1. BINDING AGREEMENT
1.2 Bdellium, Inc., a Delaware corporation (“Bdellium”) provides websites using the top-level domain names bdellium.com, qdia.com and pdor.com, bdtools.com, rfptools.com and using sub-domains under these top level domains (each a “Site”, collectively the “Sites”).
2. DEFINED TERMS
2.1 “Affiliate” means in relation to any party, any person or entity to any degree owning, owned by or under common ownership with, such party or any person or entity effectively controlling, controlled by or under common control with, such party.
2.2 “Authorized User” means a person who is properly granted Credentials and authorized under a License Agreement to access and use any Site.
2.3 “Bdellium” means Bdellium, Inc., a Delaware corporation.
2.4 “Bdellium Parties” means Bdellium, its Affiliates, partners, licensors, merchants, information providers and others involved in the delivery or any Site or Content, and their respective shareholders, directors, officers, managers, members, employees, contractors and agents.
2.5 “Content” means text, graphics, logos, images, audio, video, software (including the underlying source code of a Site), features, services, and other materials, including any compilation, collection or arrangement thereof, forming part of a Site or any service provided through a Site.
2.6 “Credentials” means a user identification and password that may be updated from time to time.
2.7 “License Agreement” means a written agreement between Bdellium and a third party incorporating the terms and conditions under which such third party may access and use any Site.
2.8 ‘Personally Identifiable Information” means information that can personally identify any individual, including but not limited to any individual’s name or social security number, and/or any information deemed to be personally-identifiable information under applicable federal and state laws,
2.10 “Registration Data” means information provided by an Authorized User upon creation of a user account through which such Authorized User can access and use a Site, including but not limited to the person’s full name, company name and contact information.
2.11 “Site” means any website provided by Bdellium, including those using the top-level domain names www.bdellium.com, www.bdtools.com, www.pdor.com, www.rfptools.com, www.qdia.com and using sub-domains under these top level domains.
3.1 Bdellium reserves the right at any time and without notice to change, amend, or cease providing Content. Bdellium may also make improvements and/or changes to any products, programs, features or services provided on a Site at any time without notice.
3.2 Content has been obtained from sources believed to be reliable, but its timeliness, accuracy and completeness are not guaranteed. Bdellium is under no obligation to update or otherwise change Content. You must not rely on Content and you acknowledge and agree that you must take appropriate steps to verify Content before acting upon it. You acknowledge and agree that neither Bdellium nor independent third-party Content providers shall have any liability, contingent or otherwise, for the accuracy, completeness, timeliness, or correct sequencing of Content, or for any decision or action you take or do not take as a result of accessing or using any portion of a Site or in reliance on any Content.
4. ACCESS AND USE
4.2 You may not access, use, copy, modify, create derivative works of, publicly display or perform, republish, store, transmit, distribute, sell, resell or exploit for commercial purposes any portion of a Site or Content without the prior written consent of Bdellium. You agree not to modify or use any Content in any way that is contrary to applicable laws, detrimental to Bdellium or that might reasonably be considered false or misleading. You also agree not to alter or remove any copyright or other proprietary notices, trademark legend, author attribution or other notice placed on or contained in Content. You agree not to damage, interfere with or disrupt access to any Site or do anything which may interrupt or impair its functionality.
4.4 Bdellium makes no representation that a Site or Content is appropriate for use in your location and accessing a Site or Content from a location where such action is illegal is prohibited. You acknowledge and agree that you are solely responsible for complying with all applicable laws and regulations and for obtaining appropriate regulatory and other approvals related to your access and use of any Site or Content.
5. AUTHORIZED USER
5.4 Nobody except an Authorized User may access or use any non-public portion of a Site or Content. It is your personal obligation to keep your Credentials confidential and secure and for all activities, charges and/or liabilities that occur from or based upon your user account, whether or not such activities, charges and/or liabilities are authorized by you. You must not share your Credentials with anybody else or permit anyone to access any portion of a Site or Content using your Credentials. You must immediately notify Bdellium if you have any reason to believe that the security or confidentiality of your Credentials has been compromised or that some other breach of your user account security has occurred or is threatened.
6. USER CONDUCT
6.1 Any content and/or opinions uploaded, expressed or submitted to a message board, chat room, newsgroup or similar communications service that may be available to you on or through a Site and all articles and responses to questions, are solely the opinions and responsibility of the person or entity submitting them and do not necessarily reflect the opinions of Bdellium. You understand and acknowledge that you are responsible for whatever content you submit, and you, not Bdellium, have full responsibility for such content, including its legality, reliability and appropriateness.
6.2 By uploading or otherwise transmitting material to any area of a Site, you warrant that the material is your own, is in the public domain, and is otherwise free of proprietary or other restrictions and that you have the right to use it, including by posting it to a Site. You grant to Bdellium, its Affiliates and licensees an irrevocable, perpetual, non-exclusive, transferable, royalty-free, and worldwide license (with the right to sublicense) to use all such content you upload or otherwise transmit to a Site in any manner Bdellium chooses, including but not limited to copying, displaying or performing, or publishing it in any format whatsoever, and modifying it, incorporating it into other material or making a derivative work based on it.
6.3 Bdellium reserves the right, but does not assume any responsibility, to remove from a Site any material posted by you, which Bdellium, in its sole discretion, deems inconsistent with the foregoing commitments, including any material Bdellium has been notified, or has reason to believe, constitutes a copyright or other intellectual property right infringement. However, Bdellium can neither review all material prior to transmission on a Site nor ensure prompt action with respect to objectionable material after it is transmitted on a Site. Accordingly, Bdellium shall not have any liability for any action or inaction regarding transmissions, communications or other content that is provided by third parties.
