Last Updated: July 7, 2020
OpenFin End User Terms of Service
Welcome to OpenFin! These End User Terms of Service (“Terms”) govern your use of the OpenFin, Inc. (“OpenFin”) website, OpenFin-developed applications (“OpenFin Suite”), OpenFin push notifications and alerts (“OpenFin Notifications”), and OpenFin authentication service (“OpenFin ID”) (collectively, the “Services”).
IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND THE SERVICES PROVIDED BY OPENFIN ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 11, “MANDATORY ARBITRATION AND CLASS ACTION WAIVER,” BELOW.
We may, from time to time, modify these Terms. Please check this page periodically for updates. We may, from time to time, send e-mails to users with major updates or new features. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. The updated Terms will take effect upon their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in Section 11 below. Your continued use of the Services after any such update constitutes your acceptance of such changes.
Beta Release. The Services are currently in beta and not available to the public (“Beta”). The right to use a Beta account is personal and non-transferable to any other person or entity under any circumstances. You understand and agree that: (i) the Beta and associated materials may include known or unknown bugs; (ii) OpenFin has no obligation to make any content available to you with or without charge for any period of time, including after the Beta ends; and (iii) the provisions in these Terms and any applicable additional terms apply to your use of the Beta. Your use of the Beta and associated materials is at your own risk.
Confidentiality. You understand that the Service are in Beta and you will not disclose images of or content from the Services or any comments regarding the same to any third party without the prior written approval of OpenFin. For clarity, you may share feedback with OpenFin or an application owner, but you will otherwise maintain the confidentiality of the Services with at least the same degree of care that you use to protect your own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances.
End Users. These Terms apply to users of the Services. Such users include 1) users not associated with an OpenFin Enterprise Customer account (“Free Users”) and 2) end users of OpenFin Enterprise Customer accounts (“Enterprise Users”). These Terms do not apply to corporate entities that have entered into separate agreements (each a “Customer Agreement”) with OpenFin. To the extent that the application of these Terms to Enterprise Users conflicts with terms that special provisions of a Customer Agreement, the Customer Agreement shall govern.
Non-Applicability to Third-Party Services. These Terms govern only the Services operated by OpenFin listed above. We do not operate the third-party applications or services accessible through OpenFin or that utilize OpenFin OS, and such third-party services are subject to those entities’ own terms and policies. See Section 8 for further information.
License and Usage
Registration.You may access and browse the OpenFin website without creating an account. However, to use OpenFin Suite or any third-party applications that authenticate via OpenFin ID, you must register for OpenFin ID by creating a username, password, and profile. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your OpenFin ID.
Eligibility. Only employees of a financial institution, financial advisor, broker, or dealer, or partner or a service provider to those entities, or other entities that provide finance-related products and services (collectively, “Eligible Companies”) may register for an OpenFin ID. OpenFin determines in its sole discretion what entities qualify as Eligible Companies, and may offer or deny eligibility to a company for any reason. Employees of Eligible Companies must use the email address assigned to them by their employer to register for OpenFin ID. Users who no longer work for the Eligible Company with whom they signed up are no longer eligible to use OpenFin unless they start work for another Eligible Company, in which case they must create a new account.
Acceptable Use. By using the Services, you agree not to engage in any activity that, in our sole discretion:
- Is illegal, or violates any federal, state, or local law or regulation;
- Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
- Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, pornographic, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
- Interferes with any other party’s use and enjoyment of the Services;
- Attempts to impersonate another person or entity;
- Transmits or attempts to transmit any communications to OpenFin outside of communications channels designated by OpenFin;
- Falsely states, misrepresents, or conceals your affiliation with another person or entity;
- Accesses or uses the account of another user without permission;
- Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
- Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Services, or the servers or networks connected to the Services;
- “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else, including by probing, scanning or testing the vulnerability of the Services or any third-party services accessible through the Services;
- Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
- Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Services, except as expressly permitted in these Terms or as required by law;
- Removes, circumvents, disables, damages, or otherwise interferes with security-related features, or features that enforce limitations on use of the Services;
- Uses automated or manual means to violate the restrictions of the Services, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
- Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers, or otherwise commercializes any materials or content on the Services, except as specifically authorized by a particular service;
- Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms; or
- Attempts to do any of the foregoing.
Unauthorized Account Use. You agree that OpenFin may monitor and log your use of the Services, including frequency, duration, login from IP Address, and information about your devices and operating system to detect abuses of its Services, and to detect and prevent fraud and unauthorized access.
Notification Obligations. You are responsible for notifying us at email@example.com if you become aware of any unauthorized use of or access to your OpenFin ID. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. OpenFin will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your OpenFin ID, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by OpenFin or a third party due to someone else using your account.
