- Acceptance of Terms
- Changes to the TOU and Our Services
- Important Securities Disclaimer
- Registration and Privacy
- Subscription Cancellation for Premium Service
- Subscription Renewal for Premium Service
- TheStreet.com, Inc.'s Proprietary Rights
- User Conduct
- User-Generated Content
- Links to Other Websites and Viral Links
- Disclaimer of Warranties
- Limitation of Liability
- Copyright Infringement
- Repeat Infringement
- Legal Notices
1. Acceptance of Terms
Subject to and in compliance with the terms and conditions set forth herein, TheStreet may provide its users with access via TheStreet Portfolio of Websites to:
- Free content including blogs and forums written by our Columnists, emails, podcasts, webinars and conference calls (the "Free Service") and User-Generated Content (the "Free Service"); and
- Premium content including blogs and forums written by our Columnists, emails, podcasts, webinars and conference calls and User-Generated Content for which You must pay a subscription fee to access (the "Premium Service").
The Premium Service and the Free Service are collectively referred to herein as the "Services".
You also understand and agree that the Services may include certain communications from TheStreet, such as service announcements and administrative messages that You may not be able to opt out of receiving.
Current applicable subscription rates for any Premium Service can be found on such Premium Service's offer page or by contacting our Customer Service Department by telephone at 1-866-321-8726 Monday through Friday between the hours of 8:00 a.m. and 6:00 p.m. ET. An independent contractor who creates content for TheStreet Portfolio of Websites is referred to herein as an "Outside Contributor". Outside Contributors and employees that create content for TheStreet Portfolio of Websites are collectively referred to herein as "Columnists". "User-Generated Content" means content created by our users.
2. Changes to the TOU and Our Services
We reserve the right at any time to:
- Change the terms and conditions of the TOU;
- Change all or any portion of the Services, eliminating or discontinuing any content or feature of the Services (including but not limited to adding or removing particular Columnists, ceasing to provide access to a Premium Service, and/or providing an alternative Premium Service to You as a replacement); or
- Change the fees, charges or other conditions for use of the Services (with reasonable notice, in our sole discretion).
Any changes we make to the TOU will be effective immediately after we post the modified TOU on TheStreet. In the event that You have the TOU cached on your browser, the TOU that applies to You is the most recent version of the TOU that appears on a non-cached browser. In addition, if a Premium Service is added or removed, or the terms of their engagement has changed, the TOU may be modified with respect to such Premium Service. You should check our TOU frequently.
3. Important Disclaimer Regarding the Information We Provide
TheStreet is a publisher. You understand that no content published as part of the Services constitutes a recommendation that any particular investment, security, portfolio of securities, transaction or investment strategy is suitable for any specific person. You further understand that none of the creators of our Services or their affiliates will advise You personally concerning the nature, potential, value or suitability of any particular investment, security, portfolio of securities, transaction, investment strategy or other matter. Accordingly, do not attempt to contact them seeking personalized investment advice, which they cannot provide. To the extent any of the content published as part of the Services may be deemed to be investment advice, such information is impersonal and not tailored to the investment needs of any specific person.
You understand that the Services may contain opinions from time to time with regard to securities mentioned in other Services, and that those opinions may be different from those obtained by using another portion of the Services. Past results are not necessarily indicative of future performance.
You understand and agree that, although we do not permit our editorial staff to hold positions in securities in individual companies other than securities of TheStreet.com, Inc., from time to time, one or more Outside Contributors or their affiliates may have a position in the investment or securities written about. In cases where the position is held at the time of publication, Outside Contributors are required to make appropriate disclosure. In addition, Outside Contributors may be subject to certain restrictions on trading for their own account. In addition, certain of TheStreet's affiliates and employees may, from time to time, have long and short positions in, or buy or sell the securities, or derivatives thereof, of companies mentioned in respective Services and may take positions inconsistent with the views expressed.
You understand that performance data is supplied by sources believed to be reliable, that the calculations therein are made using such data, and that such calculations are not guaranteed by these sources, the information providers, or any other person or entity, and may not be complete. In addition, past performance is not an indication of future results.
