A1 Trading Company

A1 EDGEFINDER PRO

END USER LICENSE AGREEMENT & TERMS AND CONDITIONS

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Definitions
Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common control with TraderNick’s Forex Group, LLC (hereinafter “Company”) or any user (hereinafter a “Customer”) who utilizes the Company Platform (as hereinafter defined). The term "control" (including the terms "controlling," "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, through membership, by contract or otherwise;

Business Day: means a day other than a Saturday or Sunday or a public holiday in the United Kingdom or the United States, as applicable;

Company Personnel means any employee, officer, agent, consultant, auditor, subcontractor or other third party acting on behalf of Company in the provision of the services.

Company Platform means any software application or interface (including any application programming interface developed by Company) to which Customer is granted access, together with any updates, revisions, or upgrades when made commercially available;

Confidential Information: means all information disclosed by one Party to the other Party concerning the disclosing Party’s business, plans, technology, products and services that are confidential to the disclosing Party, that is not generally available to the public or which, due to its character and nature, a reasonable person under like circumstances would treat as confidential, including Customer Information;

Customer Information: means information in respect of Customer provided by, or on behalf of, Customer to Company from time to time, including Personally Identifiable Information;

Default: means any act, event or omission, or series of connected acts, events or omissions, which results in the relevant party incurring a liability to the other party under or in relation to this Agreement, including liability for breach of contract, tort (including negligence), breach of statutory duty, misrepresentation (whether innocent or negligent), restitution or any other theory of liability;

Documentation: means any Company documentation made available to Customer relating to the use of the Company Platform;

Fees: means the fees for the provision of the Services.

IPR Claim means any claim or action by any third party that the use of the Company Platform (or any part of the Company Platform) infringes the copyright of that third party;

Intellectual Property Rights: (a) patents, inventions, designs, copyright and related rights, database rights, knowhow and Confidential Information, trade marks (whether registered or unregistered) and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future; and (c) all applications, extensions and renewals in relation to any such rights.

Laws: means any applicable laws, regulations, directives, statutes, subordinate legislation, common law or civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court, competent authority or regulatory body and all codes of practice, as the same may be amended or varied from time to time;

Party: means Customer, Company, or an Affiliate thereof, as such terms may apply.

Personally Identifiable Information: means any information relating to a person which enables such person to be identified, directly or indirectly such as a name, an identification number, location data, an online identifier or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

Quote: means that certain pricing quote presented to Customer by Company which shall reflect the amount of Recurring Fees charged to Customer and due and payable pursuant to the terms herein, including, but not limited to Section 8.

Recurring Fees: means those fees identified on the Quote provided to you summarizing the monthly fees for the Term.

Term: shall mean the period after confirmation of payment for the Company Platform until terminated pursuant to the terms included herein.

Year: means the period of twelve (12) months commencing on the Effective Date, and each and any period of twelve (12) months commencing on an anniversary of the Effective Date subsequent thereto.

