1. Acceptance of Agreement.
By using this Website upon which this agreement is posted by us, or by using any DATAMiiNE service whether or not such service is associated directly with the Website, you agree to all of the applicable Terms expressed in this Agreement, including those which may be conspicuously posted on the Website from time to time pursuant to the terms below. "Terms" as used in the preceding sentence include but are not limited to pricing of our services, your obligation to pay for those services, and conditions under which those services are provided. We may amend the Terms at any time in our sole and absolute discretion. Activation of any DATAMiiNE service by Us for your use or benefit shall indicate DATAMiiNE's acceptance of You as a Customer under this Agreement is conditioned upon your possessing no less than 20,000 active eBay listings. Acceptance also does not obligate DATAMiiNE to continue to provide access to any services into the future, such continued access or subsequent termination of services to remain at all times a matter to be determined in the sole and exclusive discretion of DATAMiiNE. DATAMiiNE reserves the right to disapprove or decline Your offer to use in any way our Website or other services or content at any time and may withdraw such services from You without recourse other than as specifically set forth herein, for any reason or for no reason, and at any time, in its sole and exclusive discretion.
Throughout this Agreement, (i) the phrase "in our discretion" means in DATAMiiNE's sole and exclusive discretion and without necessarily considering input from any party to the Agreement or any 3rd party. (ii) "content" shall include all data, software, code and the like, appearing or used in any manner by DATAMiiNE with respect to its Website or relating to the services provided to the Customer through this Agreement. (iii) DATAMiiNE Services, LLC is referred to herein as "We," "Us" or "DATAMiiNE"); (iv) The User of services and party to this Agreement is indicated by the use of the terms "Customer," "User," "Yours" or "You". "Website," when used in a context pertaining to Website or its services, includes any particular website controlled by Website which is controlled by DATAMiiNE and provided for the Customer's use in connection with these services from time to time.
3. Amendment of Agreement.
We may amend this Agreement from time to time. Terms may be amended only by our giving advance written notice to Customers by direct email to an email address provided to Us by the Customer for purposes of notice (required), or by conspicuous posting of notice of amendment on the website, the choice of such method remaining in our sole and exclusive discretion. Amended Terms will automatically be effective as to all Customers continuing to use those services at and after 12:01 A.M., Eastern Standard Time, of the 8th calendar day after the giving of the notice as above, ("Notice Period"). The date of the posting is to be counted as the 1st day of the Notice Period and the beginning of the implementation of the amendment, unless a later effective date is specifically stated in the notice of amendment. Your continued use of our services after the expiration of a Notice Period will conclusively constitute Your acceptance of all Terms and Your agreement to be bound to those Terms so posted, whether or not You actually acknowledge receipt of such notice, which received shall be conclusively presumed upon posting. If You do decline to be bound by the proposed changes, You may discontinue Your registration by so informing Us in writing at DATAMiiNE@gmail.com. The only other manner in which Terms may be amended is by a writing signed by authorized representatives of both parties, under such conditions and assurances as may be reasonably requested in connection with such a mutual writing.
Use of our services is limited to parties that lawfully can enter into and form contracts both under applicable laws of the state of South Carolina, United States of America, and the local laws of the Customer's location or domicile. Our services are not available to parties whose use of our services has been prohibited by law, or which use has been suspended or terminated by Us for any reason, the latter including termination of use by Us to Your affiliated companies on prior occasions, the determination of the existence of any such affiliation being made by us, in our sole and absolute discretion.
5. Capacity to Accept.
By purporting to accepting this Agreement, You represent that: (a) You, in the case of natural persons, and, in the case of other persons represented by You, You represent that any authorized employee, agent, independent contractor or other person operating with You or for You purporting to accept, are aged eighteen (18) years or older or, if applicable, (b) You are authorized by the legal entity You purport to represent, to sign for and bind the corporation, partnership or other legal entity that will be using our services and upon whose behalf You initiate this relationship with us.