From time to time, reference may be made in our marketing materials to prior articles and opinions we have published. These references may be selective, may reference only a portion of an article or recommendation, and may not to be current. As markets change continuously, previously published information and data may not be current and should not be relied upon.
When U.S. exchanges are open, any quotes (other than those obtained through the real-time quote services available to users of certain Services) are at least 20 minutes delayed. When U.S. exchanges are not open, quotes are only current as of the close of the last day of trading. Before selling or buying any investment, You should consult with a qualified broker or other financial professional to verify pricing information.
To the extent any of our Services involves a model portfolio or an actual portfolio of investments, as described below, such portfolio of investments is chosen by the author in accordance with their stated investment strategy. Your actual results may differ from results reported for the portfolio for many reasons, including, without limitation:
- performance results for the portfolio do not reflect actual trading commissions that You may incur;
- performance results for the portfolio do not account for the impact, if any, of certain market factors, such as lack of liquidity, that may affect Your results;
- the investments chosen for the portfolio may be volatile, and although the "purchase" or "sale" of an investment in a portfolio will not be effected in the portfolio until 15 minutes after an email alert has been issued from TheStreet server, delivery delays and other factors may cause the price You obtain to differ substantially from the price at the time the alert was sent; and
- the prices of investments in the portfolio at the point in time You begin subscribing to the Premium Service may be higher than such prices at the time such investments were chosen for inclusion in the portfolio.
Certain of the Premium Services are subject to additional disclosures and/or restrictions, as set forth below:
- Action Alerts PLUS: Action Alerts PLUS is written by James J. Cramer. He is a Markets Commentator for TheStreet and CNBC, and the Chairman and co-founder of TheStreet Mr. Cramer is subject to certain restrictions in transacting for his own benefit in securities he purchases for his Action Alerts PLUS portfolio. Specifically, Mr. Cramer must hold all securities in his Action Alerts PLUS portfolio for at least one month. In addition, he is not permitted to buy or sell any security he has spoken about on CNBC for five days following the broadcast.
- TheStreet Breakout Stocks: TheStreet Breakout Stocks is written by Bryan Ashenberg. He is a research analyst at TheStreet. As an editorial employee of TheStreet, Mr. Ashenberg is restricted from owning securities in individual companies other than stock or options in TheStreet.com, Inc. Investing in the stocks chosen for TheStreet Breakout Stocks model portfolio is risky and speculative. The companies may have limited operating histories and little available public information, and the stocks they issue may be volatile and illiquid. Trading in such securities can result in immediate and substantial losses of the capital invested. You should use only risk capital, and not capital required for other purposes, such as retirement savings, student loans, mortgages or education.
- Chairman's Club: Authors of Premium Services accessible through Chairman's Club subscription may be subject to additional restrictions. You should read those restrictions set forth herein.
- The Daily Swing Trade: The Daily Swing Trade is written by Alan Farley. He is a freelance writer and an Outside Contributor to RealMoney. Mr. Farley may not enter orders to purchase or sell securities mentioned in his service until 24 hours after publication of the issue in which the security is mentioned.
- TheStreet ETF Profits: TheStreet ETF Profits is written by a team of ETF specialists. TheStreet ETF Profits contains the Outside Contributors' own opinions. From time to time, any or all of the Outside Contributors or their affiliates may hold positions in securities mentioned and may trade for their own accounts. In cases where the position is held at the time of publication, appropriate disclosure is made.
- TheStreet Market Movers: TheStreet Market Movers is written by Ken Shreve. As an editorial employee of TheStreet, Mr. Shreve is restricted from owning securities in individual companies other than stock or options in TheStreet.com, Inc. Market Movers consists of a model portfolio of securities chosen by the author in accordance with his stated investment strategy.
- TheStreet Options Profits: TheStreet Options Profits is written by a team of options trading specialists. TheStreet Options Profits contains the Outside Contributors' own opinions. From time to time, any or all of the Outside Contributors or their affiliates may hold positions in securities mentioned and may trade for their own accounts. In cases where the position is held at the time of publication, appropriate disclosure is made.
