyzers and data mapping tool as well as any other features or contents we may add in the future.
(B) DISCLAIMER. ALTHOUGH THE SERVICE MAY PROVIDE YOU WITH INFORMATION OR GUIDANCE IN MAKING INVESTMENT DECISIONS FOR AND/OR RECOMMENDATIONS TO YOUR CLIENTS, IT IS NOT A SUBSTITUTE FOR YOUR KNOWLEDGE, JUDGMENT AND INVESTMENT DISCRETION IN RENDERING INVESTMENT ADVICE FOR CLIENTS. YOU WILL BE SOLELY RESPONSIBLE FOR PROVIDING INVESTMENT ADVICE AND SERVICES TO CLIENTS AND YOU ACKNOWLEDGE THAT INSTREAM BEARS NO RESPONSIBILITY IN THIS REGARD. THE SERVICE DOES NOT PROVIDE CUSTOMIZED TAX, LEGAL, INVESTMENT, OR RISK MANAGEMENT ADVICE OR STRATEGIES.
- REGISTRATION AND SUBSCRIPTION; NOTICES; DATA BACK-UP
(a) Registration. In order to access and use the Service, you must register and create an account with us and pay us the applicable subscription fee (the “Subscription Fee”). We reserve the right to reject any subscription order.
(b) User ID. Upon creating an account, you will receive a set of unique log-in credentials (referred to herein as your “User ID”), which includes a username and password to permit you to access to the Service. Without limiting our rights under Section 3(a) above, inStream reserves the right to deny creation of your account based on our inability to verify the authenticity of your registration information.
(c) Multiple Seats. Some subscription orders may be for multiple “seats” to use our Service (such subscribers, the “Master Account Holder”). Master Account Holders generally will be able to configure User IDs for their authorized users. Please contact our Support Department for assistance. Master Account Holders are responsible for all use of the Service and the Site by their authorized users and such authorized users’ compliance with this Agreement.
(c) Subscription Term and Billing. All our subscription plans currently are provided on a 12-month term basis. Payments for a subscription term can be billed monthly or annually. Subscribers who elect to be billed on a monthly basis nonetheless remain responsible for the Subscription Fees for the entire 12-month term, regardless of whether they cancel the Service prior to the end of the applicable term.
(d) Subscription Fees. Your initial Subscription Fee is the rate at which you were offered a subscription to access the Service, which is subject to change to time to time. Subscription Fees on renewal are the applicable rates then in effect. Please note that Subscription Fees may change at any time, and we do not offer any price protection or refunds in the event of a price reduction or promotional offering.
(e) Trial Periods. We offer new subscribers a trial period (the “Trial Period”) during which they may cancel their subscription and receive a full refund if they are not satisfied with the Service. Unless your subscription offer provides otherwise, the maximum Trial Period shall be fourteen (14) days from the date of an initial registration. After the expiration of the Trial Period, users will not be entitled to any Subscription Fee refunds – regardless of whether they used the Service. Please note that Trial Periods do not apply to renewal subscriptions nor to new subscriptions set up by persons who have used the Service within the last 12 months.
(f) Auto-renewal. Your subscription will renew automatically at the end of your subscription term at the applicable rates then in effect unless you provide us with a cancellation notice prior to such renewal date (see “Cancellations and Refunds,” below). You hereby authorize us to (a) charge any credit or debit card you have on file for your renewal subscription fees or (b) if you have set up a bank draft with a financial institution, to initiate a withdrawal of funds against your account at the financial institution for such your renewal subscription fees. So as to help avoid any disruptions in your access to the Service, please keep your payment information up to date. If your credit or debit card information on record is invalid or expired, or your financial institution declines to process the bank draft, our Support Department will use reasonable commercial efforts to contact you to request you update your payment information.
(g) Cancellation and Refunds. Except during Trial Periods, we do not offer Subscription Fee refunds. If you are registering for the Service for the first time, you may cancel your subscription anytime during the applicable Trial Period for a full refund. After the expiration of your Trial Period, you will not be entitled to any refunds – regardless of whether you used the Service.