[RESERVED]
Services and Provision of Company Platform
Subject to the Customer's payment of the Fees and the terms and conditions of this Agreement, Company will grant access to the Company Platform to Customer pursuant to the terms and conditions of this Agreement and shall provide to the Customer those certain services necessary for onboarding to the Company Platform (the “Implementation Services” and together with use of the Company Platform, the “Services”).
Company may in its sole discretion modify, enhance, or otherwise change (including through any routine upgrades and bug fixes) the Company Platform at any time (in whole or in part) provided the foregoing does not have a material and adverse impact on the functionality, performance or security of the Company Platform. Customer agrees that nothing stated herein shall limit Company in any way from determining in its sole discretion how to provide the Company Platform to Customer.
Disclaimers
Company’s expertise is in aggregating and sharing publicly available information for use by Customer. Company and Company Personnel cannot and do not provide any, legal, credit, or financial services or any other professional advice, and are not acting as Customer’s professional advisors in any way.
THE INFORMATION, CONTENT, AND DATA PROVIDED THROUGH COMPANY PLATFORM, INCLUDING BUT NOT LIMITED TO STOCK TRADES, MARKET INSIGHTS, AND ANY RELATED MATERIALS, ARE FOR INFORMATIONAL PURPOSES ONLY. NOTHING ON THE COMPANY PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, FINANCIAL ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY FINANCIAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL. WHILE COMPANY STRIVES TO PROVIDE ACCURATE, TIMELY, AND RELIABLE INFORMATION, THE COMPLETENESS, RELIABILITY, OR ACCURACY OF THE DATA PRESENTED CANNOT AND IS NOT GUARANTEED. FINANCIAL MARKETS AND SECURITIES CAN BE UNPREDICTABLE AND INVESTMENTS COME WITH RISKS, INCLUDING THE LOSS OF PRINCIPAL. COMPANY CANNOT GUARANTEE THE ACCURACY, COMPLETENESS, TIMELINESS, OR CORRECT SEQUENCING OF ANY OF THE DATA OR INFORMATION. NO WARRANTY, EXPRESSED OR IMPLIED, AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY DATA OR INFORMATION IS GIVEN OR MADE BY COMPANY OR ITS AFFILIATES.
BEFORE MAKING ANY INVESTMENT DECISIONS OR TRADING BASED ON THE INFORMATION PRESENTED ON THE COMPANY PLATFORM, IT IS ESSENTIAL FOR USERS TO CAREFULLY CONSIDER THEIR FINANCIAL SITUATION, INVESTMENT GOALS, RISK TOLERANCE, AND CONSULT WITH A FINANCIAL ADVISOR. BY ACCESSING AND USING THE INFORMATION ON COMPANY PLATFORM, CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY RELIANCE ON OR USE OF SUCH INFORMATION IS AT CUSTOMER’S SOLE RISK. THE COMPANY PLATFORM, COMPANY, ITS PARTNERS, AND CONTRIBUTORS SHALL NOT BE HELD LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE INFORMATION ON COMPANY PLATFORM OR RESULTING FROM ANY DATA, INFORMATION, OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE COMPANY PLATFORM OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER TRANSMISSIONS OR DATA OR ARISING FROM ANY OTHER MATTER RELATING TO COMPANY PLATFORM.
ALWAYS DO YOUR OWN DUE DILIGENCE AND SEEK PROFESSIONAL ADVICE WHEN MAKING ANY FINANCIAL DECISIONS. INVESTING IN STOCKS AND OTHER SECURITIES IS NOT SUITABLE FOR EVERYONE AND CARRIES THE RISK OF LOSING MONEY. YOU SHOULD NEVER INVEST MONEY THAT YOU CANNOT AFFORD TO LOSE.
REMEMBER: PAST PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS.
Customer rights and responsibilities.
Customer acknowledges that the Company Platform requires the good faith cooperation of Customer in relation to Customer’s duties and obligations under this Agreement. Customer shall provide such assistance to Company and provide Company with any and all information, data and documentation (including the Customer Information) that is reasonably requested by Company as soon as reasonably practicable following such request to enable Company to provide access to the Company Platform. Customer shall also be responsible for ensuring that it has obtained and maintained (at its own expense) any necessary hardware, software, services, internet connections and other items as required for Customer’s integration to, access and use of the Company Platform. Company shall not be liable for any failure to provide the Company Platform to the extent arising from Customer’s failure to comply with its obligations under this Clause 5.1 and Company may, acting reasonably, charge Customer any reasonable costs and expenses incurred because of any such failure to comply.
As between Company and Customer, Customer as applicable shall own all right, title and interest in and to all the Customer Information. Customer shall at all times have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Information. Customer shall ensure that the use of the Customer Information does not infringe the rights of any third parties.
[RESERVED]
Customer hereby grants Company, its Affiliates and Suppliers, on and subject to the terms and conditions of this Agreement, a royalty free, non-exclusive licence to access, use, copy, process, reproduce, perform, display, modify, distribute and transmit the Customer Information in connection with providing, operating, testing, and improving the Company Platform. Customer shall provide all necessary cooperation and access to such Customer Information as may be required by Company. Company uses certain elements of Customer Information to provide the Company analytics tool and to enhance the Services that it provides to Customer. For these sole purposes, Customer grants to Company and its Affiliates a royalty-free, worldwide, sublicensable and irrevocable licence to use Customer Information on an aggregated and non-descriptive basis provided that Company removes any information that is specific to Customer, including any Personally Identifiable Information.