Ownership and Intellectual Property
Ownership of the Services. Subject to the limited rights expressly granted hereunder, OpenFin reserves all rights, title and interest in and to the Services including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
Feedback. You may, at your option, provide OpenFin with feedback, comments, and suggestions for improvements to the Services (collectively, “Feedback”). You hereby grant to OpenFin a non-exclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty-free, sublicensable and transferable license to any Feedback under any and all intellectual property rights that you own or control.
Changes to the Service. We are constantly innovating, changing and improving the Services. We may, without notice, add or remove functionalities or features, create new limits to the Services, or temporarily or permanently suspend or stop a Service.
Our Proprietary Rights. The Services contain materials that are proprietary and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws and treaties. The Services are also protected as a collective work or compilation under copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Services. You acknowledge that the Services contain original works that have been developed, compiled, prepared, revised, selected, and arranged by OpenFin and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and which constitute valuable intellectual property of OpenFin and such others. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the Services, shall, as between you and OpenFin, at all times be and remain the sole and exclusive property of OpenFin.
WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY
THE SERVICES AND PROFILE CONTENT, WHETHER PROVIDED BY OPENFIN, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, OPENFIN DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL OPENFIN OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICES, OR ANY LINK PROVIDED ON THE SERVICES, WHETHER OR NOT OPENFIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE SERVICES TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PAID PRODUCT OR SERVICE, $100. OPENFIN DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY THIRD PARTY SERVICE MADE AVAILABLE THROUGH THE SERVICES, AND OPENFIN WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTIES. OPENFIN WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.
Exclusions and Limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 5. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 5 specifically do apply to you.
The Services may provide you with access to (1) information and content provided by third parties; (2) links to third-party websites or resources; (3) third-party applications, extensions, or plugins; or (4) third-party products and services for sale directly to you (collectively, “Third-Party Services”). OpenFin is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available through Third-Party Services, (ii) any errors or omissions in Third-Party Services, or (iii) any information handling practices or other business practices of the operators of such Third-Party Services. You further acknowledge and agree that OpenFin shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
OpenFin reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that OpenFin shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
Term and Termination
Term. These Terms commence on the date that you first access or use the Services and will continue in effect until otherwise terminated by you or your employer. Upon termination of these Terms for any reason, you will cease your use of the Services.
Mandatory Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Application. You and OpenFin agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 11 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at firstname.lastname@example.org and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with OpenFin, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in Section 11.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of OpenFin shall be finally settled by binding arbitration administered by the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS”). The JAMS rules will govern payment of all arbitration fees. Except as provided below, you will not be responsible for any arbitration filing fees that exceed the amount you would pay for a court filing, or $200, whichever is greater. For non-frivolous and non-time barred claims. At the conclusion of the Arbitration, OpenFin will reimburse all arbitration fees for claims less than $75,000. OpenFin will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous or time-barred.
Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration (“Demand”) that (i) briefly explains the dispute, (ii) lists your and OpenFin’s names and addresses, (iii) specify the amount of money in dispute, if applicable, (iv) identify the requested location for a hearing if an in-person hearing is requested, and (v) state what you want in the dispute; (b) send one copy of the Demand to JAMS, along with a copy of these Terms and the filing fee required by JAMS; and (c) Send one copy of the Demand for Arbitration to us at email@example.com.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration.
Governing Law and Venue. For individuals residing outside the United States, arbitration shall be initiated in New York City, New York and you and OpenFin agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. Enforcement of these Arbitration Terms will be governed by New York law.
Class Action and Group Arbitration Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND OPENFIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also initiate matters or demand that matters be withdrawn and refiled in small claims court in New York City, New York for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to firstname.lastname@example.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Service or within 30 days of changes to this section being announced on the Site. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, OpenFin also will not be bound by them.
Changes to This Section. OpenFin will provide thirty (30) days’ notice of any changes to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will apply prospectively to any unfiled claims. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.
Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.
Controlling Law and Severability
These Terms shall be construed in accordance with and governed by the laws of New York notwithstanding its conflicts of law principles. Any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the state or federal courts of New York County, New York, and you and OpenFin consent to the exclusive jurisdiction of such courts.
You agree that neither you nor any business or entity on whose behalf you are acting i) are in a location embargoed under U.S. Economic Sanctions, such as Iran, North Korea, Cuba, Crimea, or Syria, ii) are listed on any restricted parties list issued by any U.S. or European governmental entity or international organization (“Restricted Parties Lists”), or iii) will utilize this product to service, directly or indirectly, a sanctioned location or any entity appearing on any Restricted Parties Lists.
Force Majeure. Under no circumstances shall OpenFin or its licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
No Waiver. No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of OpenFin to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Statute of Limitations. Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and OpenFin and govern your use of the Services, and supersede any prior agreements between you and OpenFin on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by OpenFin without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of OpenFin. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
Notices. We may deliver notice to you by e-mail, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) 80 Broad Street, 35th Fl., New York, NY 10004 or (2) email@example.com.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.