6. Accuracy of information.
Customer understands and agrees that DATAMiiNE does not warrant or guarantee the accuracy of the information or data provided to the Customer pursuant to this agreement, only that such information has been or will be gathered or obtained and delivered to Customer in good faith by us, to be used by the Customer for lawful purposes. It is the Customer's sole and exclusive obligation to fully investigate and assure itself not only that the information provided is generally consistent and accurate when compared to Customer’s own records, and Customer further agrees that Customer’s use of the information provided to it by Us is will remain in compliance with all applicable laws and regulations governing such use, and also be consistent with Customer’s own internal policies regarding privacy and use of its own sales data. Customer also recognizes that We are relying upon the information provided by Customer and by 3rd parties with respect to Customer, and that We have no duty or responsibility to investigate the accuracy of such information so received by Us for the use by Us or by the Customer for any purpose, including the purposes discussed in this Agreement
Customer hereby gives and grants to DATAMiiNE, during the pendency of this agreement, the unlimited license and permission to obtain, compile, organize, reproduce and provide to the Customer its own sales and marketing data available through the sales websites such as eBay, in which activities Customer may participate. DATAMiiNE agrees to take reasonable steps to avoid the unauthorized disclosure of such data to 3rd parties, and further covenants that it will gather such information for the sole and exclusive benefit of Customer; notwithstanding the above, Customer hereby waives its rights of privacy with respect to DATAMiiNE’s gathering and use of Customer’s sales data in such ways as are reasonably determined by DATAMiiNE, in its sole and exclusive discretion, to be for the Customer’s immediate or possible future benefit, and Customer agrees to forever hold harmless DATAMiiNE in the event of theft of Customer’s data from DATAMiiNE’s servers by hackers or other thieves or criminals. DATAMiiNE agrees to use reasonable safeguards to attempt to minimize the possibility of such theft. To the extent that private information contained within Customer’s transaction records is protectable by 3rd parties, it is and shall remain Customer’s sole and exclusive responsibility to obtain release of or permission to gather and use such information prior to making such information directly to DATAMiiNE or indirectly to DATAMiiNE, through such sources such as eBay. You hereby authorize DATAMiiNE to access third-party marketplaces, following their best practices of protecting data, such as eBay with which You have usage agreements, on Your behalf, to retrieve and post information and materials necessary to provide our services to You, and You hereby appoint DATAMiiNE as Your agent for this limited purpose. You acknowledge that our services may or may not provide all the information and functionality that You could obtain directly from the marketplaces. You hereby grant Us a non-exclusive right to compile and use the information which You provide us, to hold it, store it, manipulate it, and use it in research and development for any software or program We may make available to You, or which We may intend to develop for Your benefit and offered to You at a later date, all in our sole and absolute discretion, whether such exact uses are currently known or not currently known. By submitting User Content through the DATAMiiNE services, You hereby grant Us the license to use, edit, modify, truncate, aggregate, reproduce, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the DATAMiiNE services and our BUSINESSES, in order to reasonably develop products which may be in Your best interest or offered to You as DATAMiiNE services. We may use the Customer data under this license to help debugging, development and software enhancement. While We agree and covenant that We shall not disclose Your data to third parties under this license or otherwise, the license here granted includes keeping such data in our discretion and deleting or destroying it at our reasonable convenience at any time.
In connection with this license, You here represent and warrant that You have all rights to grant such licenses to Us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
8. Termination By Us, Right to Refuse Services.
DATAMiiNE reserves the right to discontinue, temporarily or permanently, any or all of our services to Customer at any time, with or without notice, and with or without cause, solely upon DATAMiiNE's unilateral determination that continuation of such relationship is not in our best interests, for any reason, financial or otherwise. In the event You have prepaid for services and Your DATAMiiNE services are terminated or discontinued by us, DATAMiiNE agrees to make prorated refund to You or to otherwise apply such prorated amounts to Your benefit on any other accounts You may have with us. Refunds for partial months will not be processed or paid in the event services are terminated by Us as a result of Your violation of any material term of this Agreement, and an explanation shall be provided of such determination of breach and forfeiture. DATAMiiNE shall not be liable to You or any third-party for any termination of Your access to the DATAMiiNE servers or hosting service except as expressly set forth and limited herein.
