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.
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 “Products/Services”).
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 TA.
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 Default”):
(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 User).
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 remedy.
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 Agreement:
(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 Agreement;
(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 information;
(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 this Agreement;
(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 method.
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.