TRADERS AGENCY, LLC
TERMS AND USE AGREEMENT
This Terms and Use Agreement (“Agreement”) provides the terms and uses under
which Traders Agency, LLC (“TA”) will provide User with certain educational
services and products that are offered on the TA website. This Agreement also
provides for the terms and use of the TA website by the User. TA and User may
collectively be referred to in this Agreement as the “Parties” or individually as a “Party.”
In consideration of the acceptance by TA of one or more accounts of User for these
services and products (if more than one account is at any time opened or reopened
with TA, all are covered by this Agreement and are referred to individually and
collectively as the “Account”) and TA’s agreement to provide those services and
products and TA providing access to its website to the User (collectively
“Transactions”), TA and User agree as follows:
1. APPLICABLE RULES AND TERMS.
The Account and the Transactions shall be subject to the terms of this Agreement, the
incorporated by reference (collectively referred to as “Applicable Terms”). User
Agreement. The Account and the Transactions shall also be governed by TA’s
procedures that are in effect from time to time. TA’s failure to comply with the
Applicable Terms shall not relieve User of any obligation or responsibility under this
2. TA SERVICES AND PRODUCTS
Products/Services. TA, at its discretion, may provide User with some or all of the
following: (a) educational products for investing in various markets including, but not
limited to, commodity futures; and/or (b) educational services for investing in various
markets including, but not limited to, commodity futures; and/or (c) access to the TA
website which includes mobile and tablet devices and applications (collectively
Third Parties. TA may arrange for any Products/Services to be effected through a
third party, including another entity affiliated with TA. TA shall exercise due care in
the selection of such person or entity but shall have no responsibility for any actions
taken or omitted by any such person.
Copyright/Trademarks. User agrees the Products/Services may not be copied,
reproduced, published, or imitated, in whole or in part, which includes but is not
limited to, logos, graphics, sounds, images, software and trademarks. The
Products/Services are protected by international copyright, software and trademark
laws and User agrees to not violate those laws by infringing upon those rights held by
Intellectual Property. User agrees the Products/Services provided by TA are
proprietary intellectual property which includes but it is not limited to the authors,
patents, database rights, trademarks, and service marks. User agrees that TA is not
assigning or granting any interest to the User in the proprietary intellectual property
of TA. User agrees the proprietary intellectual property of TA may not be copied,
reproduced, published, modified, imitated, used to create derivative works or
products, in whole or in part. User may not participate in the transfer of, post on the
World Wide Web, or in any way distribute or exploit the Products/Services of TA.
User agrees the Products/Services shall not be accessed by (i) any robot, spider,
scraper, or other automated devices; or (ii) remove or alter any author, trademark or
other proprietary notice or legend displayed in the Products/Services.
Products/Services Non-Transferable. The User will be provided with a unique
username and password to access the TA Products/Services which is non-
transferable. The User will not permit any other person to have access to the
Products/Services by providing the username and password to that person.
Credit Card Charges. TA is a United States company and all payments are made in
United States dollars (USD). If the User is a foreign customer, credit card charges
originating from that country may be subject to foreign credit card processing fees.
Return Policy. Due to the proprietary and copyrighted nature of TA
Products/Services, all sales are final and there are no returns, refunds, or
exchanges. User agrees that once the Products/Services have been accessed by an
email download or on the TA website by the User, final delivery of the
Products/Services has been made by TA.
3. USER INSTRUCTIONS.
User may give TA instructions in writing or in another manner acceptable to TA,
which shall include electronic means. In no event shall TA be deemed to have
received any instruction or other order given by User orally, or in writing (including,
without limitation, instructions or orders sent or given by facsimile, instant messaging
or other electronic means) unless and until TA affirmatively confirms its receipt to
User or acts in accordance therewith. Instructions acted upon by TA shall be deemed to have been transmitted in a manner acceptable to TA whether or not TA agreed to
such manner in advance. Any oral instructions given by a duly authorized
representative of User and accepted by TA shall be deemed not to violate any
applicable statutes or applicable terms requiring contracts to be in writing and User
waives any such defense. TA shall be entitled to rely on any instructions received from any person that has been authorized by User. TA may amend, supplement or cancel User’s instructions when requested by User, unless TA cannot act upon such request and provided that TA’s inability to do so shall not constitute a breach of this Agreement.
4. PAYMENT TO TA.
User agrees to satisfy all financial obligations to TA under this Agreement or
otherwise including payment for Products/Services promptly when due. User agrees
to pay TA promptly on request (a) the charge for the Products/Services; (b) all
delivery costs and charges including insurance, shipping and storage; (c) any taxes
imposed by any applicable taxing authority; and (d) any other amounts owed by User
to TA with respect to the Account or any Transactions.