Warranties.
Each Party warrants that: (i) it has the corporate power and authority to enter into and perform its obligations in this Agreement; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any other agreement to which such Party is otherwise bound; (iii) when executed by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; (iv) it shall comply with all applicable Laws relating to in the case of Company, its provision of the Services and in the case of the Customer, its receipt of the Services in the Countries where the Services are delivered, including but not limited to any data protection, anti-money laundering, and anti-bribery legislation; (v) it shall not require the other Party to act in violation of applicable Law; and (vi) it shall not knowingly introduce, or expose the other Party to, any computer code or other computer instructions, devices or techniques, including without limitation those known as viruses, disabling devices, Trojan horses, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof (“Virus”) and shall at all times use up-to-date and reputable anti-virus software to prevent the introduction of a Virus.
Company warrants that it shall perform the Services in a professional manner using reasonable skill and care and in accordance with industry standards.
The Customer warrants to Company that the use of the Customer Information in accordance with this Agreement will not: (i) breach any laws, statutes or regulations; or (ii) give rise to any cause of action against Company, in each case in any jurisdiction and under any applicable law.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY LAW, COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTIES, REPRESENTATIONS, UNDERTAKINGS, CONDITIONS OR OTHER TERM OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, CUSTOM, COURSE OF DEALING, TRADE, USAGE OR OTHERWISE, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT. SAVE FOR THE FOREGOING, THE COMPANY PLATFORM AND ALL RELATED INFORMATION, TECHNOLOGY AND SERVICES PROVIDED BY COMPANY ARE PROVIDED “AS IS” AND “AS AVAILABLE".
Platform Subscription.
Subject to Customer's compliance with all the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable licence during the Term to access and use the Company Platform solely for the internal business purposes of Customer. This Agreement is not a sale, or assignment and transfer, of any software. Subject only to the limited license granted under this Agreement, as between Customer and Company, Company shall own and retain all right, title and interest to all Intellectual Property Rights (including all subsequent copies of, and modifications, adaptations, amendments and additions to the same regardless of who made them) in and to the Company Platform and all portions thereof, excluding Customer Information.
The Customer grants Company and its Affiliates and suppliers a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Company Platform any enhancement requests or feedback provided by the Customer, so long as the Customer is not identified in any way as the source of such feedback.
Customer shall be responsible for all use of the Company Platform by the Customer. Customer shall be responsible for maintaining the security of their information systems, access to the Company Platform, passwords and/or other authentication credentials and files. Company will not be liable for any loss caused by unauthorized use of the Company Platform and. The Customer shall notify Company in writing of any unauthorized use that comes to Customer’s attention as soon as reasonably practicable after becoming aware and provide all reasonable cooperation to prevent and terminate such use.
Customer shall not: (i) except to the extent permitted by any applicable law which is incapable of exclusion by agreement between the Parties, copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port, reverse engineer, decompile, disassemble, or otherwise attempt to discover or modify in any way the Company Platform or the underlying ideas, algorithms or trade secrets therein; (ii) transfer, assign, rent, lease, lend, license, sublicense, distribute, publish or otherwise make the Company Platform available to any third party or provide any other service bureau arrangement, except as expressly permitted by this Agreement; (iii) use or authorize the use of the Company Platform in any manner or for any purpose that is unlawful; (iv) use the Documentation for any reason other than in connection with the Company Platform; (v) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information that it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (vi) permit any third party to engage in any of the foregoing.
The Customer acknowledges that Company may from time to time carry out routine and emergency maintenance of the Company Platform. The Customer may be unable to access the Company Platform during any period in which routine or emergency maintenance is being carried out, though Company will use its reasonable endeavours to keep disruption to and unavailability of the Company Platform to a minimum.
Without limitation to Clause 15.6 (Force Majeure), the Customer acknowledges that Company has no direct control over the availability of bandwidth over the entirety of the internet and that, while Company will use such endeavours as Company deems appropriate to facilitate the Company Platform, Company shall not be responsible for delays caused by such unavailability.
Fees; Payment.
All fees shall be payable in a one-time instalment, as listed on Company’s website.
