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Eminus Group, LLC Terms of Service

Updated: June 1, 2024

1) Acceptance of Terms; Modification to Terms.

Eminus Group, LLC (“Eminus”) provides a financial and accounting benchmarking application and website, as well as associated software and services (collectively the “Services”). Unless you and Eminus enter into a separate agreement, Eminus provides the Services subject to these Terms of Service (“Terms”).

The terms “Eminus”, “we”, “us” “our” and similar terms refer to Eminus Group, LLC. The terms “you,” “your,” “user” and similar terms refer to you as a user of the Services. If you are using the Services on behalf of an entity, the terms “you,” “your,” “user” and similar terms shall also refer to the legal entity that you represent. Unless otherwise specified, the Terms apply to all users of the Services, whether just browsing our website, acting as a registered user of our software and/or application, or accessing dashboards as a Client User (defined below).

By acknowledging these Terms and/or using the Services, you are indicating your agreement to be bound by these Terms, including our Privacy Policy (defined below), and all revisions thereof. If you do not agree to these Terms, do not accept them and discontinue using and accessing the Services. These Terms are applicable to your use of the Services regardless of how you accessed the Services.

These Terms and our Privacy Policy are resources for you to get a better understanding of how our Services works and how we will interact with you. We may modify the Terms at any time. If the modifications to the Terms constitute a material change, in Eminus’ good faith reasonable judgment, Eminus will notify you via email and/or post a notice on the homepage of the Services. You should review these Terms from time to time so that you understand the terms and conditions of your use of the Services. If you do not agree to any amendment of these Terms, you must immediately stop using the Services. Your continued use of the Services after any modification to these Terms after such notice constitutes acceptance of the amended Terms. If you ever have any questions about these Terms, please do not hesitate to contact us.

2) Member Account, Password

Certain aspects of the Services require you to register and create an account. Creating and activating your account requires the creation of a password and the confirmation of your email address. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Eminus of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Eminus cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

You represent and warrant that all contact and personal information and other data provided to Eminus during the registration process and otherwise shall be accurate and complete. If there are any changes to your contact information, you shall promptly update your registration information with Eminus.

3) Fees

As consideration for the license granted to you by us, you shall pay us the fee(s) specified on our website, on the third-party application from which you are accessing the Services, through the Services, or otherwise in writing by us (each, an “Order”). Fees shall be due and payable in accordance with the terms of the applicable Order, and you hereby acknowledge that certain fees may be payable in full prior to access to the Services. For the avoidance of doubt, we reserve the right to suspend and/or terminate your access to the Services immediately and without notice upon any failure to pay any amount required hereunder.

4) Client Users

In each case solely as set forth in an Order, and at all times in accordance with these Terms, we may authorize certain users (“Commercial Users”) to provide to their third-party clients and customers (“Client Users”) the limited, view-only ability to access certain reports, dashboards and other components of the Services (“Client Access”). Details regarding a Commercial User’s ability to provide Client Access, including without limitation the number of unique Client Users to whom a Commercial User is authorized to provide Client Access and the specific components of the Services that Commercial Users may so provide, shall be set forth in an Order. For the avoidance of doubt, nothing in this Section or these Terms shall be construed to permit any user, including without limitation any Commercial User, to resell access to the Services, except as expressly provided in these Terms and the applicable order.

To the extent you are a Commercial User, (i) you hereby agree to indemnify us from all damages arising from, and to take full responsibility for, your Client Users’ use of and access to the Services or any portion thereof, and (ii) you shall ensure that each of your Client User’s use of and access to the Services or any portion thereof will at all times comply with these Terms and all applicable law.

5) User Conduct

In using this Services, you agree:

  1. Not to impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
  2. Not to upload, download, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation;
  3. Not to upload, download, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  4. Not to upload, download, post, email or otherwise transmit false or misleading information;
  5. Not to disrupt or interfere with the security of, or otherwise abuse, the Services, or any services, system resources, accounts, servers, or networks connected to or accessible through the Services or affiliated or linked websites.
  6. Not to access, tamper with or use non-public areas of the Services. Unauthorized individuals attempting to access these areas of the Services may be subject to prosecution and termination of their account;
  7. Not to disrupt or interfere with any other user’s enjoyment of the Services or affiliated or linked websites, including without limitation, through any trolling, belligerent or antagonistic behavior towards other users;
  8. Not to collect or store personal information about any other user of the Services.
  9. Except as expressly authorized by us in an Order with a Commercial User, not to use any content or other information provided on or through the Services, which does not belong to you, for any commercial purpose including by selling, offering for sale, distributing, reposting or licensing anyone else’s content or information that you may obtain through use of the Services.
  10. Not to use any page-scraper, spider, robot or other automatic device or methodology to access, acquire, copy or monitor any information or content provided on or through the Services.
  11. Not to copy, republish, mirror, transmit, perform, sell or distribute any part of the Services for any commercial or other purpose or other than as expressly permitted herein.

6) Privacy Policy

Your privacy is very important to us at Eminus. As discussed in greater detail in our Privacy Policy, located at eminusgroup.com/privacy-policy (“Privacy Policy”), we collect and store personal information when you create an account and move through and use the Services. Eminus does not share customer information (including email addresses) outside the Eminus unless it is necessary to provide you with products or services available from Eminus. This may include merchants, service providers that provide support services to Eminus or that help Eminus market its products and services, administer our programs, and assist with operations. We will never sell or rent your telephone or email information to third-party marketers. By using the Services and accepting these Terms, you expressly consent to Eminus’ use of your personal information (including using email to communicate with you) as described in the Privacy Policy, which is incorporated herein by reference.

