1. ACCEPTANCE OF TERMS.
|B.||IMPORTANT: By utilizing, receiving, or otherwise using any part of TradingXYZ's Services and/or Information (as defined in 2.A.), including, without limitation, subscribing to our Trial Subscription (as defined in 2.B.i.) or our Fee-Based Subscription (as defined in 2.B.ii.), and/or viewing any part of TradingXYZ's website or other publications or materials, now or at any time in the future, User hereby accepts and unequivocally and irrevocably agrees to be bound by this Agreement, as may be amended from time to time, and each and every term, condition, and/or provision thereof.|
2. DESCRIPTIONS OF SERVICES AND/OR INFORMATION AND OTHER DEFINITIONS.
|A.||TradingXYZ offers an expanded suite of online tools, videos, and written materials that include, generally, buy and sell trading signals, alerts, recommendations, and opinions for financial markets. TradingXYZ also uses, among other things, proprietary methods of analysis and money management and historical research programs (hereafter referred to generally, collectively and inclusively in this Agreement as the "Services and/or Information").|
TradingXYZ provides its Services and/or Information to Users through different types
|C.||Trial Subscription or Paid Subscription collectively hereafter "User Subscription".|
3. STATEMENTS OF INTENTIONS AND UNDERSTANDING.
|A.||TradingXYZ is not a brokerage, broker-dealer, financial planner, investment advisor, or commodity trading advisor, and is not in the business of providing investment advice, financial advice, or advice of any nature whatsoever. TradingXYZ does not conduct or supervise market trading of any nature. TradingXYZ is not aware of the financial condition, goals, desires or plans of any person, including without limitation User or any other subscriber, user or viewer of its services, website, or any part thereof, and none of the information provided by TradingXYZ is intended to reflect such awareness by TradingXYZ or anyone acting on its behalf as to any person or entity whatsoever, all of which is expressly disclaimed.|
|B.||Notwithstanding any other provision of this Agreement, User hereby acknowledges, understands and agrees that TradingXYZ's Services and/or Information as defined herein are intended, and are unequivocally accepted by User, for educational and entertainment purposes only, and as a material condition upon which User is granted access to any part of TradingXYZ's Services and/or Information or website, User knowingly, intelligently, and voluntarily forever waives any claims or assertions, however, made or expressed, to the contrary. User further unequivocally acknowledges, understands and agrees that no employee or agent of TradingXYZ has the power or authority to make any representation to the contrary on behalf of TradingXYZ.|
|C.||TradingXYZ does not purport to offer, disclose or divulge, nor shall TradingXYZ at any time or under any circumstances be deemed required or obligated by this Agreement or otherwise to reveal, in whole or in part, any of the methods and/or systems upon which any of its signals, recommendations, opinions, Services and/or Information, or any other part, element or component of its Services and/or Information, are based. User hereby knowingly, intelligently, voluntarily, and forever waives all claims, requests or assertions that such methods, systems, Services and/or Information, or any part thereof, be revealed and/or otherwise disclosed. Moreover, TradingXYZ does not purport to convey, sell, transfer, or offer any advice of any nature regarding any matter whatsoever, including without limitation, financial and/or investment advice.|
|D.||It is the sole and exclusive responsibility of each individual User who uses or receives any part of TradingXYZ's Services and/or Information whether, how (if at all, and subject to the restrictions set forth in this Agreement and any applicable laws, statutes, regulations, ordinances, and/or rules), and to what extent to use, act upon, or refrain from acting upon, in any manner, such Services and/or Information. User expressly unequivocally, and irrevocably acknowledges, understands and agrees that TradingXYZ does not intend for the provision of any of its Services and/or Information to constitute investment or financial advice of any nature, nor to constitute a representation or even a mere suggestion that any User or any other person or entity would or might profit, financially or otherwise, from using and/or acting upon TradingXYZ's Services and/or Information in any way or manner whatsoever, nor to constitute even a mere suggestion that any User or any other person or entity should or should not do anything or refrain from doing anything of any nature whatsoever, including without