TERMS OF SERVICE
LAST UPDATED: July 2017
Please read these Terms of Service (the “Agreement”) carefully. Your use of the Online Services (as defined below) constitutes your consent to this Agreement.
This Agreement is between you and The Deal, LLC a wholly owned subsidiary of TheStreet, Inc., (collectively, “TD” or “we” or “us” or “our”) concerning your use of (including any access to) our websites that contain a link to this Agreement, including TheDeal.com (together with any materials and services available therein, and successor site(s) thereto, the “Site”), and our mobile apps that contain a link to this Agreement (together with any materials and services available therein, and successor app(s) thereto, the “App”). The Site and the App are collectively referred to as the “Online Services” in this Agreement.
This Agreement hereby incorporates by this reference any additional terms and conditions posted by TD through the Online Services, or otherwise made available to you by TD.
THE ONLINE SERVICES ARE DIRECTED TO BUSINESS USERS. IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE ONLINE SERVICES ON BEHALF OF, OR FOR THE BENEFIT OF, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY WITH WHICH YOU ARE ASSOCIATED (AN “ORGANIZATION”), THEN YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT. References to “you” and “your” in this Agreement will refer to both the individual using the Online Services and to any such Organization.
1. Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Online Services. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Online Services following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Online Services, including any newsletters available through the Online Services, and including access to the Online Services via any third-party links; charge, modify or waive any fees required to use the Online Services; or offer opportunities to some or all Online Services users.
3. Jurisdictional Issues. The Online Services are controlled or operated (or both) from the United States, and are not intended to subject TD to any non-U.S. jurisdiction or law. The Online Services may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Online Services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Online Services’ availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Rules of Conduct. In connection with the Online Services, you must not:
- Post, transmit or otherwise make available through or in connection with the Online Services any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
- Post, transmit or otherwise make available through or in connection with the Online Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
- Use the Online Services for any purpose that is fraudulent or otherwise tortious or unlawful.
- Use the Online Services to determine a consumer’s eligibility for (a) credit or insurance for personal, family or household purposes; (b) employment; or (c) any government license or benefit.
- Harvest or collect information about users of the Online Services.
- Interfere with or disrupt the operation of the Online Services or the servers or networks used to make the Online Services available, including by hacking or defacing any portion of the Online Services; or violate any requirement, procedure or policy of such servers or networks.
- Restrict or inhibit any other person from using the Online Services.
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Online Services except as expressly authorized herein, without TD’s express prior written consent. For clarity, you must not republish, upload, post, transmit or distribute content available through the Online Services to any online bulletin board, message board, newsgroup or chat room, through e-mail, or in other any manner, without our express prior written permission.
- Reverse engineer, decompile or disassemble any portion of the Online Services, except where such restriction is expressly prohibited by applicable law.
- Remove any copyright, trademark or other proprietary rights notice from the Online Services.
- Frame or mirror any portion of the Online Services, or otherwise incorporate any portion of the Online Services into any product or service, without TD’s express prior written consent.
- Systematically download and store Online Services content.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Online Services content, or reproduce or circumvent the navigational structure or presentation of the Online Services, without TD’s express prior written consent.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Online Services.
5. Products. The Online Services may make available newsletters, alerts, reports and other content (which, in each case, may be made available in electronic and/or hard copy formats) (“Content”), and opportunities to attend webinars, conferences and other events (“Events”), and information, listings, descriptions and images of Content and Events and discounts and other offers regarding Content and Events (collectively (including Content and Events), “Products”), as well as references and links to Products. Such Products may be made available by The Deal or by third parties, and may be made available for any purpose, including general information purposes. The availability through the Online Services of any listing, description or image of a third-party Product does not imply our endorsement of such Product or affiliation with the provider of such Product. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product (including the validity of any discount) are subject to change at any time without notice. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase, possession and use of any Product. Your access to or use of Products may be subject to one or more TD order forms and supplemental terms and conditions applicable to such Products; if so, any such TD order form(s) and supplemental terms and conditions are hereby incorporated by this reference into this Agreement.
6. Registration; User Names and Passwords. You may need to register to use all or part of the Online Services, in accordance with our registration policies and procedures. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your individual use only, and must be kept confidential and not shared (even within an Organization); you, and not TD, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Online Services account.
7. Profiles and Forums. Online Services visitors may make available certain materials (each, a “Submission”) through or in connection with the Online Services, including on profile pages or on the Online Services’ interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality. TD has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE ONLINE SERVICES, YOU DO SO AT YOUR OWN RISK.
AS A REMINDER, YOU MAY NOT POST OR OTHERWISE SUBMIT ANY MATERIALS, COMMENTS OR OTHER SUBMISSIONS (AS DEFINED BELOW) THAT ARE THREATENING, HARASSING, DEGRADING, HATEFUL OR INTIMIDATING, AS DETERMINED BY US IN OUR SOLE DISCRETION, OR OTHERWISE FAIL TO RESPECT THE RIGHTS AND DIGNITY OF OTHERS. In the event you violate the foregoing restriction, or otherwise violate our Rules of Conduct in Section 4 above, we may cancel your subscription, if applicable, to the Online Service, or otherwise suspend your access to and use of all or any portion of the Online Service, without notice to you.
8. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Online Services or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place TD under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Online Services, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
9. Monitoring. We may (but have no obligation to) monitor, evaluate, alter or remove Submissions before or after they appear on the Online Services, or analyze your access to or use of the Online Services. We may disclose information regarding your access to and use of the Online Services, and the circumstances surrounding such access and use, to anyone for any reason or purpose.
10. Your Limited Rights. If you are a businessperson permitted by TD to use the Online Services under this Agreement, then, subject to your compliance with this Agreement and solely for so long as you are so permitted, we hereby grant to you the right (on a limited, non-exclusive, revocable, non-transferable and non-sublicensable basis) to:
- view one (1) digital copy of any portion of the Site to which we provide you access under this Agreement, on any single device, solely for your internal business use;
- install and use the App on a mobile device that you own or control, solely for your internal business use;
- print and view, solely for your internal business use, one (1) paper copy of any information on the Online Services that we have permitted you to access, and for which we have provided a labeled “print” functionality;
- download and view, solely for your internal business use, one (1) digital copy of any information on the Online Services that we have permitted you to access, and for which we have provided a labeled “download” functionality;
- download and export into a spreadsheet program, solely for your internal business use, one (1) digital copy of any information on the Online Services that we have permitted you to access, and for which we have provided such an export functionality; and
- where so permitted through Online Service functionality made available by us, share links to certain Content hosted on the Online Service with others via third-party social media networks, provided that any third party seeking to access such linked-to Content may be require to have registered with us to use the Online Service.
If any other individuals within your Organization are permitted to use the Online Services, they must do so using their own user account; you may not share use of the Online Services, including copies of any information on the Online Services, with any other individuals, whether within your Organization or otherwise.
Please note that the App is licensed (not sold) to end users, as set forth above. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device.
11.TD’s Proprietary Rights. We and our suppliers own the Online Services, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include but are not limited to THE DEAL and PRIVATERAISE, and any associated logos. All trade names, trademarks, service marks and logos on the Online Services not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Online Services should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
12. Third Party Materials; Links. Certain Online Services functionality may make available access to information, products, services and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by TD with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Online Services at any time. In addition, the availability of any Third Party Materials through the Online Services does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
14. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE ONLINE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) TD DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE ONLINE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND SATISFACTORY QUALITY. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH THESTREET, INC., ITS AFFILIATES AND ITS AND THEIR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, AND THE RESPECTIVE SHAREHOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS AND REPRESENTATIVES OF THE FOREGOING (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
NEITHER THE ONLINE SERVICES NOR ANY PRODUCTS ARE INTENDED AS, NOR SHOULD THEY BE CONSTRUED OR RELIED UPON AS, ADVICE REGARDING ANY INVESTMENT, FINANCIAL, TAX, ACCOUNTING OR LEGAL MATTER OR ISSUE. PLEASE CONSULT A QUALIFIED ADVISOR REGARDING ANY SUCH MATTERS OR ISSUES.
While we try to maintain the timeliness, integrity and security of the Online Services, we do not guarantee that the Online Services are or will remain updated, complete, correct or secure, or that access to the Online Services will be uninterrupted. The Online Services may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Online Services. If you become aware of any such alteration, contact us at firstname.lastname@example.org with a description of such alteration and its location on the Online Services.
15. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) TD WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, OR DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, TD WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE ONLINE SERVICES, FROM ANY ERRORS OR OMISSIONS IN THE ONLINE SERVICES, FROM ANY RELIANCE ON THE ONLINE SERVICES, OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH, REGARDLESS OF ANY ASSISTANCE THAT TD MAY HAVE PROVIDED; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE ONLINE SERVICES OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE ONLINE SERVICES; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF TD FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF (I) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO TD SOLELY FOR THE RIGHT TO USE THE ONLINE SERVICES. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH TD AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
16. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless TD and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Online Services (including all Submissions); and (b) any violation or alleged violation of this Agreement by you.
17. Termination. This Agreement is effective until terminated. TD may terminate or suspend your use of the Online Services at any time and without prior notice, for any or no reason, including if TD believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Online Services will immediately cease, and TD may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 2–9 and 11–24 shall survive any expiration or termination of this Agreement.
18. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND TD, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT TD AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules, as amended by this Agreement. The Commercial Arbitration Rules are available online at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTG_004103&revision=latestreleased. Any in-person appearances will be held in New York County, New York State. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
19. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that TD does not endorse any of the products or services listed on such site.
20. Information or Complaints. If you have a question or complaint regarding the Online Services, please send an e-mail to email@example.com. You may also contact us by writing to Customer Service, The Deal LLC, 14 Wall Street, 15th Floor, New York, NY 10005, or by calling us at (212) 313-9251 or 1-888-667-3325. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
21. Copyright Infringement Claims. 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. If you believe in good faith that materials available on the Online Services infringe your copyright, you (or your agent) may send to TD a written notice by mail, e-mail or fax, requesting that TD remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to TD a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Heather Mars as follows: By mail to General Counsel, The Deal LLC, 14 Wall Street, 15th Floor, New York, NY 10005; by e-mail to firstname.lastname@example.org. The General Counsel’s phone number is 212-321-5002.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
22. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
23. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and TD. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and TD relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and TD relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Online Services or by e-mail (including in each case via links), or by regular mail. Any notices to TD under this Agreement must be made in writing to Customer Service, The Deal LLC, 14 Wall Street, 15th Floor, New York, NY 10005. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. TD will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
24. Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to TD in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, TD’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
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