- TheStreet Stocks Under $10: TheStreet Stocks Under $10 is written by David Peltier. He is a research associate at TheStreet. As an editorial employee of TheStreet, Mr. Peltier is restricted from owning securities in individual companies other than stock or options in TheStreet.com, Inc. TheStreet Stocks Under $10 portfolio is a model portfolio of stocks chosen by the author in accordance with his stated investment strategy. Investing in the stocks chosen for TheStreet Stocks Under $10 model portfolio is risky and speculative. The companies may have limited operating histories and little available public information, and the stocks they issue may be volatile and illiquid. Trading in such securities can result in immediate and substantial losses of the capital invested. You should use only risk capital, and not capital required for other purposes, such as retirement savings, student loans, mortgages or education.
- TheStreet Top Stocks: TheStreet Top Stocks is written by Helene Meisler. She also writes a technical analysis column on the U.S. equity markets for RealMoney, a Premium Service. At the time of publication, Ms. Meisler will not have a position in any security that she discusses in TheStreet Top Stocks. Furthermore, Ms. Meisler may not enter orders to purchase or sell securities mentioned in TheStreet Top Stocks until 24 hours after publication of the issue of TheStreet Top Stocks on which the security is mentioned.
4. Registration and Privacy
In order to gain access to portions of the Services, You must become a member by choosing a unique user name, member name and password, and supply us with true, accurate, current and complete information about yourself, as required on the registration page. We may refuse to grant You a user name and member name that is threatening, abusive, offensive, harassing, derisive, defamatory, vulgar, obscene, libelous, invasive of another's privacy, impersonates someone else, is or may be protected by trademark or proprietary rights law, or is hatefully, racially, ethnically or otherwise objectionable, or inappropriate, as determined by us in our sole discretion. In consideration of Your use of the Services, You represent that You are of legal age to form a binding contract and are not a person barred from receiving the Services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Services' registration form and (b) maintain and promptly update Your registration data to keep it true, accurate, current and complete.
As a member, You also have certain other obligations relating to Your account:
- You may not transfer to or resell Your use of or access to the Services to any third party;
- You are responsible for all activities that occur under Your account;
- You are responsible for maintaining the confidentiality of Your user name, member name and password; and
- You agree to notify us at email@example.com if You become aware of any possible unauthorized use(s) of Your account or any possible breach of security, including loss, theft, or unauthorized disclosure of Your user name, member name or password.
5. Subscription Cancellation for Premium Service
YOU SHOULD READ THESE TERMS CLOSELY BEFORE YOU SUBSCRIBE FOR A PREMIUM SERVICE.
During the free-trial portion of Your subscription, if any, You may cancel Your subscription to the Premium Service at any time and not be billed by notifying our Customer Service Department by telephone at 1-866-321-8726 Monday through Friday between the hours of 8:00 a.m. and 6:00 p.m. ET.
- Upon the commencement of your subscription (which occurs at the expiration of Your free trial, or if You are not receiving a free trial, upon your registration for a subscription) Your credit card will be billed the applicable subscription fee and Your paid subscription will commence.
- Monthly Subscribers - If You are a monthly subscriber, You will not receive a refund or reimbursement of Your monthly subscription fee. If You cancel Your monthly subscription, You will not be charged any future monthly subscription fees.
- Other Subscribers - If You are a subscriber for a term longer than a month (including annual subscribers), You may receive a refund of Your subscription fee for your recurring subscription term only if You cancel within thirty (30) days of the commencement of your subscription, or within thirty (30) days of your subscription renewal date. After that, although Your subscription may be terminated, You will not be entitled to any refund, reimbursement, or other credit.
- If You wish to cancel Your subscription within thirty (30) days of the commencement of Your subscription or the commencement of Your renewal, if applicable, you must notify our Customer Service Department by telephone at 1-866-321-8726 Monday through Friday between the hours of 8:00 a.m. and 6:00 p.m. ET. Your account will be credited within 7-14 business days following the call.
Please also read the Subscription Renewal provisions, below.
6. Subscription Renewal for Premium Service
YOU SHOULD READ THESE TERMS CLOSELY BEFORE YOU SUBSCRIBE FOR A PREMIUM SERVICE.