(j) Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, goods and services, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your subscription, includes Taxes assessed after you pay your Subscription Fee. If we have the legal obligation to pay or collect Taxes for which you are responsible hereunder, we will invoice you and you agree to pay such amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. You hereby authorize us to charge any credit or debit card you have on file for such Taxes. We shall be responsible for all taxes based upon our net income or on our property ownership.
(k) Receiving Notices. By providing us with your e-mail address, you consent to receive any notices from us electronically, to that e-mail address. It is your responsibility to update or change your email address, as appropriate. Please note that our notices may be provided in the text of the e-mail or through a link to the appropriate page on our Site.
(l) Electronic Signature. When you click on an “I agree,” “I consent” or other similarly worded “button” or entry field with your mouse, keystroke or other device, such action will constitute your agreement or consent and will be legally binding and enforceable and the legal equivalent of your handwritten signature.
- LICENSE, OWNERSHIP AND PROPRIETARY RIGHTS
(b) Ownership and Proprietary Rights. You acknowledge and agree that we and our licensors retain any and all ownership rights related to the Service, including applicable proprietary rights and are protected by United States laws and international treaty provisions. “inStream” is our trademark and “inStream Solutions” is our registered trademark. Other product and company names that are mentioned on the Site or provided as part of the Service may be trademarks of their respective owners.
(c) Protecting Our Rights. You acknowledge that the Service has been developed, compiled, prepared, revised, selected, and arranged by inStream and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and that the Service is the valuable intellectual property of inStream and such others persons who may be providing content or services to us under license.
The content on the Site, excluding all intellectual property of other sites obtained by way of linking, is owned by inStream (or used by inStream under license). This includes, without limitation, text; software; the look and feel of the Site, service and applications, such as color combinations, logos, button shapes, scripts, and graphics; photos; sounds; interactive features; and the trademarks, service marks and logos contained on the Site, services or applications (collectively referred to herein as the “Content”). The Content is owned by, or licensed to, inStream, in each case subject to copyright and other intellectual property rights under applicable law.
All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the Service (the “Intellectual Property Rights”) shall, as between you and inStream, at all times be and remain the sole and exclusive property of inStream. All present and future rights in and title to the Service are reserved to inStream for its exclusive use.
(e) Thompson Reuters Notice. Portions of the mutual fund information contained on the Site were supplied by Lipper, A Thomson Reuters Company, subject to the following: Copyright 2013 © Thomson Reuters. All rights reserved. Any copying, republication or redistribution of Lipper content, including by caching, framing or similar means, is expressly prohibited without the prior written consent of Lipper. Lipper shall not be liable for any errors or delays in the content, or for any actions taken in reliance thereon.
(f) Unsolicited Information and Feedback. While we welcome your feedback or other suggestions regarding this Site, the Service and/or our various offerings (collectively “Feedback”), you provide such Feedback to us voluntarily. You shall be deemed to have granted us a perpetual, royalty-free, fully paid up and irrevocable right and license to use, reproduce, modify, publicly display, distribute, transmit, sublicense, create derivative works from, transfer, sublicense and sell such Feedback.
- USAGE RULES
The following are the rules apply to your use of the Service (the “Usage Rules”). We may, without prior notice and without limiting our other remedies, deny you access to any and all parts of the Site and/or the Service and suspend or terminate your account if, in our sole discretion, we find you to be in violation of the Usage Rules.
(b) Prohibition on Use by Persons under Age 18. Unless expressly authorized by a parent or guardian, CHILDREN UNDER THE AGE OF EIGHTEEN ARE NOT PERMITTED TO SUBMIT ANY PERSONALLY IDENTIFIABLE INFORMATION OR UNSOLICITED INFORMATION.
(d) Password and Account Protection. You are responsible for maintaining the confidentiality of your password which, together with your User ID and registered e-mail address, allows you to access the Services. You shall immediately notify us of any known or suspected unauthorized use(s) of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information, or if your registered e-mail account has been compromised.