All amounts due under from Customer to Company shall be paid in full without any set-off, counterclaim, deduction or withholding other than any deduction or withholding of taxes required by applicable law. If any such deduction or withholding is required by applicable law, Customer shall, when making the payment to which the withholding or deduction relates, provide to Company within 14 days of payment, the local withholding tax certificate.
Limitation of liability.
NEITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL BE LIABLE FOR ANY: (I) LOSS OF CONTRACTS, PROFITS OR BUSINESS; (II) LOSS OF GOODWILL OR REPUTATION; (III) LOSS OF ANTICIPATED SAVINGS; OR (IV) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER OF THE OTHER PARTY, IN EACH CASE HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LOSS WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES, OR WHETHER IN CONTRACT, TORT (INCLUDING FOR NEGLIGENCE), BREACH OF STATUTORY DUTY, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR ANY OTHER THEORY OF LIABILITY.
EXCEPT FOR AMOUNTS OWED TO COMPANY BY CUSTOMER UNDER THIS AGREEMENT AND SUBJECT TO SECTION 9.3 BELOW, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN RESPECT OF ANY AND ALL CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO 100% (ONE HUNDRED PERCENT) OF THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY.
FOR ANY CONFIDENTIALITY BREACH UNDER CLAUSE 14 OR ANY DATA PROTECTION BREACH UNDER ANY DATA PROTECTION FRAMEWORK AGREED BETWEEN THE PARTIES, EACH PARTY’S TOTAL AGGREGATE LIABILITY IN RESPECT OF ALL CAUSES OF ACTION ARISING WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY SHALL BE LIMITED TO: (1) 200% (TWO HUNDRED PERCENT) OF THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY PURSUANT TO THIS AGREEMENT.
NOTHING IN THIS AGREEMENT SHALL OPERATE TO EXCLUDE OR RESTRICT EITHER PARTY’S LIABILITY TO THE OTHER IN RESPECT OF:
ITS INDEMNIFICATION OBLIGATIONS UNDER CLAUSE 10;
DEATH OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE;
ITS FRAUD OR FRAUDULENT MISREPRESENTATION BY IT OR ITS EMPLOYEES; OR
ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
NOTHING IN THIS AGREEMENT SHALL RESTRICT OR LIMIT EITHER PARTY’S OBLIGATION TO MITIGATE ANY LOSS IT MAY SUFFER OR INCUR AS A RESULT OF AN EVENT THAT MAY GIVE RISE TO ANY CLAIM UNDER THIS AGREEMENT, INCLUDING ANY INDEMNITY CLAIM.
For the purposes of calculating liability pursuant to Clause 9.2 and Clause 9.3, where a cause of action arises in a Year and continues across subsequent years and or continues after the termination of this Agreement, then the cause of action shall be deemed to have arisen in the Year in which the cause of action first arose.
Indemnity.
Subject to the provisions of this clause 10.1, and clauses 10.2, 10.3, 10.5 and 17, Company shall defend, indemnify, and hold harmless Customer from and against any losses, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of any IPR Claim which is valid and enforceable in the legal jurisdiction in which the IPR Claim is commenced.
[RESERVED]
The indemnified party shall promptly notify the indemnifying party in writing of any claim for which it seeks indemnification hereunder; provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying party shall bear full responsibility for, and shall have the right to solely control, the defence (including any settlements) of any such claim; provided, however, that (a) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with the progress of such litigation or settlement and (b) the indemnifying party shall not have any right, without the indemnified party’s written consent (which consent shall not be unreasonably withheld), to admit any liability or settle any such claim in a manner that does not unconditionally release the indemnified party or which would materially damage the reputation of the indemnified party. At the indemnifying party’s request, the indemnified party will provide reasonable cooperation with respect to any defence or settlement.
Clauses 10.1 to 10.3 above state each Party’s entire liability and sole and exclusive remedy, regarding any infringement, misappropriation or other violations of third-party Intellectual Property Rights relating to the subject matter of this Agreement.
Company shall under no circumstances be liable to the Customer to the extent any claim arises out of: (a) the use of the Company Platform by Customer in combination with other data, products, software, processes or materials not provided or authorized by Company; (b) the modification, updates or enhancements of the Company Platform by Customer or any person on behalf of them; (c) any unauthorized use of the Company Platform by Customer; or (d) the provision of the Customer Information (collectively, the “Customer Indemnity Obligations”).
Customer, at its own expense, shall defend, indemnify and hold harmless Company and Company’s officers, directors, affiliates, employees and agents (the “Company Indemnified Parties”) from and against any claims, suits proceedings, losses, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees) brought by a third party against Company or the Company Indemnified Parties arising from or relating to the Customer Indemnity Obligations or any other violation of this Agreement.
Termination.
Suspension or Termination of use of the Company Platform: At any time, with or without cause or advance notice (except where required by law), Company may suspend the participation, or terminate Customer’s enrollment in the Program. Reasons for suspension or termination include, but are not limited to, violations of this Agreement, or any other agreement between Customer and Company, providing false or misleading information, or circumstances that, in Company’s sole discretion, appear as if the Company Platform has been misused in any way, including, but not limited to, fraud, excessive transactions, or any other abuse. Company also reserves the right to suspend or terminate use of the Company Platform, in whole or in part, for any reason, at any time, with or without prior notice (except where required by law). Company’s decisions regarding the Company Platform are final.
Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if: (i) the other Party fails to pay any undisputed amounts due under this Agreement and remains in default for not less than thirty (30) days after payment becomes due; (ii) the other Party commits a material breach of this Agreement which is incapable of remedy or is capable of remedy and fails to remedy such breach, within a period of thirty (30) days after being notified in writing to do so; (iii) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or (iv) the other Party is subject to any proceedings relating to the liquidation of its assets or insolvency or is unable to pay its debts as they fall due.
At any time during the Term, Company may immediately upon notice to Customer (to the extent that the provision of notice is reasonably possible) suspend Customer’s access to the Company Platform at its sole discretion acting reasonably where: (i) continued provision of the Company Platform would result in material liability or harm to Company or other Company customers; or (ii) there is a threat to the technical security or integrity of Company or other Company customers. Company shall reinstate the suspended Company Platform within a reasonable time once it has established the cause of the suspension has been remedied or ceased to exist. Where the cause of the suspension persists for more than thirty (30) days, Company may immediately terminate this Agreement without incurring any liability to the Customer.
Effects of termination.
Upon any termination of this Agreement: (i) Company shall cease to provide the Company Platform to Customer; (ii) Customer shall pay all Fees that are due and payable under this Agreement; and (iii) all licences granted hereunder (including rights to access the Company Platform) by Company shall immediately terminate.
Confidentiality.
Each Party shall use the Confidential Information of the other Party only for the purposes of performing their obligations and exercising their rights in connection with this Agreement and shall not disclose such information to any third party except as permitted by this Agreement without the disclosing Party’s written consent.
Each Party shall protect the Confidential Information of the other Party against unauthorised disclosure by using at least the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, and in any event, at least a reasonable degree of care.
Confidential Information may be disclosed by the receiving Party to its Affiliates, employees, and suppliers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information consistent with the restrictions in this Agreement.
The obligations in this Clause 13 shall not apply to Confidential Information that: (i) is already or becomes generally available to the public after the time of disclosure other than through breach of this Agreement by the receiving Party; (ii) was in the lawful possession of the receiving Party without restriction prior to disclosure by the other Party; (iii) was rightfully received by the receiving Party from an independent third party who has full right of disclosure without restriction, or (iv) was independently developed by either Party without the use of the Confidential Information of the other Party. The receiving Party may make disclosures required by law or any court, tribunal, regulator, or government agency with competent jurisdiction, provided that to the extent permitted by law, the receiving Party shall provide prompt written notice and reasonable assistance to the disclosing Party for the purpose of enabling the disclosing Party to prevent and/or limit the disclosure. If the receiving Party is unable to inform the disclosing Party before the Confidential Information is disclosed, it shall (to the extent permitted by law) fully inform the disclosing Party immediately afterward in writing of the disclosure and the Confidential Information that was disclosed.
All Confidential Information shall remain the property of the disclosing Party and the disclosing party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except as expressly agreed otherwise in this Agreement) operate to transfer or operate as a grant of any licences or right to use any Intellectual Property Rights in the Confidential Information.
Upon written request of the disclosing Party, the receiving Party agrees to return or (to the extent technically possible) destroy or put beyond reasonable use the Confidential Information provided by the disclosing Party; provided however, that the receiving Party may retain copies of the disclosing Party’s Confidential Information for routine backup and archival purposes or in accordance with applicable law.
This Clause 13 shall remain in full force and effect notwithstanding any termination of this Agreement.
Third Party Beneficiaries’ Claims
Subject to Company and Company Personnel being entitled to rely on and enforce the relevant provisions of this Agreement, a person who is not a party to this Agreement may not enforce any of its provisions under any legislation otherwise entitling it to do so nor bring a claim for the recovery of any losses, liabilities, expenses or costs arising out of or relating to this Agreement or the Company Platform. The consent of any third party is not necessary for any variation (including any release or compromise in whole or in part of any liability) or termination of this Agreement.