Your subscription will continue for the period referenced during registration (the "Term"), and renew automatically at the end of the Term, unless You notify us of Your decision not to renew Your subscription by calling our Customer Service Department. You can contact our Customer Service Department by telephone at 1-866-321-8726 Monday through Friday between the hours of 8:00 a.m. and 6:00 p.m. ET.
If You do not notify us as described above, the then-applicable monthly, periodic or annual fee for Your subscription will be billed automatically to the credit card account You designated during the registration process (or subsequently changed).
- If You are a monthly subscriber, You will not receive a refund or reimbursement of Your subscription fee after Your subscription has renewed.
- If You are a subscriber for a subscription term longer than a month (including annual subscribers), You may receive a refund of Your subscription fee for your recurring subscription term only if You cancel according to these terms within thirty (30) days of the date of Your subscription renewal. After that, although Your subscription may be terminated, You will not be entitled to any refund, reimbursement, or other credit.
In connection with recurring billing for subscription renewals, You authorize TheStreet to bill your credit card account number, regardless of whether the other information associated with Your subscription has changed, including but not limited to the expiration date of the physical card with which you subscribed. We may receive updated information about Your account from the financial institution issuing Your credit or charge card. You agree to pay all fees and charges incurred in connection with Your user name, member name and password (including any applicable taxes) at the rates in effect when the charges were incurred. You will have thirty (30) days from the date of charge to notify us concerning any discrepancies in Your credit card statement or any invoice; after that time, all charges will be deemed correct and no refunds will be given. You agree to pay all amounts due upon our demand. In the event we have to collect unpaid amounts You owe us, You will be liable for all of our attorneys' and collection agency fees.
7. TheStreet's Proprietary Rights
The Services and the content distributed through the Services, with the exception of any User-Generated Content (as defined below), is the property of TheStreet and/or its licensors. You may access and use the content, and download and/or print out one copy of any content from the Services, solely for Your personal, noncommercial use. You acknowledge that You do not acquire any ownership rights by using the Services. If You are interested in reprinting, republishing or distributing content from TheStreet, please see our Reprints page. If you choose to submit content for publication through the Services, such as guest commentary or guest opinions, such content shall be exclusive to TheStreet, deemed to be property of TheStreet, and by submitting such content you irrevocably assign any and all rights to such content to TheStreet.
Because we host User-Generated Content as a part of portions of the Services and therefore redistribute User-Generated Content You give us, we need to obtain certain rights in those materials. By posting, sending or transmitting to us User-Generated Content, You grant us and our designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such User-Generated Content in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the User-Generated Content. None of the User-Generated Content disclosed in any part of the Services shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we shall not be liable for any use or disclosure of any User-Generated Content.
"TheStreet.com", "TheStreet", the "TheStreet.com Logo", "RealMoney.com", "RealMoney", "MainStreet.com Where Life and Money Intersect", "Stockpickr", "BankingMyWay.com", and certain other marks used on TheStreet Portfolio of Websites are trademarks and/or service marks of TheStreet. All other trademarks, service marks, and logos used on TheStreet Portfolio of Websites are the trademarks, service marks, or logos of their respective owners.
8. User Conduct
You may not republish, upload, post, transmit or distribute content available through the Services to online bulletin boards, message boards, newsgroups, chat rooms, or in other any manner, without our prior written permission. Modification of the content or use of the content for any purpose other than Your own personal, noncommercial use is a violation of our copyright and other proprietary rights, and can subject You to legal liability.
In addition, in connection with Your use of the Services, You agree not to:
- Restrict or inhibit any other visitor from using the Services, including, without limitation, by means of "hacking" or defacing any portion of any of our websites;
- Use the Services for any unlawful purpose;
- Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Services or any of our websites;
- "Frame" or "mirror" any content available through the Services or any of our websites without our prior written authorization;
- Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, retrieve, index, "data mine", or in any way reproduce or circumvent the navigational structure or presentation of the content available through the Services or any of our websites; or
- Harvest or collect information about users of the Services without their express consent.