9. Termination by Customer.
Customer may terminate this agreement, upon written notice, after which, Customer will have use of the services and/or software as previously agreed throughout any period of use for which prepayment was made. Partial refunds for Customers who have paid in advance annually will be determined and posted on the website or decided on a case-by-case basis, and may be set in advance in writing between DATAMiiNE and Customer. In any event, however, no customer shall be entitled to a refund of any prepaid amount for any period of service under this Agreement with the time period prepaid extends less than one month beyond the date of termination.
10. Timeliness of User Content.
All Content added, created, uploaded, submitted, distributed, or posted by a Customer or on behalf of the Customer either to the DATAMiiNE Services, or to sources, such as eBay, from which data is compiled by DATAMiiNE, (collectively "User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. In addition, data will be synchronized by DATAMiiNE with outside sources approximately every 24 hours. Customer acknowledges the possibility of a data discrepancy between DATAMiiNE’s data displays and third party applications, such as eBay.
11. Warranty, Waiver of Liability, Hold Harmless and Assumption of Risk.
You represent and warrant that all User Content provided to Us directly or indirectly by You is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations, and suitable for our collection. You also acknowledge that all User Content accessed by You or otherwise obtained by You from Us or used by You pursuant to this agreement or otherwise from Us will be used by You at Your own risk and agree and covenant that You will remain solely responsible for any damage or loss suffered by You or by any other party or nonparty as a direct or indirect result of any deficiency, defect or inaccuracy in the data We have gathered about You and recycled to You, all of which You receive and use at Your own sole risk. In addition, We agree to use reasonable efforts to avoid providing to You any inaccurate data, and covenant to refrain from intentionally providing false data, but offer Customer no other warranty or guarantee of accuracy of our work product, especially as it is based upon reporting practices of other entities, such warranty, whether considered express or implied, being hereby specifically and expressly disclaimed and waived by Customer. You hereby covenant and agree to make such investigation of the data You receive from Us as You deem appropriate to Your purposes from time to time, to make Us aware of any apparent discrepancies between Your records and ours if any discrepancies are noted, and further covenant and agree to hold harmless and forever defend and indemnify DATAMiiNE, its officers, employees, owners and affiliates from and against all losses suffered by You or others receiving data from You or with whom You use or share such data provided by DATAMiiNE, including but not limited to such claims or losses described in the preceding sentence, and also including any claims, liabilities, losses, damages or injuries suffered or allegedly suffered by either You or by any 3rd party as a real result of the use or misuse (whether accidental or intentional), of the information You may receive from Us or created or derived in Your use of our software permitted under this Agreement.
