PLEASE READ THIS SUBSCRIPTION AGREEMENT IN ITS ENTIRETY BEFORE BECOMING A MEMBER OR USING ANY INFORMATION PROVIDED ON “ZMAN’S ENERGY BRAIN” WEBSITE. BY BECOMING A MEMBER OF “ZMAN’S ENERGY BRAIN” WEBSITE, YOU CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT.
This Service Agreement (“Agreement”) is entered into between you (“Member”) and Zman’s Energy Brain, LLC (“Zman”) effective as of the date Member subscribes to the Zman’s Energy Brain website, zmansenergybrain.com (the “Site”).
For and in consideration of the mutual covenants in this Agreement, other consideration stated herein, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows:
1. Service Agreement. In consideration of Zman providing Member with non-exclusive access to the Site, Member agrees to comply with the terms and conditions of this Service Agreement. MEMBER ACKNOWLEDGES THAT BY BECOMING A MEMBER OF THE SITE, MEMBER AGREES TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, INCLUDING BUT NOT LIMITED TO THE CHOICE OF JURISDICTION AND VENUE PROVISIONS, AS THE SAME MAY BE AMENDED FROM TIME TO TIME AS SET FORTH BELOW. IF MEMBER DOES NOT AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THE SERVICE AGREEMENT, MEMBER SHOULD NOT REGISTER WITH THE SITE. Member agrees that by subscribing to the Site, the records kept by Zman reflecting Member’s subscription to the Site shall constitute the written signature of Member to this Agreement and shall be admissible in any proceeding, including but not limited to courts of competent jurisdiction, arbitrations, or mediation, as conclusive evidence of a binding written contract between the parties. Without limiting the effectiveness of the forgoing, Zman can require, from time to time, Member to furnish to Zman at Member’s expense an original signature on a written Subscription Agreement in substantially the same form as the a current Agreement posted on the Site which Member agrees shall be enforceable effective as of the date of Member’s subscription to the Site.
2. Changes to Service Agreement. At any time and for any reason, Zman may change the terms of this Agreement, including but not limited to changing services provided by Zman or charging additional fees. Zman may change the subscription rates, even during periods in which Member has made prepayments, upon seven (7) days notice. Zman will post notice of any changes to the Subscription Agreement on the Site. Member agrees that such posting is reasonable notice of any changes. Those changes will become effective seven (7) days after such notice is posted.
3. Disclaimer Regarding Services. Zman is a publisher that provides financial information and entertainment on the Site. Zman is not registered with the U.S. Securities and Exchange Commission or any State in any capacity, including as a broker-dealer, investment company, or investment adviser. All information, materials, discussions, and other Site content are for informational and educational purposes only and does not constitute investment advice. Member agrees that none of the information on the Site constitutes advice suitable for the investment needs of Member or any other person. Information provided by Zman is not a recommendation to buy, sell or hold any particular security or investment. MEMBER AGREES TO CONSULT WITH A QUALIFIED BROKER OR OTHER FINANCIAL PROFESSIONAL BEFORE MAKING ANY INVESTMENT DECISIONS BASED ON INFORMATION RECEIVED THROUGH THE SITE.
4. Rules of Conduct. Member agrees to comply with all Rules of Conduct established, from time to time, by Zman for use of the Site. Zman will establish at its sole discretion such Rules of Conduct as it sees fit for use of the Site and may change the same from time to time as it sees fit by posting the Rules of Conduct on the website. Member agrees that he or she has the responsibility for reviewing and complying with any Rules of Conduct posted on the Site (or the most recently posted version if for some reason the Rules of Conduct are not posted on the Site) and that posting of changes on the Site by Zman is reasonable notice to Member of any changes to the Rules of Conduct. Member agrees that violation of the Rules of Conduct via Member’s account is grounds for Zman to immediately terminate Member’s subscription without refund.
5. Access. Member agrees that Zman is not obligated to provide continuous access to the Site or continuous services on the Site for any reason, including but not limited to failure or malfunction of software or hardware or inability of Member to connect to the Site. Failure by Zman to provide services to Member from time to time for any reason shall not entitle Member to any full or partial refund, damages, or injunctive relief. Member agrees to pay for all costs of accessing the Site, including but not limited to line charges, hardware or software costs, fees of internet service providers, or other connection charges.