You also agree that at all times You will:
- Comply with all applicable laws, rules and regulations in connection with Your use of the Services and the content made available therein;
- Be responsible for all statements made and acts or omissions that occur on Your user account while Your password is being used;
- Waive any and all rights against TheStreet and hold TheStreet harmless in connection with any claims relating to any action taken by TheStreet as part of its investigation of a suspected violation or result of its conclusion that a violation of the TOU has occurred, including but not limited to the removal of posts or a suspension or termination of Your membership account; or
- Maintain and promptly update Your registration data to keep it true, accurate, current and complete.
9. User-Generated Content
Certain areas of TheStreet Portfolio of Websites may allow You to post content that can be accessed and viewed by the public in general. You understand that all information, data, text, images, avatars, hyperlinks, messages, tags, or other materials, each a form of User-Generated Content posted on the public areas of TheStreet Portfolio of Websites are the sole responsibility of the person from whom such content originated. You acknowledge that You, and not TheStreet, are entirely responsible for all content that You upload, post, email, transmit or otherwise make available via Services thereof. TheStreet does not control the User-Generated Content and as such, does not guarantee the accuracy, integrity, timeliness or quality of such content. You agree to not post any content that violates the TOU and to post comments in both tone and content that contribute in a positive and high quality manner to the substantive exchange of information and the subject matter of the content.
In order to comment, users must register with a valid email address and select a user name, member name and password. Please see "Registration and Privacy" above for our TOU regarding registering.
The following is an incomplete list of illegal and prohibited uses of Services. TheStreet may investigate any illegal and/or unauthorized use of the Services and appropriate legal action may be taken, including without limitation, civil, criminal and injunctive redress.
You agree not to use TheStreet Services to:
- Post any content that You either know or should know is false, deceptive or misleading, or misrepresent or deceive others as to the source, accuracy, integrity, timeliness or completeness of any comment You post.
- Express or imply that any statements You make are endorsed by us, without our prior written consent;
- Post any content that is unlawful, harmful or injurious to others, threatening, abusive, offensive, harassing, derisive, defamatory, vulgar, obscene, libelous, hatefully, racially, ethnically or otherwise tortious or objectionable.
- Post any content that does or may invade the privacy or violate or infringe on any rights of others, including, without limitation, copyrights and other intellectual property rights.
- Impersonate any person, firm or entity, falsely or deceptively state, infer or otherwise misrepresent Your affiliation with or connection to any person, firm or entity.
- Post any content which, either the act of posting or the comment itself, You do not have a right to do under any law, regulation or order of any court, or as a result of an employment, contractual, fiduciary or other legal obligation or relationship, or any non-public or otherwise restricted, confidential, sensitive or proprietary information without authorization
- Post any advertising, promotional materials, so called "chain letters", "pyramid" or other schemes or invitations to participate in these or any other form of solicitation or promotion.
- Offer to sell or buy any product or service or use the services for any commercial purpose, to distribute any advertising or solicitation of funds or goods and services, or to solicit users to join competitive online services.
- Post any links to any external Internet sites that are obscene or pornographic, or display pornographic or sexually explicit material of any kind.
- Post any false or misleading information, material non-public information, insider information or information intended to increase or decrease the price of any particular publicly-traded security. Violate any local, state, national or international law, regulation or order of any court, including but not limited to regulations of the U.S. Securities and Exchange Commission, any rules of any securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or The Nasdaq Stock Market and/or
- Provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
You may post only content owned by You, content for which You have received express permission from the owner and content in the public domain. You assume all risk and responsibility for determining whether any User-Generated Content is in the public domain.