12. Ownership and Intellectual Property.
Content made available to Customer by DATAMiiNE under this agreement, including software (collectively, "Content") is the copyrighted work and exclusive property of DATAMiiNE and/or its suppliers. Your use of the Content is governed by the terms of the end User license agreement, if any, which accompanies or is included with the Content. You may not install or use any Content that is accompanied by or includes a License Agreement unless You first agree to the License Agreement terms. Content cannot be assigned, traded, loaned or sold to any third party without the prior express written permission of DATAMiiNE. All Content, software, code and other electronic components of the Website is owned by DATAMiiNE and/or its suppliers and is protected by copyright laws and/or international treaty provisions. Any reproduction or redistribution of the DATAMiiNE Content is expressly prohibited, Customer agrees and covenants to refrain from such activity, and DATAMiiNE reserves the right to all legal remedies against Customer and Customer’s affiliated entities for violation of its intellectual property rights expressly or impliedly described in this Agreement or contained in its Website. Customer specifically covenants and agrees that reengineering, reverse engineering, misuse, theft, reproduction, deconstructive analysis, or any unauthorized use of any code, software, service or benefit provided to the Customer under this agreement, whether during the pendency of this agreement or thereafter, and even in the absence of any other agreement whatsoever with DATAMiiNE, will result in damages which are difficult or impossible to ascertain, and therefore agree and consent that any material violation of these intellectual property rights as described above by you, if found by a court of competent jurisdiction to have taken place and to have harmed Us, will result in an award of liquidated damages to DATAMiiNE in the amount of two hundred fifty thousand dollars ($250,000), such amount of damage to be presumed without specific proof of exact amount of damage, which amount is to be considered liquidated damages and not a penalty, and agree that the pursuit of such liquidated damages shall not preclude the simultaneous or subsequent pursuit of equitable remedies such as preliminary injunctions, temporary restraining orders or permanent injunctions against unauthorized use of such intellectual property, and the parties hereto expressly agree that any prevailing party in any legal or equitable litigation seeking any remedy for the theft or misuse of DATAMiiNE’s intellectual property shall be entitled to an award against the non-prevailing party of reasonable attorneys fees and expenses of litigation, including, but not limited to those incurred during investigation and trial preparation, as well as those expended at trial level and appellate level. Further, in the event that, pursuant to statutory or common law, DATAMiiNE may be required to post a bond in order to obtain temporary equitable relief, including a temporary restraining order, against the use by Customer of DATAMiiNE’s content or services, Customer waives the posting of such bond or security.
Specifically, in augmentation of and as an example of the prohibitions contained within the preceding paragraph, You hereby agree and covenant that You will not reverse engineer, reverse assemble, decompile, or otherwise attempt to (i) defeat, avoid, bypass, remove, deactivate, redesign, reengineer or in any way circumvent any of our software programs or of our protection mechanisms in Content, including without limitation any such mechanism used to restrict or control the functionality of Content, nor to (ii) derive or attempt to derive the source code or the underlying ideas, algorithms, structure or organization from any Content. You agree not to interfere or attempt to interfere with the proper working of any Content. You agree to access any Content only through the downloadable application or through DATAMiiNE's web interface.
13. License to DATAMiiNE content.
For any Content not accompanied by a specific license agreement, under this Agreement, and as long as it is pending and the Customer is in good standing, DATAMiiNE grants You, the User as Customer, a personal, non transferable license to use the DATAMiiNE Content for viewing and use of the DATAMiiNE website when used in accordance with these Agreement, and for no other purpose, provided that You display all copyright and other proprietary notices, and advise Us of any set of circumstances under which You discover or reasonably suspect violation of this license or of our property rights to this data.
14. Export Control Laws.
You acknowledge that the Content, and any accompanying documentation and/or technical information is subject to applicable export control laws and regulations of the United States. You agree not to export or re-export the Content, directly or indirectly, to any countries that are subject to U.S. export restrictions, without the prior express written permission obtained by Us after appropriate investigation and research.
DATAMiiNE does not assume or guarantee any right of reimbursement, indemnification or have any liability to You as Customer or to persons trading with You, relating to Your accounting, nor does it assume any duty to inspect or examine same, nor are Your accounting, financial record-keeping, inventory control or bookkeeping techniques impliedly approved by us, either alone, or as incorporated into Our content or services provided to You. The Customer acknowledges that it has the ability to create, amend and post financial transactions. DATAMiiNE is not a certified public accountant, and any accounting opinions or services that the Customer believes may be advisable, advantageous or necessary will be obtained and used only by the Customer, for the Customer’s own purposes, and DATAMiiNE has no responsibility whatsoever for the accuracy or appropriate application of Customer’s data by Customer including but not limited to raw data, categorized data, temporal data, groupings of transactions, aging reports, profit and loss statements or other financial and actuarial information from the Customer's data entered or obtained, whether by Customer or by DATAMiiNE, and DATAMiiNE in all cases represents to Customer the necessity of the retention of trained accounting specialists by Customer as may be in Customer’s best interest with respect to compliance with best marketing techniques and with any laws governing Customer’s activities, including, but not limited to state and federal taxation and corporate shareholder reporting; the use by Customer and determination of the significance of any data reports which may be compiled by use of DATAMiiNE shall be purely a function of Customer and subject to Customer's reasonable internal controls. Use of DATAMiiNE content or or software by Customer is solely the province of Customer, and DATAMiiNE shall have no responsibility for the Customer's use, applicability or significance assigned of any data or data summaries provided to Customer relating to this Agreement.