6. Member Contact Information. Member agrees to provide all information requested by Zman to subscribe to the Site, including his or her legal name, address, e-mail, user name, password, and type of membership (individual or corporate). All information must be accurate and Member agrees to update any Member information that changes after subscribing.
7. Subscriptions and Accounts. As a Member, you cannot transfer, assign, or sell your subscription to any third-party. Member agrees not to allow third parties to use Member’s account. Member is responsible for all activities that occur on his or her account, regardless of whether or not Member is the person using Member’s account. Member agrees to notify Zman immediately of any unauthorized use of Member’s account. Zman has the right, but not the obligation, to review any material transmitted or posted by Member on the Site for compliance with the terms of this Agreement. Nothing in this Agreement shall constitute an obligation or policy of Zman to review any postings by Member or any other party to insure that the content complies with the requirements of any applicable laws.
8. Termination. Zman may suspend or terminate any subscription without prior notice and without any refund or liability to Member for (1) breach or violation of the Subscription Agreement, (2) violation of any Rules of Conduct, (3) violation of any laws, (4) providing false or incorrect Member information, (5) request by law enforcement officials or any other government or regulatory authority, and (6) inability of Zman to provide service for any amount of time.
9. Renewal and Cancellation. Subscriptions to the Site will renew automatically at the end of the term of the current subscription, unless previously terminated. A Member may cancel his or her subscription at any time and such cancellation will become effective upon the next billing date. Subscriptions will renew at the current rate and for the same term as the previous subscription. Payments by Member will not be refunded or prorated upon any termination by Member.
10. Term. The term of Member’s subscription will be for thirty days, ninety days, or three hundred sixty five days as chosen by Member upon subscription to the Site. The length of subscription terms are approximate and may vary by a few days. Subscription terms shall begin on the date Member subscribes to the Site.
11. Price. The price for the service shall be the current rates in effect at the date Member subscribes to the Site. The price for the service shall be set by Zman at its sole discretion and may be changed from time to time as provided in this Agreement. Member is obligated to pay the price for the Service to Zman without offset or deduction of any kind.
12. Copyright. All information posted by Zman on the Site is property of Zman and is protected to the full extent of U.S. and international copyright laws. As a Member, you have a non-exclusive license to access and use the content of the Site and you have a license to print or download one (1) copy of any content for your personal use. This Agreement does not give Member any other rights to the content provided on the Site, including but not limited to reproduction, modification, distribution, transmission, republication, display or performance. Any information posted on the Site by you will become property of Zman as a “work for hire”. To the extent that any court of competent jurisdiction ever determines that the information posted by you on the Site is not a “work for hire”, Member hereby grants Zman a permanent, irrevocable, nonexclusive, royalty-free, worldwide permission, right and license to use, reproduce, modify, copy and distribute any works, materials or information posted by Member on the Site, including the right to incorporate such works, materials, or information into other works. Zman reserves the right to reproduce or sublicense any such works, materials, or information to other third parties without compensation or royalties to Member. Zman is not responsible for content placed online by Members. Member agrees not to post any material on the Site which violates or infringes on the rights of others, including but not limited to posting copyrighted material on the Site without the permission of the owner(s) of the material. Without limitation of any of Zman’s remedies under this Agreement, Member who make repeat violations of the Copyright terms of this Agreement will subject to termination of their account without refund. The name Zman’s Energy Brain is a trademark of Zman’s Energy Brain, LLC. If you wish to reproduce any content on the website, zmansenergybrain.com, you must first obtain permission from Zman, which can be withheld at the discretion of Zman.
13. Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the company’s agent (listed below) the following information, in writing:
· An electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive right which is allegedly being infringed upon;
· Identification of the copywritten work that is alleged to have been infringed upon or, if more than one, a representative list;
· Identification of the material which needs to be removed or altered and a sufficiently detailed description of the location of the protected material on the site;
· A sufficient means for the company to contact you, such as your address, telephone number, and e-mail address (if available);
· A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law and that you have authority to make such a statement;
· A statement by you, made under penalty of perjury that, the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright’s owner’s behalf.