TheStreet expressly disclaims ownership of any User-Generated Content. However, by submitting User-Generated Content to the public areas of the TheStreet Portfolio of Websites, You hereby grant, transfer and assign TheStreet, our affiliates and distributors, successors, assigns and licensees a fully-paid, royalty-free, irrevocable, perpetual, worldwide right and license to publish, distribute, reproduce, transmit, use, translate, display, copy, display, perform, modify, revise, create derivative works of, archive and adapt this content in any form or media now known or hereafter developed (including without limitation in print, magnetic or electronic form), on any number of occasions in any form, and to sublicense third parties (including other users of the Services) to do any of the foregoing with further right of sublicense, without compensation to You. You represent and warrant that You are authorized to grant all rights set forth in the preceding sentence and that the exercise by You of Your rights under this License does not violate any laws, defame or libel any person, invade any person's right of privacy or publicity or otherwise violate, misappropriate or infringe the rights of any person (including without limit any copyright or moral right). None of the User-Generated Content disclosed in any part of the Services shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we shall not be liable for any use or disclosure of any User-Generated Content. TheStreet does not and cannot review all of the User-Generated Content posted by users on the Services and is not responsible for such content. You shall remain solely responsible for all User-Generated Content submitted to TheStreet. Your use of any User-Generated Content shall be at your own risk and TheStreet makes no representations or warranties regarding User-Generated Content. Users should be cautious about any and all investment recommendations and should consider the source of any investment advice. Various factors, including personal or corporate ownership, may influence or factor into User-Generated Content. Stockpickr does not control the User-Generated Content posted via the Services and, as such, does not guarantee the accuracy, integrity, timeliness, or quality of such User-Generated Content. You understand that by using the Services, you may be exposed to User-Generated Content that is offensive, indecent or objectionable. Although TheStreet reserves the right to remove any offending User-Generated Content, You understand and agree that You nonetheless may be exposed to such material and that You further waive Your right to any damages (from any party) related to such exposure.
TheStreet retains the right in its sole discretion, arbitrarily and/or for any reason and without any notice whatsoever, to edit, move, delete, and/or remove any User-Generated Content posted on any of its websites at any time. Without limiting the foregoing, TheStreet has the right to delete any User-Generated Content that TheStreet believes, in its sole discretion, does or may violate the TOU.
You expressly agree that under no circumstances is TheStreet responsible, nor will TheStreet be liable for, any User-Generated Content or for any loss or damage of any kind, that arises or results from such User-Generated Content posted on any of its websites, or any comment deleted by TheStreet or its agents from any of its websites. This includes not only the comments posted, but also any external websites or resources, content, advertising, products, services or any other materials or information on or available from any person, firm or entity other than TheStreet, posted on any of its websites.
10. Links to Other Websites and Viral Links
Your use of certain features made available to You by TheStreet may be governed by additional rules, which are available on our websites or by hyperlink from other websites, in connection with the Services. By using any feature You are acknowledging that You have reviewed all corresponding rules and agree to be bound by them. Some of the features may have been provided by third parties for Your use. In the event that any feature or tool is provided by a third party, such feature or tool may become unavailable in the event that the agreement between us and the third party is terminated. You expressly acknowledge and agree that Your use of all features and tools is solely at Your own risk.
Any sweepstakes, contests, and games that are accessible through our websites are governed by specific rules. By entering such sweepstakes or contests or participating in such games, You will become subject to those rules.
Content available through the Services may contain links to other Internet websites or resources. We neither control nor endorse such other websites, nor have we reviewed or approved any content that appears on such other websites. You acknowledge and agree that we shall not be held responsible for the legality, accuracy, timeliness, or inappropriate nature of any content, advertising, products, services, or information located on or through any other websites, nor for any loss or damages caused or alleged to have been caused by the use of or reliance on any such content.
You are encouraged to link to the Services on any online bulletin board, message board, newsgroup, website or chat room ("Third-Party Site"). If You elect to display links from our websites on a Third-Party Site, You agree that You will comply with TheStreet's viral linking requirement as set forth herein. Notwithstanding anything contained herein, we reserve the right to deny permission to You to link to the website for any reason in our sole and absolute discretion.
TheStreet hereby grants You the permission to post such links on a Third-Party Site, provided, however, that You comply with the following guidelines:
- You may display only an excerpt of the content not to exceed 75 words that must be followed by a link to the full content of the Service. You are not permitted to reproduce the entire text of content as it appears on the website. You are prohibited from displaying excerpts from the Premium Service.
