Kontango, Inc. (“Kontango” or “we”) provides its Service (as defined below) to you through its web site located at https://www.kontango.com/tos (the “Platform”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the platform, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a Kontango, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
Kontango may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on the Site. You can review the most current version of this TOS at any time https://www.kontango.com/tos. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the platform and send a cancellation email tosupport@kontango.com.
As part of the registration process, your email will be used as your username and you will set your password for your account (“Account”).
Description of Service. The “Platform” is designed to provide you with access to housing market data, including pricing, volume and day to day activity, commonly relied upon by commodity traders to make trading decisions (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS.
General Conditions/ Access and Use of the Service.
Subject to the terms and conditions of this TOS, you may access and use the platform only for lawful purposes. All rights, title and interest in and to the platform and its components will remain with and belong exclusively to Kontango. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the platform or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Kontango provides you or publishes in connection with the platform, and you shall promptly notify Kontango if you learn of a security breach related to the Service.
Any questions, comments, suggestions, ideas, feedback, reviews, or other information about the platform (“Submissions”), provided by you to Kontango are non-confidential and Kontango will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment, attribution, or compensation to you. You agree to cooperate with and provide reasonable assistance to Kontango in promoting and advertising the platform.
You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Kontango reserves the right to access your account in order to respond to your requests for technical support. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). By posting Your Content on or through the Service, you hereby do and shall grant Kontango a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the platform. Kontango has the right, but not the obligation, to monitor the platform, Content, or Your Content. You further agree that Kontango may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
Kontango maintains a comprehensive, written information security program that contains administrative, technical, and physical safeguards that are appropriate to (a) the size, scope and type of Kontango’s business; (b) the type of information contained in Your Content; and (c) the need for security and confidentiality of such information.
You understand that the operation of the platform, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Kontango’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the platform. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Kontango will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
The failure of Kontango to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Kontango, even though it is electronic and is not physically signed by you and Kontango, and it governs your use of the platform.
Subject to the terms hereof, Kontango may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
Representations and Warranties. You represent and warrant to Kontango that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Kontango to perform its obligations) in connection with the platform without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Kontango’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
Termination. You have the right to terminate your account at any time by sending a cancellation request to support@kontango.com. Subject to earlier termination as provided below, Kontango may terminate your Account and this TOS at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Kontango may also terminate this TOS upon thirty (30) days’ notice, if you breach any of the terms or conditions of this TOS. Kontango reserves the right to modify or discontinue, temporarily or permanently, the platform (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by Kontango upon any termination of your account in its sole discretion.
FINANCIAL SERVICES DISCLAIMER. Nothing on or provided through the platform should be considered an offer, solicitation of an offer, or advice to buy or sell securities. Any projections or forecasts are hypothetical in nature and may not reflect actual future performance. You further understand that by using the platform, Kontango will not advise you personally concerning the nature, potential, value or suitability of any particular security, portfolio of securities, transaction, investment strategy or other matter. If any of the information contained in or through the waitlist process is deemed to be investment advice, such information is impersonal and not tailored to the investment needs of any specific person. You acknowledge that you are responsible for your own financial decisions. You understand and acknowledge that there is a very high degree of risk involved in trading securities. Factual statements provided through Kontango’s products or services, are made as of the date stated and are subject to change without notice. It should not be assumed that the methods, techniques, or indicators presented in these products or services will be profitable, or that they will not result in losses.
DISCLAIMER OF WARRANTIES. The platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Kontango or by third-party providers, or because of other causes beyond our reasonable control. HOWEVER, THE platform, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND KONTANGO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT KONTANGO DOES NOT WARRANT THAT THE platform service WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM KONTANGO OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL KONTANGO BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, KONTANGO’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
U.S. Government Matters. You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Kontango on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS
Assignment. You may not assign this TOS without the prior written consent of Kontango, but Kontango may assign or transfer this TOS, in whole or in part, without restriction.
Miscellaneous. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Kontango in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Governing Law. This TOS shall be governed by the laws of the State of New York without regard to the principles of conflicts of law. Unless otherwise elected by Kontango in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of New York for the purpose of resolving any dispute relating to your access to or use of the Service.
Privacy. Please visit https://www.kontango.com/privacy to understand how Kontango collects and uses personal information.