(e) Interference with Third Parties. You shall not interfere with any other person’s use of the Service, including, without limitation, disrupting, spamming or otherwise using abusive tactics to deter others from using the Service or any of its features.
(f) Harmful Code; Other Practices. You may not post or transmit any file to this Site (or to any other party offering services via this Site, including Third Party Services) or to any other user which contains viruses, worms, time bombs, malware Trojan horses or any other contaminating or destructive code. You shall not exploit the Site, the Service or the Third Party Services to trespass or burden network capacity.
(g) Other Prohibited Activities. You will not to use the Site or the Service (or assist or encourage others to use the Site or the Service) in order to:
- Solicit passwords or personal identifying information for commercial or unlawful purposes from others;
- Impersonate another person or entity, whether or not a user of the Service;
- Select a User ID already used by another person; use a User ID in which another person has rights without such person’s authorization; or use a username or password that we, in our sole discretion, deem offensive or inappropriate.
- Upload, post, email, transmit or otherwise make available restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels stating the origin or source of software or other Content contained on the Site;
- Attempt to sell, modify, reverse engineer, disassemble, decompile, frame, decrypt, decompile, create derivative works of or otherwise exploit for any commercial purpose the Site or Service, any portions thereof (including the Content and Client Information of our other users), or any of our affiliated organizations without our prior written consent;
- Do anything that may interfere with the operation of the Service, including, but not limited to, hacking, spamming and flood attacking;
- Remove any copyright, Trademark or other proprietary rights notices contained in or on the Site;
- Interfere with or disrupt the Site, the Service or servers or networks connected to either, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
- Attempt to harvest, scrape, copy or otherwise collect information, or Content from the Site, to retrieve or index any portion of the Site or collect information about other users for any purpose not expressly authorized by us, including, without limitation, republishing the same on a third party website, either manually or through any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, site search/retrieval application, intelligent agents or other device);
- Access Content or data not intended for you, or log onto a server or under a User ID that you are not authorized to access;
- Create accounts by automated means, or under false or fraudulent pretenses; or provide false, misleading or inaccurate information to inStream or any other user;
- Impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity;
- Harvest or otherwise collect information about other Licensed Investment Professional or their clients, including email addresses, passwords, User IDs or phone numbers;
- Harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party; or
- Use the Site or Service to solicit or recruit other persons to another website or service.
- OBTAINING CLIENT INFORMATION FROM THIRD PARTIES
- COLLECTION OF INFORMATION; SHARING YOUR INFORMATION OR CLIENT INFORMATION
In addition to log data, we also may collect information about the device you are using the Service on, including what type of device it is, what operating system you are using, device settings, unique device identifiers, and crash data. Whether we collect some or all of this information often depends on what type of device you are using and its settings. For example, different types of information are available depending on whether you are using a Mac or a PC, or an iPhone or an Android phone. To learn more about what information your device makes available to us, please also check the policies of your device manufacturer or software provider.
We may create Anonymous Information records from account information or Client Information. "Anonymous Information" is information that is not associated with or linked to Client Information and does not permit the identification of individual clients or accounts. Generally, we aggregate this information and use it in statistical analysis to help us analyze patterns in the use of the Service. We may use or disclose Anonymous Information in any way (including providing benchmarking data or analysis for the users of the Service) and we reserve the right to use and disclose Anonymous Information to our partners, advertisers and other third parties in our discretion.
- THIRD PARTY APPLICATIONS
Portions of our Site may utilize or include certain third party services (“Third Party Services”) that are not owned, operated, or controlled by inStream. Therefore, we cannot and do not assume responsibility for the content, privacy policies, or practices of such services or the companies that own them. We encourage you to learn about the privacy practices and terms and conditions of each Service Provider before agreeing to give it your data, your Client Information or using its applications. For more information, please review the Service Provider’s applicable policies and terms of services or contact the Service Provider directly. Third Party Services are provided “AS IS”, WITH ALL FAULTS” and “AS AVAILABLE” and as a convenience to you. You hereby expressly relieve us from any and all liability arising from your use of any such Third Party Services. INSTREAM DOES NOT ENDORSE THIRD PARTY APPLICATIONS OR SERVICES.
