E Fundamentals Inc Terms of Service
Last Updated: February 1st, 2021
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. You understand and agree that disputes arising under these Terms will be resolved by confidential binding, individual arbitration. (See Section 17.)
1. Overview. The Site provides information and resources about e.fundamentals and our B2B analytical SaaS platform that assists consumer packaged goods to optimize their digital shelf.
2. Eligibility. You must be at least 18 years old to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Site or any other service provided by e.fundamentals; and (c) your use of the Site is in compliance with any and all applicable laws and regulations.
3. Resources. Downloads, podcasts, webinars, blogs, case studies and other resources made available on the Site are for informational purposes only. Should you wish to purchase and use e.fundamentals analytical platform, you will need to enter into a Master Software and Services Agreement that governs your commercial use of the e.fundamentals analytical platform. For more information about the e.fundamentals analytical platform, please contact our sales team at: .
5. Term. These Terms are effective beginning when you accept the Terms or first access, or use the Site, and ending when terminated as described in this Section 5. If you violate any provision of these Terms, your authorization to access the Site and these Terms automatically terminate. In addition, e.fundamentals may, at its sole discretion, terminate these Terms, or suspend or terminate your access to the Site, at any time for any reason or no reason, with or without notice. Upon termination of these Terms: (a) your license rights will terminate, and you must immediately cease all use of the Site; and (b) you will no longer be authorized to access the Site. All definitions and Sections 5, 6.3, 7, and 12 through 18 will survive termination of these Terms.
6.1 Limited License. Subject to your complete and ongoing compliance with these Terms, e.fundamentals grants you, solely for your personal, use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Site.
6.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Site; (b) make modifications to the Site; or (c) interfere with or circumvent any feature of the Site, including any security or access control mechanism. If you are prohibited under applicable law from using the Site, you may not use it.
6.3 Information You Submit. Do not submit any information or other materials that you consider confidential or proprietary through the Site. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site (“Feedback”), then you do so on a non-confidential basis (regardless of any designation or indication to the contrary in the submitted information or any accompanying correspondence) and you hereby grant e.fundamentals an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free transferable, sublicensable right to exploit the Feedback in any manner and for any purpose, including to improve the Site and create other products and services.
7. Ownership; Proprietary Rights. The Site is owned and operated by e.fundamentals. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Site (“Materials”) provided by e.fundamentals are protected by intellectual property and other laws. All Materials included in the Site are the property of e.fundamentals or its third-party licensors. Except as expressly authorized by e.fundamentals, you may not make use of the Materials. e.fundamentals reserves all rights to the Materials not granted expressly in these Terms.
8. Third Party Content. The Site may contain links to third party websites. Linked websites are not under e.fundamentals’ control, and e.fundamentals is not responsible for their content. e.fundamentals and the e.fundamentals logo are among the trademarks of e.Fundamentals. All other trademarks are the property of their respective owners. e.Fundamentals is in no way affiliated with, endorsed by, or otherwise connected to third parties referenced on its Site.
9. Prohibited Conduct. BY USING THE SITE, YOU AGREE NOT TO:
a. use the Site for any illegal purpose or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
c. interfere with security-related features of the Site, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Site except to the extent that the activity is expressly permitted by applicable law;
d. interfere with the operation of the Site or any user’s enjoyment of the Site, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code or interfering with or disrupting any network, equipment, or server connected to or used to provide the Site;
e. perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation;
f. sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
g. attempt to do any of the acts described in this Section 8 or assist or permit any person in engaging in any of the acts described in this Section 8.
10. User Content
10.1 User Content Generally. Certain features of the Site may permit users to upload and post content to the Site. “User Content” means any content that you upload, post or transmit to or through the Site including, without limitation, any text, photographs, audio files, graphics, videos and any other works subject to protection under the laws of the United States or any other jurisdiction, including, copyright, trademark, trade secret and patent laws, and excludes any and all Materials. We do not guarantee the accuracy, integrity, appropriateness, availability or quality of any User Content, and under no circumstances will we be liable in any way for any User Content. User Content is not advice created or provided by us and does not constitute a recommendation or endorsement of any kind. e.fundamentals does not monitor, supervise or endorse any User Content, and users are not supervised persons of e.fundamentals or any affiliate, including without limitation E.fundamentals, Inc. No affiliate of e.fundamentals is responsible or will be liable for any User Content.