ALL CLAIMS BROUGHT BY THE CUSTOMER UNDER OR AS A RESULT OF THIS AGREEMENT (WHETHER IN CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING NEGLIGENCE), RESTITUTION, BREACH OF STATUTORY DUTY OR OTHERWISE) SHALL BE BROUGHT AGAINST COMPANY ONLY AND NOT ANY COMPANY PERSONNEL.
CUSTOMER SHALL PROCURE THAT ANY CLAIM WHICH IT HAS AGAINST COMPANY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE PURSUED BY CUSTOMER AGAINST COMPANY ONLY. CUSTOMER ACKNOWLEDGES AND SHALL PROCURE THAT ANY AND ALL SUCH CLAIMS SHALL BE SUBJECT TO THE TERMS OF THIS AGREEMENT (INCLUDING THE AGGREGATE EXCLUSIONS AND LIMITATIONS SET OUT IN THIS AGREEMENT, AS APPLICABLE, WHICH SHALL BE DEEMED TO APPLY TO ALL SUCH CLAIMS).
To the fullest extent permitted by applicable law, Customer shall indemnify Company against all claims against Company and resulting liabilities, losses, damages, costs and expenses arising out of or in connection with any failure by Customer to comply with its obligations set out in this Clause 14.4.
General
Notices. All notices or other communications required in connection with this Agreement shall be in writing, in English and shall be delivered by hand or by pre-paid first-class post, recorded delivery post, or airmail at the addresses set forth in the preamble to this Agreement, or by electronic mail to Company at Stephen.bush@millerlavoie.com, and to Customer at that email address or principal office location as designated by the Customer. In the case of Company, the notice shall be addressed to: Attention: Company Legal Department and in the case of Customer shall be addressed to: Customer Legal Department. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first working day following delivery). A correctly addressed notice sent by pre-paid first-class post, recorded delivery post, or airmail shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. Billing-related notices to Customer shall be addressed to the billing contact designated by Customer in writing.
Dispute Resolution. Any dispute shall initially be referred to each Party’s applicable project manager, and such project manager(s) shall work together in good faith to resolve any disputes. If the Parties are unable to resolve a dispute within ten (10) Business Days after referral of the dispute to them (or such longer period as the Parties may agree), then either Party may request in writing that the dispute be further escalated, and after receipt of any such request, each Party shall promptly submit such dispute to appropriate senior management of each Party for resolution. If such senior management are unable to resolve the dispute within five (5) Business Days from the date such dispute was submitted for consideration (or such longer period as the Parties may agree), then either Party may pursue any right or remedies available it under law, in equity or under this Agreement. If there is a dispute, each Party shall continue to perform its obligations under this Agreement in good faith during the resolution of such dispute, unless and until this Agreement is terminated in accordance with the provisions hereof. Nothing in this Clause 15.2 shall prevent either Party from seeking immediate injunctive relief.
Publicity. Company may identify Customer as a customer of Company on its website and for sales and marketing purposes (e.g. testimonials, joint speaking opportunities/events, and references).
Survival. Each Party’s further rights and obligations under this Agreement will cease immediately on termination of this Agreement, provided that termination will not affect (a) the accrued rights and obligations of the Parties as at the date of termination; or (b) the continued operation of all provisions of this Agreement relating to proprietary rights, payment of Fees accrued, and confidentiality and any other provisions of this Agreement that are necessary for the interpretation and enforcement of this Agreement.
Assignment and Subcontracting. This Agreement shall be binding upon the Parties’ successors and permitted assigns. Neither Party shall assign or transfer this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the above: (i) either Party may assign or transfer this Agreement upon a change of control or pursuant to a sale of all or substantially all the stock or assets of the assigning Party, provided that in the event that Customer is acquired by a Company competitor, Company shall have the right to terminate this Agreement, and (ii) Company may subcontract its obligations to any Affiliate or a Supplier. Any permitted assignment or transfer of this Agreement must be subject to confidentiality provisions which are no less stringent than those set out in this Agreement.
Force Majeure. Neither Party shall be liable for any delay or failure to perform any of its obligations under this Agreement (except for any payment obligations under this Agreement) if such delay or failure results from any event, circumstance or cause beyond its reasonable control (a “Force Majeure Event”) including acts of God, fire, flood, inclement weather, acts of war, terrorism, civil disturbance, strikes, lock-outs or other industrial disputes, utilities or communication services failures, measures of any governmental authority or changes in law that have a material impact and/or adverse effect on Company’s ability to provide the Services, or failures or default of Affiliates or Suppliers as a result of a Force Majeure Event. Under such circumstances the affected Party shall be entitled to a reasonable extension of time to perform its obligations under this Agreement. If the period of delay or non-performance continues for thirty (30) days, the Party not affected by the Force Majeure Event may terminate this Agreement by giving not less than ten (10) days’ prior written notice to the affected Party.
