OVERCHARTS TERMS OF SERVICE AGREEMENT
THIS TERMS OF SERVICE AGREEMENT (“Agreement”) is made between Tradersoft S.r.l. (“Company”) and any person (“User”) who installs the Overcharts Trading Platform (“Platform”) and/or purchasing/subscribing to any of the available Overcharts licenses/subscriptions.
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF THE PLATFORM, USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED AND COMPANY SHALL PROMPTLY CANCEL THIS TRANSACTION AND USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE PLATFORM. THIS AGREEMENT IS APPLICABLE FOR ALL RELEASED VERSIONS OF THE PLATFORM INCLUDING, BUT NOT LIMITED TO BETA VERSIONS. THIS AGREEMENT MAY BE AMENDED FROM TIME-TO-TIME AT THE SOLE DISCRETION OF COMPANY. COMPANY SHALL PROVIDE NOTICE TO USER OF AMENDMENTS BY POSTING THE UPDATED TERMS OF SERVICE ON COMPANY’S WEBSITE. USER SHALL HAVE THE OPPORTUNITY TO REFUSE SAID AMENDMENTS SOLELY BY REQUESTING TERMINATION OF ACCESS TO THE PLATFORM.
a. Ownership and Intellectual Property Rights.
The Platform is the intellectual property of and is owned by Company. It is protected by intellectual property laws and international intellectual property treaties. The Platform is licensed to User, not sold.
The Platform is a software for professional technical analysis and financial markets trading. Communication with data providers and brokers is executed through the application programming interface (API).
c. Order Execution.
Orders generated in the Platform are communicated to a selected broker (“Broker”) via application programming interface and are executed by this Broker. Trade placement and execution may be delayed or fail due to, without limitation, market volatility, data delays, system and software errors, Internet traffic and otherwise. Company does not bear responsibility for order execution by Broker. User accepts any and all risks associated with order generation, transmission and execution.
d. Use of Third Party Vendors.
Studies, data plug-ins and broker plug-ins may be developed by third-party data providers, brokers and/or software developers (collectively “Third-Party Vendors”).
COMPANY GIVES NO WARRANTIES WHATSOEVER IN REGARD TO THIRD-PARTY VENDOR SOFTWARE AND/OR SERVICES.
e. Accessibility and Function.
User agrees that from time to time, the Platform may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment (hardware) malfunctions, (ii) software malfunctions, (iii) periodic maintenance procedures or repairs which Company may undertake from time to time, or (iv) causes beyond the reasonable control of Company or which causes are not reasonably foreseeable by Company.
It is the sole responsibility of User to ensure and maintain compatibility of the Platform with all hardware, software and other equipment as well as to meet all prerequisites necessary to use the Platform, including, but not limited to, telecommunications, Internet connection, web browsers and/or other equipment, software and services necessary to access and use the Platform.
g. Grant of License.
Company grants User, in accordance with the terms and conditions stipulated in this Agreement, one (1) nonexclusive and nontransferable license to use the Platform on one or more computers in a non-simultaneous manner.
2. User System Security.
Security, privacy and integrity of all content that user receives, transmits or stores with the help of the Platform or any equipment related to the use of the Platform is the sole responsibility of User. Any access, authorized or otherwise, to User’s account by any person, entity or otherwise is the sole responsibility of User.
3. Fees and Licenses.
a. Fees and taxes.
All fees, taxes and other charges shall be paid by User. Should User obtain a license to use Software through a third-party reseller (“Reseller”), the relevant fees shall be payable to Reseller. It is the sole responsibility of User to pay Company, Reseller or a payment processing company (“Payment Processor”) all applicable taxes, duties, or levies of any kind, including, but not limited to, sales, use, value-added and personal property taxes (collectively “Taxes”) imposed now or hereinafter by any governmental authority. Should User fail to pay any amount due according to Agreement, Company may, at its sole discretion, immediately suspend or terminate this Agreement and User’s access to the Platform.
b. Subscription-based Licenses.
This Agreement shall take effect upon subscribing and/or initiating access, installation or any other use of the Platform by User. If the auto-renewal is active, the subscription shall automatically renew in accordance with the periodicity selected at the time of subscription commencement. Should User decide to terminate the subscription, he/she must submit a cancellation request via Payment Processor at least one (1) day prior to the commencement of the next billing cycle. The subscription cancellation request must comply with the termination procedures set forth in Section 6 of this Agreement. If a subscription cancellation request is submitted before the end of the current billing cycle, NO partial or full refund shall be issued to User by Company. The User can withdraw from the Contract within 14 days from the date of subscription and receive a partial refund of paid amount. Management fees and commissions incurred by the Company for the Contract will be retained.
c. Lifetime Licenses.