10.2 Screening User Content. e.fundamentals offers you and other users the ability to submit User Content to or transmit through the Site. We do not pre-screen any User Content, but reserves the right to remove, disallow, block or delete any User Content in our sole discretion. We reserve the right to disable the ability to upload and post User Content for specific users at our sole discretion. In addition, we have the right—but not the obligation—in our sole discretion to remove, disallow, block or delete any User Content: (i) we consider to violate these Terms or applicable law or to otherwise constitute Objectionable Content; or (ii) in response to complaints from third parties, with or without notice and without any liability to you. Without limiting the preceding sentences of this Section, e.fundamentals also has the right—but not the obligation—to take remedial action in connection with any Objectionable Content posted on the Site as described more fully in Section 9.5 below. We recommend that you save copies of any User Content that you post to the Site on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content.
10.3 Intellectual Property Rights and License. You retain ownership of any rights you may have in your User Content and submitting your User Content to the Site does not transfer ownership of your rights. You hereby grant e.fundamentals an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit, and otherwise exploit and use all or any part of all User Content you post to or through the Site by any means and through any media and formats now known or hereafter developed, for any purposes including: (i) advertising, marketing and promoting e.fundamentals and the Site; (ii) displaying and sharing your User Content to other users of the Site; and (iii) providing the Site as authorized by these Terms. By posting User Content to or through the Site, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User Content, or any portion thereof. You further grant e.fundamentals a royalty-free license to use your user name, image and likeness to identify you as the source of any of your User Content. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you post to or through the Site.
10.4 You Must Have Rights to the Content You Post. You must not post any User Content on or through the Site or transmit to e.fundamentals any User Content that you consider to be illegal, confidential or proprietary. Any User Content posted by you to or through the Site or transmitted to us will be considered non-confidential and non-proprietary, and treated as such by us, and may be used by us in accordance with these Terms without notice to you and without any liability to e.fundamentals. You must not post any User Content to the Site if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to post to the Site. You represent and warrant that: (i) you own the User Content posted by you on or through the Site or otherwise have the right to grant the licenses set forth in these Terms; (ii) the posting and use of your User Content on or through the Site does not infringe any privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, or third party including, the rights of any person visible in any of your User Content; (iii) the posting of your User Content on the Site will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the posting of your User Content on the Site does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person or company as a result of posting your User Content on the Site.
10.5 Objectionable Content. You are not permitted to and agree not to post any User Content to the Site that is or could be interpreted by a reasonable person to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar or in violation of any applicable laws (including laws related to speech); (ii) bigotry, discrimination, hatred, intolerance, racism or inciting violence (including suicide), (iii) in violation of federal or state securities laws (including without limitation based on activities distributing insider information or providing content that could be considered attempts to manipulate the market), in each of clauses (i), (ii) and (iii) of this Section, as e.fundamentals may determine in its sole and absolute discretion (collectively, “Objectionable Content”). The posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in these Terms may be raised as a defense against any third party claims arising from your posting of Objectionable Content. You also agree not to use the Site for illegal or unlawful purposes, including, without limitation, to stalk any other users or to encourage any user to harm themselves or any other person. If you encounter any Objectionable Content on the Site, then please immediately email e.fundamentals at [email protected] or inform us through the functionality offered on the Site. You acknowledge and agree that e.fundamentals provides you with the ability to report Objectionable Content as a courtesy, and we have no obligation to remove or take any other action with respect to any Objectionable Content on the Site that you report to us. However, in our sole discretion we may take any actions we deem necessary and/or appropriate against any user who posts Objectionable Content on the Site, including, warning the user, suspending or terminating the user’s account, removing all of the user’s User Content posted on the Site and/or reporting the user to law enforcement authorities, either directly or indirectly.
10.6 User Content Representations and Warranties. e.fundamentals disclaims any and all liability in connection with User Content. For the avoidance of doubt, e.fundamentals will not be liable for any unauthorized use of User Content by any user. You are solely responsible for your User Content and the consequences of providing User Content via the Site. By posting User Content via the Site, you affirm, represent, and warrant that you will fully comply with Sections 8 and 9, and these Terms.
11. Digital Millennium Copyright Act
11.1 Respect of Third Party Rights. e.fundamentals respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask you to do the same. Infringing activity will not be tolerated on or through the Site.