16. Accurate and Complete Financial Information.
Customer hereby agrees to provide to DATAMiiNE only true, accurate, current and complete account information, including, as applicable, Your credit card number and other financial information, and will update that information to keep it true, accurate, current and complete. DATAMiiNE, its agents, suppliers, and subcontractors have the right to recover from You any costs or losses incurred as a direct or indirect result of the inaccurate or incomplete billing/debiting/account information.
17. Privacy and storage offered by DATAMiiNE.
18. Privacy of Passwords and Security.
Customer agrees that it shall at all times maintain the confidentiality of Your usernames and passwords. If there is a breach of security through Your account password, You must immediately change Your password and notify Us at DATAMiiNE@gmail.com. You agree and covenant that DATAMiiNE is not liable in any way for any unauthorized use of our services as a result of Your own password or other internal -related security breach, until and unless You notify Us of the security breach in detail, and the breach continues in the nature of access into our system after We have had a reasonable opportunity to block access to Your account, yet have failed to do so. You acknowledge that changing Your password is within Your control, but not required by DATAMiiNE, even though that DATAMiiNE recommends periodic changes to passwords be undertaken by the Customer.
19. General Compliance with Laws.
You will comply with all applicable laws, statutes, ordinances and regulations in Your use of our services.
20. Representation of Ownership and Warranty.
You represent and warrant to DATAMiiNE that any content You submit is Yours and it does not violate the rights of any third parties including, without limitation, infringement or misappropriation of any applicable copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, invasion of rights of privacy, publicity or personality.
21. Indemnity and Disclaimer.
You hereby covenant and agree for Yourself, and for Your representatives, assigns and privileged affiliates that You will, at Your own expense, hold harmless, indemnify, defend DATAMiiNE and our subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to (a) a third-party claim, action or allegation of infringement, misuse or misappropriation based on information, data, files or other content submitted by You to Us directly or through a 3rd party such as eBay; (b) any fraud, manipulation, or other breach of this Agreement by You; (c) any third-party claim, action or allegation brought against DATAMiiNE arising out of or relating to a dispute with You over the terms and conditions of an agreement or related to the purchase or sale of any goods or services; (d) Your violation of any law or the rights of a third party; or (e) Your use, or DATAMiiNE's provision, of our services or use of Your account by any third party. DATAMiiNE will have the right to participate in its own defense and hire counsel of its choice, at Your expense, in the event it is sued as a result of Your activities or alleged activities or relating to Your actionable omissions, as contemplated under this paragraph 21. You hereby agree that You will not settle any action or claims on DATAMiiNE's behalf without the prior written consent of DATAMiiNE.
22. Further Disclaimer and Limitation of Liability.
DATAMiiNE shall not be responsible for direct or consequential damages based upon any loss of business, profits or goodwill, loss of use or data, interruption of business or for any indirect, special, incidental or consequential damages of any character, however arising, including those caused by simple negligence, arising out of or in connection with services provided under this agreement, nor shall it be responsible for any damages that result in any way from Your use or inability to use DATAMiiNE services, as a result of errors, defects, omissions, delays in operation or transmission, or any other failure of performance attributable to DATAMiiNE or its services. In any event, our liability, and the liability of our suppliers, to You or any third parties in any circumstance is limited to the greater of (a) the amount of fees You pay to Us in the 3 months prior to the action giving rise to liability, or (b) $100. This limitation applies notwithstanding any failure of essential purpose remedy and to the fullest extent permitted by law.
23. Warning to Customer.
As an alternative to Termination, in our sole and absolute discretion, We may issue Customer a warning, or may temporarily suspend, Your registration and Your services, and delete information You have provided Us if You breach any provision of this Agreement. This Section does not limit any other remedies that may be available to DATAMiiNE, and reinstatement may be conditioned upon Customer performance or remedy associated with any warning given, if any.