Payments for lifetime licenses do not automatically renew. User holding a lifetime Platform license agrees that any features of Software may not be available or supported in perpetuity. User agrees that Company shall have the right to modify the Platform features at Company’s sole discretion and that Company may choose to discontinue supporting the Platform at any time. Under no circumstances shall User be entitled to a refund of fees paid for a lifetime license. Lifetime license is for non-concurrent use; it is non-transferable and can only be used by User who purchased the license. User cannot sell or barter a lifetime license; in the event this condition is violated, Company reserves the right to terminate the license at its own discretion.
“Minor Upgrade” refers to a change in the Platform that represents a minor improvement of Platform functionality (“Minor Version”). “Major Upgrade” refers to a change in the Platform that represents a significant improvement in the Platform functionality (“Major Version”). The division into Major and Minor Versions is reflected in numbers assigned to Platform versions. For example, if the version is 6.1, the Major Version is 6 and the Minor Version is 1.
During the term of a lifetime license, User shall be entitled to Minor Upgrades (but not to Major Upgrades) of Platform. Upgrades shall be provided at the sole discretion of Company.
During the term of a subscription-based license, User shall be entitled to Minor and Major upgrades.
4. User Representations.
User represents and warrants to Company that: (a) User is over the age of eighteen (18) and has the power and authority to enter into and perform User’s obligations under this Agreement, (b) all information provided by User to Company is truthful, accurate and complete, (c) User is the authorized signatory of the credit or charge card provided to Company to pay the Fees, (d) User shall comply with all terms and conditions of this Agreement including, without limitation, the provisions set forth in section 5, (e) User, and not the Company, is solely responsible for the security and use of User’s
password, (f) User has provided and shall provide accurate and complete registration information including, without limitation, User’s legal name, address and telephone number, (g) User acknowledges that all right, title, and interest to the Platform belongs to Company. Company reserves all rights not expressly granted to User in this Agreement and that the User may not sublicense, transfer, or assign the Platform, directly or indirectly, to any person, entity, partnership, organization, association or otherwise, for any reason.
5. Prohibited Uses.
a. Errors, Acts, Omissions and Unacceptable Use.
User is solely responsible for any and all errors, acts and omissions that occur under User’s account or password, and User, directly or indirectly, agrees not to engage in, facilitate, or encourage any unacceptable use of the Platform which unacceptable use includes, without limitation, use of the Platform to: (i) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial e-mail, (ii) disseminate or transmit material that, to a reasonable person may be considered abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious, (iii) disseminate, store or transmit files, graphics, software or other material that actually, impliedly, or potentially infringes the copyright, trademark, patent, trade secret, trade name or other intellectual property right of any person, entity, partnership, organization, association or otherwise, (iv) create a false identity or to otherwise attempt to mislead any person, entity, partnership, organization, association or otherwise, as to the identity or origin of any communication, (v) distribute, re-distribute or permit transfer of content in violation of any export or import law and/or regulation or restriction of the European Union and/or the United States of America and their agencies or authorities, or without all required approvals, licenses or exemptions, (vi) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Platform or any other computer network, (vii) disseminate, store or transmit viruses or any other malicious code or program, (viii) develop an interface between Platform to Broker APIs without the express written consent from the Company, or (ix) engage in any other activity deemed by the Company, in its sole discretion, to be in conflict with the spirit or intent of this Agreement.
User may not disseminate software, username(s) and/or password(s) to any other person, entity, partnership, organization, association or otherwise. Internet Protocol (“IP”) addresses and/or computer ids may be recorded by the Platform to prevent account misuse.
This Agreement takes effect upon User’s acceptance thereof and shall continue until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior written notice to Company. Company reserves the right at its sole discretion and without prior notice to User, at any time and for any reason, to: (a) suspend, disable or remove access to all or any portion of the Platform, (b) terminate this Agreement. Agreement shall be terminated if User violates any terms thereof. Upon the termination of Agreement, User must remove and/or destroy all copies and/or parts of the Platform.
7. Disclaimer of Warranties.
THE PLATFORM IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE PLATFORM IS AT USER’S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE PLATFORM. USER REALIZES THAT THERE IS RISK IN TRADING STOCKS AND THAT ASSETS MAY BE LOST AND ARE NOT INSURED. COMPANY IS ABSOLUTELY NOT RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR USERS’ STOCK ORDER, PURCHASE AND SALE ACTIONS. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE PLATFORM. COMPANY MAKES ABSOLUTELY NO WARRANTIES WITH REFERENCE TO THIRD PARTY VENDOR/BROKER SOFTWARE AND/OR SERVICES.
8. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL COMPANY, DIRECTLY OR INDIRECTLY, BE LIABLE TO USER OR ANY OTHER PERSON, ENTITY, PARTNERSHIP, ORGANIZATION, ASSOCIATION OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE PLATFORM OR THE INTERNET IN GENERAL, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE PLATFORM, ANY CHANGES TO OR INACCESSIBILITY OF THE PLATFORM, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE PLATFORM, ANY DATA LOSS, OR ANY DATA OR MATERIAL FROM A THIRD PARTY ACCESSED ON OR THROUGH THE PLATFORM, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR ANY DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE PLATFORM, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE PLATFORM AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6. COMPANY IS NOT LIABLE FOR ANY ITEMS VIEWED OR TRANSMITTED VIA THE PLATFORM. COMPANY IS NOT LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY ACTS TAKING PLACE WHICH ARE NOT VIEWED OR TRANSMITTED VIA THE PLATFORM. COMPANY IS NOT OBLIGATED, DIRECTLY OR INDIRECTLY, TO TAKE ANY STEPS TO PREVENT OR CORRECT ANY ILLEGAL, ABUSIVE OR OTHERWISE INAPPROPRIATE ACTIVITY PERFORMED BY USER, NOR IS COMPANY OBLIGATED, DIRECTLY OR INDIRECTLY, TO ARCHIVE OR OTHERWISE MAINTAIN OTHER REPRODUCTION OF THE CONTENT THAT APPEARS OR IS TRANSMITTED ON THE PLATFORM FOR FUTURE REFERENCE. COMPANY IS NOT LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY ACTION OR INACTION WITH RESPECT TO ANY CONTENT ON THE PLATFORM. COMPANY IS NOT RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR COMPLIANCE OR LACK THEREOF BY ANY BROKER(S) WITH RESPECT TO ANY APPLICABLE LAWS AND REGULATIONS INCLUDING, BUT NOT LIMITED TO, THOSE LAWS REGARDING OR PERTAINING TO THE TRADING OF SECURITIES. COMPANY MAKES SIGNIFICANT EFFORTS MEETING OR EXCEEDING INDUSTRY STANDARDS TO INSURE THE SECURITY AND/OR FUNCTIONALITY OF PLATFORM RELATED INTERNET TRANSMISSIONS BUT, DUE TO THE INHERENT NATURE OF THE INTERNET, CANNOT GUARANTEE OR WARRANT FUNCTIONALITY AND/OR SECURITY OF INTERNET TRANSMISSIONS.
User agrees to indemnify, hold harmless and defend Company, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, entity, partnership, organization, association or otherwise, arising out of or relating to: (a) this Agreement, (b) User’s use of the Platform, including any data or work transmitted or received by User, and (c) any unacceptable use of the Platform, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable in section 5.
When reasonably practicable, Company shall attempt to respect and maintain User’s privacy. Company shall not monitor, edit, or disclose any personal information about User or User’s account, including its contents or User’s use of the Platform, without User’s prior written consent unless Company has a good faith belief that such action is necessary to: (i) comply with any legal process or other legal requirements of any governmental authority, (ii) protect and defend the rights, interests, or property of Company, (iii) enforce this Agreement, (iv) protect the interests of users of the Platform other than User or any other person, entity, partnership, organization, association or otherwise, or (v) operate or conduct maintenance and repair of Company’s services or equipment, including the Platform as authorized by law. User has no expectation of privacy with respect to the Internet in general. User’s IP address and computer GUID where the Platform is installed is transmitted and recorded with each User session.
b. Use of Aggregate Information.
Company may, at its sole discretion, share aggregate information (e.g. number of website visits, demographic breakdown, etc.) to third parties by combining aspects of personal information into an anonymous pool.
c. Security of Personal Information.
Information security is of the utmost importance to Company, however, no transmission of data over the Internet is guaranteed to be completely secure. Company shall not guarantee or warrant the security of any personal information transmitted to or from it. Any such transmission is made solely at User’s risk.
Company’s Platform website may contain links to other Internet websites. These websites are not under the control of Company and Company does not control linked websites’ privacy and/or user agreements. Company does not grant any warranties (express or implied) nor does Company have any liability for information transferred and conferred to or from linked websites.
Company may gain access to customers account/trading records for auditing purposes. The Platform may record trade execution data for the purpose of audit tracking.
Company shall have the right, at any time and without prior written notice to or consent from User, to add to or modify the terms of this Agreement, simply by updating the Company’s website or by requiring the User to accept an updated Agreement upon installing and using the Platform. User’s access to or use of the Platform after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.
No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
If any provision of this Agreement is determined to be illegal or unenforceable, then such provision shall be enforced to the maximum extent possible and the other provisions shall remain fully effective and enforceable.
All notices shall be in writing and shall be deemed to be delivered when sent by firstclass mail or when sent by facsimile or e-mail to either parties’ last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by e-mail. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
e. Governing Law.
This Agreement is made in and shall be governed by the laws of Italy without reference to any conflicts of laws.
f. Dispute Resolution.
Any and all disputes relating to or arising out of this Agreement including, but not limited to, the arbitrability and the validity of this Agreement shall be resolved by binding arbitration in Padova, Italy.
g. Force Majeure.
If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by causes beyond the reasonable control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
The terms and provisions of sections 2, 3, 4, 5, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement.
i. Entire Agreement.
This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Platform and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Platform.
USER HAS READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Last Update: 2019-12-05