Third-Party Cooperation. Customer shall and shall procure that any relevant third party (such as existing services suppliers and software providers) shall, at its own cost, do anything and execute any document (such as termination of existing suppliers) that Company reasonably requires it to do to enable Company to provide the Implementation Services and the Company Platform.
Non-Solicitation. Neither Party shall solicit or entice the services of any employees of the other Party or their Affiliates or Suppliers who have been engaged in the provision or receipt of the Services during the Term and for a period of one (1) year thereafter other than by means of an advertising campaign open to the general public. Customer shall not approach any Company Suppliers during the Term and for a period of one (1) year thereafter to provide the Services direct to Customer.
Independent Contractors. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, create a relationship of principal and agent for any purpose between the Parties, or authorise either Party to make or enter into any commitments for or on behalf of the other Party.
Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be omitted or altered and amended by the Parties to ensure it is valid and enforceable but reflects the original intent and economic effect. The remaining provisions will continue in full force without being impaired or invalidated in any way.
Counterparts; Electronic Signature. This Agreement may be executed in any number of counterparts, which shall each constitute an original and together constitute one agreement. The Parties may execute this Agreement by electronic signature.
Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Georgia, without application of Georgia conflicts of laws principles.
Entire Agreement. This Agreement constitutes the entire agreement between the parties in relation to its subject matter. It replaces and extinguishes all prior agreements, collateral warranties, collateral contracts, statements, representations and undertakings made by or on behalf of the parties, whether oral or written, in relation to that subject matter. Each Party acknowledges that in entering into this Agreement it has not relied upon any collateral warranties, collateral contracts, statements, representations or undertakings, whether oral or written, which were made by or on behalf of the other party in relation to the subject matter of this Agreement (together "Pre-Contractual Statements") and which are not set out in this Agreement. Each Party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
Changes to Online Service Terms. Company may amend this Agreement at any time in its sole discretion. Any amendment will become effective as to Customer’s Order on the first renewal of the Order that follows the publication of the amendment by at least thirty days. If the amendment materially and adversely impacts Customer’s use of the Services, Customer may terminate the Agreement by giving written notice no later than thirty (30) days following the date the amendment is published and receive a refund of prepaid fees as your sole and exclusive remedy.
Data Protection.
Each party understands and agrees that in fulfilling its obligations under this Agreement, it may receive Personal Information or Non-Public Personal Information of Consumers (“PI”), as those terms are defined in the California Consumer Privacy Act (“CCPA”), and in the Gramm-Leach-Bliley Act (“GLBA”), respectively. Each Party is responsible for its own compliance and agrees to make its best efforts to fully comply with GLBA, CCPA and any applicable federal and state laws privacy laws. Each Party understands that when it shares PI with the other Party, it is granting access to that PI, and may collect and process additional PI to the other Party, solely in its capacity as a Service Provider, as that term is defined in the CCPA, and solely for the business purposes set forth in the Agreement. Each Party represents that, as applicable under the CCPA or GLBA, it will provide CCPA-required notices, privacy policy disclosures, and responses to reasonably verified requests, including, as applicable, that PI has been collected and is being shared with its Service Providers.
If either Party receives a verifiable CCPA request to delete that involves PI of an account provided to a Service Provider, it will timely notify Service Provider and it warrants that it will evaluate and comply with the request pursuant to its obligations under, and subject to any deletion exceptions provided by, the CCPA. Service Provider agrees to timely notify the other Party of CCPA requests received on accounts referred by the other Party.
Interpretation. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. A reference to a person includes a legal or natural person, corporate or unincorporated body (whether or not having separate legal personality), governmental or regulatory body. Clause, Section, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
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There is a significant degree of risk involved in trading securities. With respect to foreign exchange trading, there is considerable risk exposure, including but not limited to, leverage, creditworthiness, limited regulatory protection and market volatility that may substantially affect the price, or liquidity of a currency or currency pair. CFDs are complex instruments and come with a high risk of losing money rapidly due to leverage. The vast majority of retail client accounts lose money when trading in CFDs. You should consider whether you can afford to take the high risk of losing your money.
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