11.2 Repeat Infringer Policy
11.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by e.fundamentals with the user alleged to have infringed a right you own or control, and you hereby consent to e.fundamentals making such disclosure. Your communication must include substantially the following:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
b. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
c. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit e.fundamentals to locate the material;
d. Information reasonably sufficient to permit e.fundamentals to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
e. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.4 Designated Agent Contact Information. e.fundamentals’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
ATTN: Chief Financial Officer
444 West Lake Street, Suite 1700, Chicago, IL, 60606
Email: [email protected]
11.5 Counter-Notification. If you receive a notification from e.fundamentals that User Content or any material made available by you on or through the Site has been the subject of a Notification of Claimed Infringement, then you will have the right to provide e.fundamentals with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to e.fundamentals’s Designated Agent through one of the methods identified in Section 10.3d and include substantially the following information:
a. A physical or electronic signature of the subscriber;
b. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
c. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
d. The subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which e.fundamentals may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.3d above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to e.fundamentals in response to a Notification of Claimed Infringement, then e.fundamentals will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that e.fundamentals will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and e.fundamentals will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless e.fundamentals’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on e.fundamentals’s Site, system or network.
11.7 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [e.fundamentals] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
e.fundamentals reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Modification of the Site. e.fundamentals reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. e.fundamentals will have no liability for any change to the Site or any suspension or termination of your access to or use of the Site.
14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Site, and you will defend and indemnify e.fundamentals and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “e.fundamentals Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties
15.1 The Site and all Materials and content available through the Site and provided “AS IS” and on an “AS AVAILABLE” basis. e.fundamentals disclaims all warranties of any kind, whether express or implied, relating to the Site and all Materials and content available through the Site, including: (a) any implied warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment, or non-infringement; and (b) any warranty arising out of course of dealing, usage, or trade. e.fundamentals does not warrant that the Site or any portion of the Site, or any Materials or content offered through the Site, will be uninterrupted, secure, or free of errors, viruses, or other harmful components, and e.fundamentals does not warrant that any of those issues will be corrected.
15.2 No advice or information, whether oral or written, obtained by you from the Site or e.fundamentals Entities or the Site that is not expressly states in these Terms. We are not responsible for any damage that may result from the Site or your use of the Site. You understand and agree that you use any portion of the Site at your own discretion and risk, and that we are not responsible for any damage to your property (including your computer system or mobile device used in connection with the Site) or any loss of data.
16. Limitation of Liability
16.1 To the fullest extent permitted by law, in no event will the e.fundamentals Entities be liable to you for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, or any other intangible loss) arising out of or relating to your access to or use of, or your inability to access or use, the Site or any Materials or content on the Site, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, and whether or not any e.fundamentals entity has been informed of the possibility of damage.
16.2 To the fullest extent permitted by law, the aggregate liability e.fundamentals entities to you for all claims arising out of or relating to the use of or any inability to use any portion of the Site or otherwise under these Terms, whether in contract, tort, or otherwise, is limited to $100.
16.3 Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risk between the parties under these Terms. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms. The limitation in this Section 16 will apply even if any limited remedy fails of its essential purpose.
16.4 The limitations, exclusions and disclaimers in these Terms apply to the fullest extent permitted by law. e.fundamentals does not disclaim any warranty or other right that e.fundamentals is prohibited from disclaiming under applicable law.
17. Dispute Resolution and Arbitration. In the event of any controversy or claim arising out of or relating to these Terms, or any breach thereof, such controversy or claim shall be determined and settled by confidential arbitration, conducted in English, held in the United Kingdom, , administered by the London Court of International Arbitration (“LCIA”) before a sole arbitrator in accordance with the then-current LCIAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
18.2 Governing Law. These Terms are governed by English law without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. You and e.fundamentals submit to the personal and exclusive jurisdiction of the English courts for resolution of any lawsuit or court proceeding permitted under these Terms.
18.3 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site or that you agree to in connection with certain technology or services made available to you by or on behalf of e.fundamentals (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.4 Consent to Electronic Communications . By using the Site, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.5 Contact Information. The Site is offered by e.fundamentals. You may contact us by sending correspondence to our registered office addresses or by emailing us at [email protected].
18.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.
18.7 No Support. We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.