7. PROHIBITED USES
7.2 You are not authorized to use a Site or Content or any linked website in any manner that could damage, disable, overburden, or impair a Site (or the network(s) connected to a Site) or interfere with any other party’s use and enjoyment of a Site or Content.
7.3 Specifically you agree not to do any of the following: (a) upload to, or transmit on a Site any threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, indecent, obscene, excessively violent or otherwise objectionable material, or any material that is, or may be, protected by copyright or trademark protections, without permission from the copyright or trademark owner; (b) use a Site to violate the legal rights of others including, without limitation, their rights of publicity and privacy; (c) intercept or attempt to intercept electronic mail not intended for your receipt; (d) misrepresent an affiliation with any person or organization; (e) restrict or inhibit other users’ use of a Site; (f) upload or otherwise transmit files or other materials that contain a virus or otherwise corrupted data; (g) download a file or software or include in a message any software, files or links that you know, or have reason to believe, cannot be distributed legally over a Site or that you have a contractual obligation to keep confidential (notwithstanding its availability on a Site); (h) you will not harvest or collect information about users of any Site or Bdellium service or use such information for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic e-mail or communications; or (i) use a Site for any other unlawful purpose, including encouraging conduct that constitutes a criminal offense or gives rise to a violation of any law.
8. INTELLECTUAL PROPERTY RIGHTS
8.2 The “Bdellium” logo is a registered trademark of Bdellium. The names, terms and/or marks “We Help Business Grow”, “Plan Design Optimization Report”, “QDIA Blue Book”, “QDIA Suitability Rating” and “Personal Analysis of Retirement Strategies” and all related product and service names, designs and slogans are the trademarks or service marks of Bdellium. All other product and service marks on a Site are the trademarks of their respective owners.
8.3 Bdellium welcomes your comments. All comments, suggestions, or other information sent by you to a Site (other than postings to publicly available portions of a Site, such as message boards or chat rooms) for internal use by Bdellium or its business partners or in response to solicitations on a Site, will become Bdellium’s property and you agree that all intellectual property rights therein are transferred to Bdellium.
9. NOT AN INVESTMENT ADVISER OR FIDUCIARY
9.1 The Sites and all Content are provided for informational purposes only. You acknowledge and agree that (a) The Bdellium Parties are not acting as and are not affiliated with an investment manager, advisor, plan sponsor, fiduciary, broker dealer or consultant and are not engaged in providing investing, legal, accounting, fiduciary or related professional services; (b) Bdellium does not recommend any financial product; (c) nothing on a Site or in Content should be construed as an offer, nor the solicitation of an offer, by any Bdellium Party to buy or sell securities; and (d) information which may be referred to on a Site or in Content from time to time may not be suitable for you or your clients and any action taken by you or any third party based on any Site or Content shall be at your sole judgment and own risk.
10.2 You acknowledge and agree that (a) you are explicitly prohibited from disclosing any Personally Identifiable Information to Bdellium and (b) Bdellium shall not have any liability in any way directly or indirectly connected with its receipt, retention or treatment of Personally Identifiable Information provided by you or through your user account or for any breach by any person of this prohibition.
11.1 EACH SITE AND CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE BDELLIUM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
11.2 THE BDELLIUM PARTIES MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, OR AVAILABILITY OF ANY SITE OR CONTENT. SPECIFICALLY, BUT WITHOUT LIMITING THE FOREGOING, THE BDELLIUM PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT (a) ANY SITE OR CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED; (b) A SITE WILL PERFORM IN EVERY OPERATING ENVIRONMENT; (c) DEFECTS CAN OR WILL BE CORRECTED; (d) ANY SITE OR THE SERVERS USED TO MAKE A SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (e) ANY SITE OR CONTENT WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS; OR (f) ANY SITE OR CONTENT COMPLIES WITH THE SECURITIES LAWS OF ANY JURISDICTION OR WITH THE REQUIREMENTS OF FINRA OR ANY OTHER REGULATORY BODY IN ANY JURISDICTION IN WHICH A SITE OR CONTENT IS ACCESSED OR USED.
12. LIMITATION OF LIABILITY
12.1 IN NO EVENT WILL ANY OF THE BDELLIUM PARTIES BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, A SITE OR ANY LINKED SITE, OR ANY CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DAMAGES RESULTING FROM DELAY, INTERRUPTION IN SERVICE, VIRUSES, DELETION OF FILES OR ELECTRONIC COMMUNICATIONS, OR ERRORS, OMISSIONS, OR OTHER INACCURACIES IN A SITE OR CONTENT CONTAINED OR TRANSMITTED ON A SITE, WHETHER OR NOT THERE IS NEGLIGENCE BY ANY OF THE BDELLIUM PARTIES AND WHETHER OR NOT ANY OF THE BDELLIUM PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
12.2 Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, the liability of the Bdellium Parties in such jurisdictions shall be limited to the extent permitted by law. If, notwithstanding the above, any of the Bdellium Parties is found liable for any loss or damage relating to the use of a Site or Content, you agree that the aggregate liability of the Bdellium Parties shall in no event exceed, in the aggregate for all claims, the fee or charge you have paid to Bdellium in connection with the transaction from which your claim arises.
12.3 YOU AND BDELLIUM EACH ACKNOWLEDGES THAT THE OTHER PARTY HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
13. GOVERNING LAW AND ARBITRATION
14.7 Bdellium reserves the right to notify and provide law enforcement authorities with possible evidence of any use of a Site or Content for illegal purposes.