The company’s copyright agent for notice of claims of copyright infringement is:
Name: Steven K. Zachritz
Company Name: ZMAN’s ENERGY BRAIN, LLC
Address: PO Box 251731, Little Rock, AR 72225-1731
14. Links. Any links to other information from links on our websites may be subject to different rules and regulations. Zman does not control or approve of content of any other websites. Zman is not liable for any information provided on other websites.
15. Disclaimers. The services provided by Zman, including but not limited to any content of the Site are provided “AS-IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITIED TO THE WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Zman is not under any obligation to review any information posted on the Site for accuracy or to correct any inaccuracy of such information, regardless of whether or not Zman knows, or should know, of such inaccuracy. Links on the Site are not referrals or endorsement by Zman of the linked entities, products, or services. Zman does not warrant that the service will be uninterrupted. Although Zman intends to take reasonable measures to prevent the introduction of viruses, worms, “Trojan horses” or other destructive materials, Zman does not guarantee or warrant that this service or materials that may be downloaded from this service do not contain such destructive features. Zman is not liable for any damages or harm attributable to such features. If a Member relies on this service or any materials available through this service, the Member does so at you’re his own risk.
16. Limitation of Liability IN NO EVENT SHALL ZMAN BE LIABLE TO MEMBER FOR ANY LOSS OF PROFITS, BUSINESS, USE, OR DATA OR FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR PUNATIVE DAMAGES OF ANY KIND WHETHER BASED IN CONTRACT, NEGLIGENCE, OR TORT. Member’s sole remedy for discontent with membership is to terminate subscription without refund. The maximum liability for damages against Zman for any claim, including but not limited to breach of this Agreement or failure to provide services to Member, shall be the lesser of the sum paid by Member to Zman or Five Hundred Dollars.
17. Indemnification. Member agrees to indemnify and hold harmless Zman from any claims and expenses, including but not limited to reasonable attorney’s fees, related to the Member’s violation of this Agreement, Member’s use of the Site, or Member’s violation of any third party’s rights.
18. Construction. The parties agree that this Agreement was jointly drafted by all of the parties and shall not be strictly construed against either of them.
19. Severability Clause. In the event that any provision or any part of any provision of this Agreement shall be adjudged illegal, invalid, ineffective, or unenforceable under present or future laws (“Severed Provision”), such Severed Provision shall be fully severable and this Agreement shall be construed and enforced as if such Severed Provision had never comprised a part thereof.
20. Notices. In addition to the methods of Notice set forth in this Agreement, Zman may give notice to Member by e-mail, regular mail, certified mail, or express delivery service at Member’s most recent e-mail address or physical address provided to Zman in Member’s account, with notice effective two (2) business days after transmission. Member may give notice to Zman at the address set forth in Paragraph 13, with notice effective upon actual receipt of the notice by Zman.
21. Election of Remedies; Waiver. Member shall have all of the rights and remedies granted by this Agreement. Zman shall have all of the rights and remedies granted by this Agreement as well as any other right or remedy available at law or in equity, and these same rights and remedies shall be cumulative and may be pursued separately, successively or concurrently. The exercise or failure to exercise any of the same shall not constitute a waiver, release, or exclusive election thereof or of any other right or remedy.
22. Complete Agreement; No Oral Modification. This Agreement is a full and complete integration, constitutes the entire understanding and agreement between the parties with respect to the transactions arising in connection with this Agreement, and supersedes all prior or contemporaneous written or verbal understandings and agreements between the parties in connection therewith. No provisions of this Agreement may be modified, waived, terminated, or changed except as provided for in this Agreement or otherwise by written agreement signed by the party to be charged with the modification, waiver, termination, or change.
23. Jurisdiction/Governing Law. This Agreement shall be construed and performed in accordance with the laws of the State of Arkansas, excluding the provisions on conflicts of laws. The parties agree to submit all claims arising under or related to this Agreement or its breach or any claim by one party against the other to the jurisdiction of the federal or state courts in the State of Arkansas, County of Pulaski. As a member, you agree to waive any and all forum objections. Member agrees that for all purposes Member has entered into this Agreement in the State of Arkansas, County of Pulaski.
24. Headings. The headings and titles of this Agreement are for the sake of convenience only and are not to be used when construing this Agreement.
The Member, intending to be legally bound, has executed this Agreement by subscribing to the Zman’s Energy Brain Website.
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