All such payments shall be in the currency as determined by TA and shall be made
without deduction or withholding.
5. STRATEGIES AND INFORMATION.
User acknowledges that (a) TA does not advise on the merits of any particular
Transaction and makes no representation, warranty or guarantee as to the accuracy or
completeness of any market or other information or trading strategies furnished to
User, and TA shall be under no obligation to provide any ongoing information;
(b) any market or other information and strategies communicated to User by TA are
wholly incidental to the conduct of TA ’s educational business and are provided by
TA for educational purposes only; (c) such information or strategies may be
inaccurate or incomplete, may not have been verified and may be changed without
notice to User and may be inconsistent with proprietary investments or other
strategies of TA, its affiliates or their agents; (d) User has not relied on any strategies
or information furnished to it by TA; (e) TA is not providing investment or
Transactions advice to User, is not acting as a fiduciary or financial, investment or
commodity trading advisor for User and has not given User (directly or indirectly
through any other person) any assurance, guaranty or representation whatsoever as to
the merits (either legal, regulatory, tax, business, investment, financial, accounting or
otherwise) of the Agreement or any Transactions; and (f) there is no warranty made by TA of any kind either implied, expressed or statutory including, but not limited to,
the warranties of non-infringement of third party rights, title, merchantability, fitness
for a particular purpose and freedom from computer virus. User understands that TA and its officers, directors, members, employees, agents or representatives, and affiliated entities may have positions in and may intend to buy or sell Transactions that are furnished to the User, and that the market positions of TA or any such officer, director, member, employee, agent or representative and affiliated entity may or may not be consistent with the Transactions furnished to User by TA.
6. LIMITATION OF LIABILITY.
TA (including its officers, directors, members, employees, agents or representatives,
and affiliated entities) shall not be liable for any losses incurred by User arising out of
any Transactions executed or not executed, cleared or not cleared at a brokerage firm
by the User. In no event shall TA be liable for consequential or special or punitive
damages, or be liable for losses caused directly or indirectly by reason of any cause
beyond its reasonable control including: (a) the actions or inactions of any
government, regulatory or self-regulatory authority, exchange, market, execution
facility, clearing organization, intermediate broker, custodian, sub-custodian, bank,
dealer, swap dealer, major swap participant, counterparty or any other third party;
(b) wars, terrorism, strikes, acts of God; (c) delays, inaccuracies, omissions or failures
of hardware, software, electronic trading systems, execution facilities, order routing
systems, or other transmission or trading systems, devices or communication
facilities, including where caused by a computer virus; (d) the failure of any
exchange, market, execution facility, clearing organization, intermediate broker,
custodian, sub-custodian, bank, dealer, swap dealer, major swap participant, or
counterparty to carry out any duty or responsibility; and (e) any sovereign action by a
county’s government such as: an order of a governmental authority blocking or
limiting transfers or deliveries of the country’s currency outside its borders; rendering
the currency inconvertible into U.S. dollars; devaluing the currency; prohibiting or
imposing substantial restrictions on foreign investments in such country’s capital
markets; or the possibility of expropriation of assets or the imposition of punitive
taxes; or for any other cause or causes beyond the reasonable control of TA .
7. INDEMNIFICATION OF TA.
User will indemnify and hold TA (including its officers, directors, members,
employees, agents or representatives, and affiliated entities) harmless from and
against any and all losses, claims, damages, obligations, liabilities, penalties, fines,
judgments and awards, and will pay on demand all costs, expenses, liabilities, damages, interest, penalties, fines, judgments and awards (including, without
limitation, costs of collection, attorneys’ fees, court costs and other legal expenses)
which TA may incur in connection with (a) User, or its agent’s, actions, inactions and
obligations arising out of any Transactions, the Account or any other obligations
arising under this Agreement; (b) exercising its rights and remedies in connection
with this Agreement; (c) any investigation, litigation, fines, penalties or proceeding
by or involving any exchange, market, execution facility, clearing organization,
regulatory or self-regulatory organization or other governmental agency, or any third
party or other market participant or counterparty with respect to User’s Account or
any Transactions; (d) TA acting on the instructions of any intermediary, third party or
agent for the User; (e) any exchange, market, execution facility, clearing
organization, regulatory or self-regulatory action, inaction or events; and (f) any and
all acts or omissions by any person obtaining access to User’s password, ID or
account number, whether or not User authorized such access.
TA shall transmit all communications to User at User’s address (including e-mail or
internet address) as provided in writing by User and all communications so
transmitted shall be deemed delivered when sent. No communication directed to TA
by User shall be effective unless TA has received and acknowledged receipt.
9. EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default (each an “Event of
(a) User fails to make a payment obligation under this Agreement when due
and such failure is not cured within one business day of User’s receipt of written
notice thereof; or
(b) User is in default under or violates or fails to perform on a timely basis
any other term, covenant, or condition of this Agreement or any other agreement with
TA or any of its affiliates (other than a payment/delivery covered in (a) above) and
such default is not cured within two business days following notice of default to
10. REMEDIES IN THE EVENT OF A DEFAULT.
If an Event of Default has occurred and is continuing, TA may, with notice and acting
in a commercially reasonable manner, exercise one or more of the following rights:
(a) treat all of User’s obligations under or in any way related to this
Agreement as immediately due and owing;
(b) cancel any outstanding Transactions or other activities or orders for
Transactions or other activities in order to close User’s Account; and
(c) take any actions which TA deems appropriate.
All the above actions may be taken without any notice of default to the User.
If an Event of Default occurs, TA shall, subject to Applicable Terms, calculate in
respect of all Transactions or other activities its total cost owed by User to TA. User
shall promptly pay to TA any such amounts due. All rights and remedies provided in
this Agreement are cumulative and not exclusive of those provided by any other
agreement, operation of law or otherwise. TA shall be under no obligation to exercise
any right or remedy. A failure by TA to exercise or a delay by TA in exercising any
rights shall not operate as a waiver. No single or partial exercise of a remedy shall
prevent further exercise of that right or remedy or the exercise of another right or
11. USER REPRESENTATIONS AND WARRANTIES.
User represents and warrants, as of the date of this Agreement and while this
Agreement remains in effect and at the time of each Transactions under this
(a) User has full right, power, capacity and authority to enter into this
Agreement and the Transactions and to perform its obligations pursuant to this
(b) this Agreement and the obligations hereunder are legal, valid and
binding on the User and enforceable against the User in accordance with the terms;
(c) if User is a corporation, trust or limited liability company, partnership
(including a limited liability partnership) or other legal entity, it is duly organized and
in good standing in the jurisdiction in which it is organized and every state or
jurisdiction in which it does business;
(d) except as disclosed in writing to TA, no person has an interest in or
control of any of its Accounts with TA and User is acting as principal and not agent;
(e) User may lawfully establish the Account and Transactions and such
Account and Transactions will not violate any Applicable Terms;
(f) the Transactions do not and will not violate User’s charter or by-laws (or
other comparable governing document) or any law, rule, regulation, judgment,
decree, order or agreement to which User is subject or bound;
(g) the information provided by User, and any further information provided
upon request, including any financial information, is true, complete and correct in all
material respects and User shall notify TA promptly of any changes to such
(h) no Event of Default has occurred with respect to User and no Event of
Default would occur as a result of its entering into or performing its obligations under
(i) User will promptly notify TA if it becomes aware of any unauthorized
use of or disclosure of its passwords, ID or account numbers to any electronic system
provided by TA;
(j) User is a sophisticated and informed investor that, acting alone or
together with its advisors, has a full understanding of all the terms, conditions,
potential losses and risks (economic and otherwise) of making investments and
trading decisions and is capable of assuming and willing to assume (financially and
otherwise) those potential losses and risks;
(k) User has consulted with its own legal, regulatory, tax, business,
investment, financial and accounting advisors to the extent it has deemed necessary,
and it has made its own investment and trading decisions (including decisions
regarding the suitability of any investment) based upon its own judgment and upon
any advice from such advisors as it has deemed necessary and not upon any advice,
statement or opinion expressed by TA;
(l) User has a full understanding of the merits and risks of each particular
investment, exchange, market, execution facility and clearing organization in which it
may invest or trade, including without limitation, the particular risks associated with
investing and trading in commodity futures; and
(m) User and its agents are solely responsible for making the decision
whether to make any investment, including the market, timing, quantity and price of
each investment and has determined that entering into or terminating such investment
is prudent and suitable in all respects.
(n) User hereby consents to receive calls at the telephone number provided
by User that are initiated by TA and its authorized representatives for any purpose
including, but not limited to, telephone solicitations, as defined by 47 U.S.C.A
§227(a)(4), placed by TA and its authorized representatives through the use of an
automatic telephone dialing system or artificial or pre-recorded voice or any other
User shall be deemed to repeat each of the foregoing representations and warranties
while this Agreement continues in effect and as of the date of each investment and
while that investment remains open. User agrees to promptly notify TA in writing if
any of the warranties and representations applicable to it contained in this Agreement
become inaccurate or in any way cease to be true, complete and correct.
12. TA’S REPRESENTATIONS AND WARRANTIES.
TA represents and warrants that it is duly organized and is authorized to enter into
this Agreement, the terms of which constitute its valid and binding obligations.