My Maps. The “My Maps” functionality on our Site is offered on an “opt-in” basis, meaning that you will not be able to use such functionality unless you expressly consent to do so. “My Maps” is a Third Party Service offered by MeisterLabs GmbH, a company incorporated under the laws of Germany, with its principal place of business at Werner-Eckert-Strassee 12, 81829 Munich, Germany. Your use of the “My Maps” Third Party Service (including the sharing of Client Information and your information) will be governed solely by an agreement between you and MeisterLabs GmbH.
- THIRD PARTY SITES AND ADVERTISING
inStream may contain links to other websites to notify you of services or products which may be of interest to you. The links or resources about third party sites are provided for your convenience and reference only. These third party sites are not owned, operated, or controlled by inStream. Please be aware that we are not responsible for the availability of the third-party websites or resources, any content posted on their websites, their privacy policies, or their business practices. inStream makes no guarantees and disclaims any express or implied representations or warranties about the accuracy, relevance, timeliness, completeness, or appropriateness for a particular purpose of the services or other information obtained from or contained on such websites. We encourage you to read the privacy policies of each and every website you visit. The ability to access information of third-parties from InStream, or links to other websites or locations, is for your convenience and does not signify our endorsement of such third-parties, their products, their services, other websites, locations or their content.
- REPRESENTATIONS AND WARRANTIES
You represent and warrant that:
- You are a Licensed Investment Professional, and will continue to remain a Licensed Investment Professional while granted access to the Service.
- With respect to each Client for whom you will utilize the Service, you have authority to disclose Client Information in connection with your use of the Service.
- You will safeguard confidential, protected, non-public personal information which is received, transmitted, managed, and/or processed via the Service.
- You agree to protect our proprietary rights and that of all others having rights in the Service during and after the term of your subscription.
- You shall not violate any of copyright, trademark or other proprietary right, and shall be solely responsible for any damages resulting from any such infringement or any other harm resulting from any software, data or files of any type you upload, download, distribute, access, post, submit, or transmit to or from the Service.
- The information and results of calculations obtained through the use of the Service will be represented accurately and used in compliance with all applicable laws and regulations.
- You will at all times ensure that you are using adequate security standards, which includes a commercially reasonable security technology which provides a level of security that, at a minimum, is compliant with the applicable laws and industry standards.
- You currently follow industry standards as a means to prevent any compromise of your information systems, computer networks or data files by unauthorized users, viruses or malicious computer programs which could in turn be propagated via computer networks, electronic mail, magnetic media or other means to the Site.
- You will not and any third party shall not be permitted to upload, post, copy, display, reproduce or distribute any malicious code.
- You acknowledge and agree that the Service is subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations (“Acts”). You agree and certify that neither the Service nor any direct product thereof is being or will be acquired, shipped, transferred or exported, directly or indirectly outside the United States or will be used for any purpose prohibited by the Acts; provided, however, U.S. citizens and U.S. permanent resident aliens may travel to countries not prohibited by the Acts and access the Service provided they are not using the Service in violation of the Acts or other applicable U.S. laws. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of our applications and/or Service or underlying information or technology may be downloaded or otherwise 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. Commerce Department’s Denied Parties List or Entity List. By using our applications and/or Service you are agreeing to the foregoing and are representing and warranting that: (a) no U.S. federal agency has suspended, revoked, or denied you export privileges; (b) you are not located in or under the control of a national or resident of any such country or on any such list; (c) you will not export or re-export the Service to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls; and (d) you will not use the Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
- DISCLAIMER OF WARRANTIES
WE ARE NOT ENGAGED IN RENDERING INVESTMENT OR FINANCIAL ADVICE, AND THE RESULTS OF USE OF THE SERVICE AND CONTENT MUST NOT BE REGARDED OR REPRESENTED AS CONSTITUTING INVESTMENT OR FINANCIAL ADVICE. PRIOR INVESTMENT PERFORMANCE DOES NOT WARRANTY FUTURE RESULTS. AS SUCH, INSTREAM DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF ANY PROJECTIONS GENERATED BY THE SERVICE.