- The byline must consist of the name or title of the content and the name of the website. (e.g. "as appearing on TheStreet")
Any website that links to TheStreet Portfolio of Websites (a) must not suggest or imply that we are sponsoring or endorsing such website(s)'s product, unless TheStreet has given its prior written consent; (b) must not use any of our trademarks on such Third-Party Site without prior written consent of TheStreet; and (c) must not display any excerpt of TheStreet content and link together with content on such Third-Party Site that may be construed as distasteful, offensive or controversial.
11. Disclaimer of Warranties
The Services, and any content obtained or accessed through the Services, is provided "as is" without representations or warranties of any kind, either express or implied. To the fullest extent permissible pursuant to applicable law, TheStreet, its officers, directors, employees, subsidiaries, affiliates, suppliers, advertisers, and agents disclaim all warranties, express, implied or statutory, including, but not limited to, implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose or use, and all warranties relating to the adequacy, accuracy, timeliness or completeness of any information available through the Services.
TheStreet and its affiliates, suppliers, agents and sponsors do not warrant that Your use of the Services will be uninterrupted, error-free, or secure, that defects will be corrected, or that the Services or the server(s) on which the Services are hosted are free of viruses or other harmful components. You acknowledge that You are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed to access and use the Services, and all charges related thereto. You assume total responsibility and risk for Your use of the Services and Your reliance thereon. No opinion, advice, or statement of TheStreet or its affiliates, suppliers, agents, members, or visitors, whether made on the site or otherwise, shall create any warranty. You use of the site, the content contained therein, and materials provided through the site, are entirely at Your own risk.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such advertiser. You agree that TheStreet shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Services.
A possibility exists that content available through the Services could include inaccuracies or errors, or materials that violate the TOU. Additionally, a possibility exists that unauthorized alterations could be made to the content available through the Services by third parties. Although we attempt to ensure the integrity of our websites and Services, we make no guarantees as to the completeness or correctness of any content available through the Services. In the event that such a situation arises, please contact us at firstname.lastname@example.org with, if possible, a description of the material to be checked and the location (URL) where such material can be found on our websites, if applicable, as well as information sufficient to enable us to contact You. We will try to address Your concerns as soon as reasonably practicable. For copyright infringement claims, see the section on "Copyright Infringement" below.
Under no circumstances shall TheStreet be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
12. Limitation of Liability
NEITHER THESTREET NOR ITS AFFILIATES, SUPPLIERS, SUBSIDIARIES, ADVERTISERS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES AND/OR ANY CONTENT CONTAINED THEREIN, OR ANY SERVICES USED OR PURCHASED THROUGH THESTREET, WHETHER SUCH DAMAGE IS FORESEEABLE OR NOT AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR AVOIDANCE OF DOUBT, DAMAGES ARISING UNDER THE SECTION ENTITLED "INDEMNIFICATION" (INCLUDING WITHOUT LIMITATION DAMAGES TO WHICH A PARTY IS ENTITLED TO INDEMNIFICATION UNDER SUCH SECTION THAT SUCH PARTY SUFFERS IN CONNECTION WITH THIRD PARTY CLAIMS FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES) ARE DEEMED TO BE DIRECT DAMAGES OF THE INDEMNIFIED PARTY. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING IT. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO COMPANY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE SHALL BE THE TOTAL AMOUNT PAID TO US BY YOU, IF ANY, FOR ACCESS TO THE SERVICES IN THE CURRENT CALENDAR YEAR OF YOUR SUBSCRIPTION.
You agree to indemnify, defend and hold harmless TheStreet our current and former affiliates, our current and former officers, directors, employees, agents and representatives and their successors and assignees from and against any and all liabilities, claims, (including, without limitation, third-party claims), damages, losses, costs (including reasonable attorneys' fees), or other expenses associated with or incurred as a result of or from (a) Your violation of the TOU; (b) Your use of the Services; (c) Your violation of the rights of any third party; (d) the actual or alleged infringement of any third party proprietary or intellectual property right arising out of the duplication, sale, distribution, or use of the Services, or (e) any liability arising from Your use of the Services including any User-Generated Content You create.