7) Data

We will take reasonable precautions to protect this information from loss, misuse, unauthorized disclosure or alteration, including putting in place appropriate physical, electronic and administrative procedures to safeguard and secure such information. We use encryption when collecting or transferring sensitive data (e.g., card information, personal and user data).

8) Proprietary Rights

Eminus and its licensors own all proprietary rights to the Services and all content and technology related thereto. We hereby grant to you a revocable, non-assignable, and non-exclusive license to download and to use the Services solely in accordance with these Terms and as permitted in the applicable Order. All rights in and to the Services not expressly granted herein are reserved by Eminus.

You acknowledge and agree that any data, materials or content contained or distributed on or through the Services by Eminus or any of its officers, directors, employees or agents (“Eminus Content”) is protected by trademarks, service marks, patents, copyrights, and/or other proprietary rights and laws and, as between you and Eminus, shall belong to Eminus. You may not use, reproduce or distribute any Eminus Content without the authorization of the owner of such Eminus Content.

You acknowledge and agree that the Services, including all software used in connection with the Services, contain proprietary and confidential information that is protected by applicable intellectual property and other laws. The Services and all such software shall remain the property of Eminus, and you agree not to modify, rent, lease, loan, sell, distribute, reverse engineer or create derivative works based on the Services or such software, in whole or in part. You further agree not to use the Services in order to monitor its availability, performance or functionality, or to build a competitive product or services.

If you provide us with any feedback or suggestions regarding the Services, you hereby assign to Eminus all rights in such feedback and suggestions and agree that we may use the same in any manner we deem appropriate, without attribution or consideration to you.

9) Indemnity

You agree to defend, indemnify and hold Eminus and our officers, directors, employees and agents harmless from all judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) the information you submit or transmit through the Services; (b) your use of the Services; (c) your violation of these Terms; or (d) your violation of any rights of a third party.

10) Termination

You agree that Eminus may, in its sole discretion, terminate your username, password, account (or any part thereof) or use of the Services, and remove and discard any data or content you may have input or contributed to the Services, in the event you violate any provision of these Terms or otherwise use the Services in a manner prohibited by Eminus. Eminus may also, in its sole discretion and at any time, modify the Services, or any portion thereof, or, upon no less than sixty (60) days’ prior notice, discontinue providing the Services, or any part thereof. You agree that Eminus shall not be liable to you or any third party for any termination of your access to the Services.

11) Deleting Accounts

If you wish to terminate your Eminus account, please contact us and request to do so. If you delete your account, Eminus reserves the right to keep any information in its archives that it reasonably determines is necessary to comply with its legal obligations.

12) Maintenance and Support

Eminus may make available to you from time to time at no additional charge, updates, revisions and new versions of the Services, and you agree to accept all such updates, revisions and versions. All updates, modifications, revisions and new versions of the Services will be subject to these Terms. We will provide reasonable telephone or email support for use of the Services and use reasonable efforts to maintain availability of the Services. You understand and agree that our support will be limited to technical support for use of the Services and that we will not provide, and will not be responsible for providing, any financial, business, accounting or other information, support or professional services. You understand and agree that from time to time the Services may be unavailable due to maintenance or technical issues.

13) DISCLAIMER OF WARRANTIES

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES, AND THE INFORMATION, SOFTWARE, PRODUCTS, AND MATERIALS AVAILABLE THROUGH IT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EMINUS AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EMINUS OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

EMINUS DOES NOT MAKE ANY WARRANTY THAT (A) THE SERVICES OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, (B) THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (C) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (D) THAT DEFECTS, IF ANY, WILL BE CORRECTED.

14) LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, ITS OWN NEGLIGENCE, SHALL EMINUS OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR YOUR USE OF THE SERVICES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EMINUS’ AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION WHATSOEVER ARISING UNDER THESE TERMS OR YOUR USE OF THE SERVICES EXCEED ANY FEES PAID BY YOU TO EMINUS HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST SUCH CLAIM OR CAUSE OF ACTION. IN THE EVENT THAT YOU OBJECT TO ANY OF THESE TERMS OR ARE DISSATISFIED WITH YOUR USE OF THE SERVICES, YOUR ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE YOUR USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

You agree that any claim or cause of action arising out of or related to your use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arises or is hereby forever barred.

15) GENERAL

If any provision of these Terms is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same economic and/or legal effect as the original provision and the remaining provisions of these Terms shall in no way be affected or impaired.

Eminus shall have no liability for any failure or delay resulting from any condition beyond the reasonable control of Eminus, including but not limited to governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.

These Terms will be governed by the laws of the State of North Carolina.

ANY DISPUTE ARISING OUT OF THE SERVICES OR THESE TERMS WILL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND YOU HEREBY AGREE TO CONSENT TO SUCH ARBITRATION. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. THE ARBITRATION SHALL BE CONDUCTED IN [WILMINGTON, NORTH CAROLINA], AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. EITHER PARTY MAY SEEK ANY INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION NECESSARY TO PROTECT THE RIGHTS OR THE PROPERTY OF YOU OR EMINUS (OR ITS REPRESENTATIVES), PENDING THE COMPLETION OF ARBITRATION.