AS A PROFESSIONAL FINANCIAL ADVISOR, YOU BEAR ALL RESPONSIBILITY FOR ADVICE AND SERVICES FURNISHED TO YOUR CLIENTS, REGARDLESS OF WHETHER YOU EMPLOYED THE SERVICE IN CONNECTION WITH THE DEVELOPMENT OF SUCH ADVICE. POSSIBLE FUTURE RESULTS OF INVESTMENT DECISIONS ARE PROVIDED MERELY FOR INFORMATION PURPOSES AND SHOULD NOT BE REGARDED AS A PREDICTION OR GUARANTEE OF ANY FUTURE RESULTS. You agree that by using the Service, you will assume sole responsibility to exercise your own professional judgment in verifying all information when inputting your own assumptions, relying on any assumptions provided through the Service, and/or verifying the accuracy of Client Information.
- WAIVER, RELEASE AND LIMITATION OF LIABILITY
YOU AGREE THAT INSTREAM, ITS AFFILIATES AND PARENT COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, INFORMATION PROVIDERS, PARTNERS (INCLUDING, WITHOUT LIMITATION, RESELLERS, INTERNET PORTAL PROVIDERS AND FINANCIAL INSTITUTIONS THROUGH WHOM YOU MAY HAVE BEEN INTRODUCED OR PROVIDED ACCESS TO THE SERVICE, CONTENT OR REPORTS) AND SUPPLIERS (COLLECTIVELY, THE “INSTREAM GROUP”) SHALL HAVE NO LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE SERVICE. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST THE INSTREAM GROUP (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF ANY OF THE INSTREAM GROUP) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE SERVICE.
NOTWITHSTANDING THE FOREGOING PARAGRAPH, THE TOTAL LIABILITY OF THE INSTREAM GROUP, IF ANY, FOR LOSSES OR DAMAGES SUSTAINED BY YOU SHALL NOT EXCEED THE LESSER OF: (A) THE AGGREGATE OF SUBSCRIPTION FEES PAID BY YOU OR ON YOUR BEHALF FOR THE CALENDAR YEAR IMMEDIATELY PRECEDING THE DATE WHEN LIABILITY AROSE; OR (B) ONE HUNDRED DOLLARS ($100.00) (USD). IN NO EVENT SHALL THE INSTREAM GROUP BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM ANY USE OF THIS SITE, THE SERVICE OR THE CONTENT (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The availability of the Service depends on many factors, including your connection to the Internet, the availability of the Internet and the Internet backbone and equipment that, by its nature, is not fault tolerant. inStream shall not be responsible for your inability to access the Service, or data or output errors (1) caused by factors outside of inStream’s reasonable control; (2) that resulted from your or any third party’s actions or inaction; (3) that resulted from your equipment and/or third party equipment not within inStream’s sole control; or (4) connections to the internet which are not within inStream’s sole control.
THE SERVICE DOES NOT RECOMMEND, GUARANTEE OR REPRESENT THAT FUTURE PERFORMANCE OF INVESTMENT OR INSURANCE PRODUCTS OF ANY KIND CAN BE PREDICTED. FORECASTS OF INVESTMENT DECISIONS ARE PROVIDED MERELY FOR INFORMATION PURPOSES AND FOR YOUR CONVENIENCE AND SHOULD NOT BE REGARDED AS A PREDICTION OR GUARANTEE OF ANY FUTURE RESULTS.