TheStreet reserves the right to restrict, suspend or terminate Your use of and registration on any of its websites at any time for any reason in its sole discretion, with or without cause, without prior notice to You and without liability or further obligation of any kind whatsoever to You or any other party. TheStreet reserves the right to terminate Your access to any portion of the Services and, in some cases in the sole discretion of TheStreet, Your membership in the Premium Services, in the event You violate the TOU. In such case, You will not be entitled to receive a refund of any portion of the subscription fee paid by You.
You may terminate Your user account, user name, member name any associated email address and access to the Services by submitting such termination request to us.
15. Copyright Infringement
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. The procedure under the DMCA for takedown notice is given below. See http://loc.gov/copyright/ for the most current statutory requirements.
If You believe in good faith that materials displayed on TheStreet Portfolio of Websites infringe Your copyright, You (or Your agent) may contact: Copyright Agent, Legal Department, TheStreet.com, Inc. 14 Wall Street, 15th Floor, New York, New York 10005; telephone: (212) 321-5000; fax: (212) 321-5016; email: email@example.com, with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or trademark interest; (b) a description of the copyrighted work(s) or trademark(s) that You claim has been infringed; (c) a description of where the material that You claim is infringing is located on the website; (d) Your address, telephone number, and email address; (e) a written statement by You that You have a good faith belief that the disputed use is not authorized by the copyright or trademark owner, its agent, or the law; and (f) a statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright or trademark owner or authorized to act on the copyright or trademark owner's behalf. Please note that You will be liable for damages (including costs and attorneys' fees) if You materially misrepresent that any material on our sites is infringing Your copyrights.
16. Repeat Infringement
We have a policy of terminating the accounts of repeat infringers or otherwise taking reasonable steps to prevent such users from continuing to post. Each user agrees that if his or her account is terminated under this policy, the user will not attempt to establish a new account or otherwise post content under any name, real or assumed, and further agrees that if the user violates this restriction by opening a new account or otherwise posting content after being terminated pursuant to this policy, the user shall indemnify and hold us harmless for any and all liability that we may incur therefor.
The Services are directed solely to individuals residing in the United States. We make no representation that materials provided through the Services are appropriate or available for use in other locations. Those who choose to access the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. We reserve the right to limit the availability of the Services to any person, geographic area, or jurisdiction we so desire, at any time and in our sole discretion, and to limit the quantities of any such service that we provide.
You are responsible for promptly paying all fees associated with your use or purchase of the Services (the "Fees") at the time of purchase. You are also responsible for any applicable federal, state, or local franchise fees, surcharges, sales and use taxes, and any other taxes (except those related to TheStreet's net income) related to the Services (collectively, the "Taxes"). You shall promptly pay all Taxes at the time of purchase. The TOU, together with all TheStreet policies referred to herein, constitutes the entire agreement between You and TheStreet relating to Your use of the Services and supersedes and any all prior or contemporaneous written or oral agreements on that subject between us. The TOU and the relationship between You and TheStreet are governed by and construed in accordance with the laws of the State of New York, excluding (a) the application of principles of conflict of laws that otherwise might call for the application of the substantive law of another jurisdiction and (b) the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You and TheStreet agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within New York County, New York, waive any jurisdictional venue, or inconvenient forum objections to such courts and such courts shall have the sole and exclusive jurisdiction over any action, suit or other proceeding arising out of or relating to these TOU. If any provision of the TOU is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the TOU and shall not affect the validity and enforceability of any remaining provisions. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in the TOU is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. We reserve the right to require You to sign a non-electronic version of the TOU.
To the extent You are accessing the Services through a TheStreet approved mobile application, a portion of underlying software for the mobile application may be provided by ShareKit pursuant to the license below. For the avoidance of doubt, the "Software" referred to in the italicized paragraph below applies solely to the ShareKit Open Source Code and does not apply to any improvements, modifications or alterations made by TheStreet.
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
18. Legal Notices
California residents may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, CA 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
For all other notices, please contact us in writing: Legal Department, TheStreet.com, Inc. 14 Wall Street, 15th Floor, New York, New York 10005, fax: (212) 321-5016; email: firstname.lastname@example.org.