DATAMiiNE is not responsible or liable for any services, including shipping or tracking, offered by any partner or affiliate company.
Customers should be aware that whenever You or Your authorized Users "click" on links to various services or merchants on this site, including any related or generated from any DATAMiiNE services, pursuant to the terms therein stated, this can result in this site earning a commission payable by the Customer. Be sure You understand before following links to other services. Affiliate programs and affiliations include, but are not limited to, the eBay Partner Network.
26. Third Party Agreements.
You hereby agree that You will comply with the terms and conditions of all agreements You may have or which you may subsequently enter with third parties touching upon any of the matters contemplated in this Agreement, such 3rd parties including but not limited to providers of marketplaces, and to comply with such terms and conditions as may relate in any way to your accounts with those providers; examples of such terms and conditions include limitations as to the types of products that may be sold, restrictions on concurrent sales which may be made on marketplaces, and your payment of all fees or costs which you may be obligated to pay pursuant to your relationships or agreements with such marketplaces, including but not limited to payment of any fees charged to you by these 3rd parties relating to the 3rd party’s authorized sharing, processing or storing your data. DATAMiiNE is under absolutely no responsibility to pay or to investigate on your behalf any charges, costs or fees to any 3rd parties (such as, eBay), which may be charged directly to you against your accounts by any 3rd party for any purpose or reason. This agreement does not authorize DATAMiiNE to incur fees with 3rd parties chargeable to You, unless You have authorized such charges to be made.
27. No Agency.
Except as may be set forth expressly herein in a limited manner, You and DATAMiiNE are independent contractors with respect to each other, are not principal and agent, partners, joint venturers nor do You and We occupy together any other business relationship, nor is any impliedly intended or created by this Agreement.
Except as expressly provided otherwise, any notices will be given email to the email address You provide to DATAMiiNE and DATAMiiNE provides to you during the registration process, or such other address as may be provided in writing during the pendency of the Agreement. Unless otherwise provided, email notice will be deemed given 24 hours after email is sent to the other party, unless the sending party is notified that the email address is invalid. Alternatively, We may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided to DATAMiiNE during the registration process or thereafter, and in some cases, by posting notice of amendment of terms of this agreement as provided hereinabove. In case of particular notices mailed to the Customer, notice will be deemed given five (5) days after the date of mailing.
Any controversy or claim in any way arising out of or relating to this Agreement which may result in a judgment for damages or other monetary judgment will be determined by binding arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association, or other framework only if unanimously agreed by all parties involved. The arbitration will be conducted in Columbia, South Carolina and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The seeking of equitable relief, such as an injunction or restraining order, is not covered by this paragraph.
30. Governing Law.
South Carolina law will govern this Agreement, including determinations made pursuant to traditional notions of conflicts of law. Subject to the Arbitration Section, venue for any legal action will be the state courts of Richland County, South Carolina, or, as an alternative and at the sole and exclusive discretion of DATAMiiNE, equitable action may be brought in any jurisdiction or venue in which Customer locates or conducts substantial business activities.
31. No waiver.
A party's failure to enforce any provision of this Agreement shall not be a waiver of the provision or the right to enforce it at a later time.
32. Entire Agreement.
This Agreement sets forth the entire understanding and agreement between Us with respect to the subject matter hereof, except as may be amended as expressly provided herein above. You agree that You are not entering into this Agreement in reliance on any statements or representations other than those set forth herein. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced.
This Agreement and Your Usernames and passwords used or provided with respect to DATAMiiNE website, services, software or content are not assignable, transferable or sublicensable by You without DATAMiiNE's prior written consent, and any such purported unauthorized transfer or assignment will be totally null and void, ab initio.
Should any term or condition be in conflict between this Agreement and any document incorporated by reference into this Agreement, the terms of this Agreement will control. The use of headings is for convenience and will not affect the interpretation of this Agreement.