TA shall be deemed to repeat each of the foregoing representations and warranties
while this Agreement continues in effect and as of the date of each Transactions. TA
agrees to promptly notify User in writing if any of TA’s warranties and
representations contained in this Agreement become inaccurate or in any way cease
to be true, complete and correct.
This Agreement shall continue in force until written notice of termination is given by
User or TA. TA may terminate this Agreement upon written notice to User.
Termination shall not relieve User or TA of any obligations arising prior to
termination. However, upon termination of this Agreement, all amounts owed by
User to TA shall become immediately due and payable. Termination shall not affect
any rights or obligations which may have already arisen or arise thereafter as a result
of events occurring prior to termination, including but not limited to any
indemnification and payment obligations.
14. GOVERNING LAW; BINDING ARBITRATION; CLASS ACTION WAIVER
This Agreement is governed by the laws of the State of Florida without regard to
principles of conflicts of laws. User and TA agree to resolve any dispute arising from
or relating to this Agreement by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association before a
single arbitrator who shall have the exclusive authority to determine if any claim is
subject to arbitration. Any Party may commence arbitration by sending a written
demand for arbitration to the other Party(ies) and such demand shall set forth the
nature of the matter to be resolved by arbitration. In addition, depositions and
interrogatories will not be permitted or utilized in any arbitration proceeding. No
Party may recover punitive damages, lost profits, or consequential damages in any
such arbitration proceeding. The arbitrator shall enter an award without any reasoning
or explanation. The site of the arbitration proceeding shall be Orlando, Florida. The
prevailing Party shall be entitled to recover all costs and reasonable attorney’s fees
and the arbitrator shall determine the amount of such costs and reasonable attorney’s
fees. All decisions of the single arbitrator shall be final, binding, and conclusive on
all Parties. Judgment may be entered on any such award rendered by the single
arbitrator in accordance with applicable law in any court of competent jurisdiction.
User also waives any right to seek class action status regarding the dispute and
waives the right to participate in any class action or collective action if at any
time User is deemed a member of any class created by any court. User agrees to
“opt out” of any such class action.
For purposes of this Agreement “affiliate” means, in relation to any User, any entity
controlled, directly or indirectly, by the User, any entity that controls, directly or
indirectly, the User or any entity directly or indirectly under common control with the
User. Affiliate means, in relation to TA (a) all other companies owned materially or
controlled in substantial part, directly or indirectly, by TA at any time; and (b) the
successors or assigns of TA (whether by way of consolidation, amalgamation,
merger, transfer of assets or other corporate reorganization). For this purpose,
“control” of any entity or person means ownership of a majority of the voting power
of the entity or person.
Recording: The User consents, without further notice, to the recording and
monitoring by TA of all telephone conversations between TA and the User. Records
of such conversations remain the sole property of TA and may be used as evidence of
such conversations. In addition, communications by mail, electronic communications
systems, facsimile or otherwise may be monitored, recorded and retained by TA.
Entire Agreement and Modifications: This Agreement constitutes the entire
agreement between TA and User and supersedes all understandings, agreements, or
communications that are related to the subject matter of this Agreement. TA may
amend this Agreement at any time with the consent of User. No provision of this
Agreement shall be waived, altered, modified or amended unless agreed to in writing
by TA. Clauses in this Agreement are for ease of reference only and shall have no
substantive meaning. All references to “unless otherwise agreed” shall mean a written
agreement signed by TA.
No Third-Party Rights: Nothing in this Agreement, express or implied is intended
to confer any rights on any third party and no individual or entity who is not a Party
to this Agreement shall have any rights under this Agreement.
Severability and Illegality: If any provision of this Agreement becomes invalid,
illegal or unenforceable or at any time becomes inconsistent with Applicable Terms,
such inconsistent, illegal, invalid or unenforceable provision shall be superseded or
modified to conform to relevant law, rule or regulation, but in all other respects this
Agreement shall continue in full force and effect.
Cumulative Rights: The rights and remedies conferred upon the Parties shall be
cumulative, and any forbearance to take any remedial action available under this
Agreement shall not waive any right at any time or from time to time thereafter to
take such action. TA’s failure at any time to insist on strict compliance with this
Agreement or any of its terms shall not constitute a waiver by TA of any rights.
Successors and Assigns: This Agreement shall inure to the benefit of the Parties
hereto and their successors and assigns, and shall be binding upon the Parties hereto
and their executors, trustees, administrators, successors and assigns, provided,
however, that this Agreement is not assignable by User without the prior written
consent of TA. TA may assign any of its rights or obligations under this Agreement
without notice to User and User agrees to take such actions as TA may reasonably
require to effect such an assignment.
NOFT Traders is a Traders Agency owned company.