The projected returns, standard deviations, and correlations included in the Service are based on a combination of the historical performance of an appropriate broad market index, as well as user-defined portfolio model allocations. The returns, standard deviations, correlation, and dividend yields are provided “AS IS,” and as a convenience to you. Certain other assumptions, such as tax rates and inflation rates may also have default values as a convenience to you. Such research, assumptions, and conditions might or might not occur in the future. inStream neither warrants nor guarantees any of the research, assumptions, or conditions; nor does inStream warrant or guarantee their usefulness, and the use of any projected data is at your own risk. You bear all responsibility for the results generated through the use of such data. inStream shall not have any liability of any kind whatsoever to you, or to any party, because of your use of such data.
Some states do not allow the exclusion of damages or limitation of liability as set forth above, so this limitation of liability may not apply to you. If any part of this limitation does not apply or is deemed to be invalid or unenforceable, for any reason, then under those circumstances, the aggregate liability and damage exclusion shall only be restricted or diminished to the extent necessary to be legally enforceable. If any remedy hereunder is determined to have failed of its essential purpose; all limitations of liability, disclaimers of liability, and exclusions of liability shall remain in effect. The limitations of damages and exclusions of liability set forth above are fundamental elements of the basis of the bargain between you and us and we would not be able to have provided you the Service at the prescribed Subscription rates without such limitations.
(b) Termination by You. You may terminate your subscription at any time, by providing notification to us via email@example.com. Such termination shall take effect upon our acknowledgment that we received of your termination notice. Notwithstanding any such termination, you shall not be entitled to any refund of your subscription fees except pursuant to the “Cancellations and Refunds” provisions above.
(c) Effect of Termination. Upon termination of your subscription by you or inStream, you will immediately cease access to the Service and destroy promptly all materials obtained from the Service and any copies thereof. inStream shall not be liable to you or any third party for the termination or suspension of the Service, or any claims related to the termination or suspension of the Service.
(d) Survival. In addition to any provisions of this Subscription Agreement that survive in accordance with their terms, the following Sections will survive any termination of this Agreement: Sections 1, 2(b), 3(g)-(l), 4, 6-13, 14(c), 15 and this Section 14(d).
(c) Severability. If any provision of this Subscription Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be construed in a manner consistent with applicable law to reflect as nearly as possible our original intent, and the remaining portions shall remain in full force and effect. inStream also reserves the right, in its sole option, to terminate this Subscription Agreement if any provision of this Subscription Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable.
(d) Governing Law; Jurisdiction. This Subscription Agreement will be governed solely by the internal laws of the State of Delaware without reference to its principles of conflicts of law. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Subscription Agreement. You expressly agree that exclusive jurisdiction for any claim or dispute with us or relating in any way to your use of the Service or the Site shall be in the state federal courts in within the U.S. federal Eastern District of Virginia, Alexandria division (and the courts of appeal therefor), and expressly consent to the personal jurisdiction of such courts.
(e) WAIVER OF JURY TRIAL. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE SERVICE OR THE SITE.
(f) Relationship of the Parties. You and we are independent contractors and this Subscription Agreement does not create any joint venture, employment, agency or partnership relationship.
(g) Notices. We may deliver notice to you under this Agreement by means of electronic mail, a general notice on the Site, or by written communication delivered by first class U. S. mail to your address on record in your account information, if any. Such notices shall become effective immediately. You may give notice to us at any time by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address: inStream Solutions, LLC, 621 Wythe Street, Alexandria, VA 22314.
(h) Commercial Software Notice. The Service and its related documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, to the extent any Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
(i) Disclosure. inStream reserves the right to take steps inStream believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that subject to its obligations under applicable law, inStream has the right, without liability to you, to disclose any account information and/or Client Information to law enforcement authorities, government officials, and/or third parties, as inStream believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement or to comply with applicable law or contractual obligations (including, but not limited to, inStream’s right to cooperate with any legal process relating to your use of the Services or its obligations to financial institutions who have the right to verify that we are using your data in accordance with the terms of their distribution terms). We will take measures that we believe are commercially reasonable to protect the confidentiality of your information and Client Information.
(j) Assignment. You may not assign this Agreement without our consent. We may assign our rights under this Agreement, in whole or in part, to any person without notice to you.
(k) No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.