limitation based on TradingXYZ's Services and/or Information, or any part thereof. User expressly, unequivocally, and irrevocably agrees that User does not and will not receive, use, view, or otherwise avail himself/herself or any other person or entity, of any of TradingXYZ's Services and/or Information, or any part thereof, as constituting investment or financial advice of any nature, or as a suggestion that any User or any other person or entity would or might profit, financially or otherwise, from using and/or acting upon TradingXYZ's Services and/or Information in any way or manner whatsoever, or as a suggestion that any User or any other person or entity should or should not do anything or refrain from doing anything of any nature whatsoever, and User hereby knowingly, intelligently, voluntarily, and forever waives all claims and assertions to the contrary. In fact, TradingXYZ strongly suggests that User and all other persons or entities that may become privy in any manner to TradingXYZ's Services and/or Information, or any part thereof, refrain from attempting to use such Services and/or Information provided in connection therewith for any purpose whatsoever.|
|E.||Further, TradingXYZ makes no express or implied representations, warranties or guarantees of any nature whatsoever concerning its Services and/or Information, including but not limited to that such Services and/or Information will perform in accordance with any expectations of any User or any express or implied representations of any person, or are fit for any particular purpose or for any purpose at all, and User expressly, unequivocally, irrevocably and forever waives any and all such express or implied representations, warranties and guarantees, regardless of when or by whom they were made. All Users and/or any other person or entity who may become privy to TradingXYZ's Services and/or Information are expressly warned and cautioned against making any assumptions or presumptions, or drawing any conclusions whatsoever concerning such Services and/or Information, or any materials provided in connection therewith, including but not limited to that such Services and/or Information represent the use or application of logic, the use or application of any scientific methods or principles (generally accepted or otherwise), the use or application of any mathematical methods or principles, or are otherwise financially sound, logical, or supported by any scientific, mathematical, business and/or financial principles whatsoever.|
|F.||If any User or any other person or entity who may become privy to TradingXYZ's Services and/or Information takes any actions or makes any decisions based upon the disclosure of such Services and/or Information, it is against the express warning and cautions of TradingXYZ.|
|G.||If User seeks, desires or requires investment advice, User should seek the advice of a qualified investment advisor, and not rely on TradingXYZ's Services and/or Information or upon any express or implied representation of TradingXYZ or any person acting on its behalf.|
|H.||If User seeks, desires or requires financial planning, User should seek the advice of a qualified financial planner, and not rely on TradingXYZ's Services and/or Information or upon any express or implied representation of TradingXYZ or any person acting on its behalf.|
|I.||If User seeks, desires or requires the services of a Commodity Trading Advisor (hereafter "CTA"), User should seek the advice and service of a qualified and licensed CTA, and not rely on TradingXYZ's Services and/or Information or upon any express or implied representation of TradingXYZ or any person acting on its behalf.|
|J.||If User seeks, desires or requires brokerage services, User should seek the advice and service of a qualified and licensed broker, and not rely on TradingXYZ's Services and/or Information or upon any express or implied representation of TradingXYZ or any person acting on its behalf.|
|K.||This Section 3 is intended, without limitation, to constitute evidence of the respective intentions of the parties and User's understanding thereof. However, it is not an all-inclusive description of such intentions and understanding.|
4. USER’S SUBSCRIPTION OBLIGATIONS.
|A.||In consideration of User's receipt and/or use of TradingXYZ's Services and/or Information, User expressly represents that User is a natural person of legal age and with the legal capacity to form a binding contract, and is not otherwise barred from receiving TradingXYZ's Services and/or Information under the laws of the United States or other applicable jurisdictions. User agrees to: (a) provide only true, accurate, current and complete information about User as required by TradingXYZ's Trial Subscription Form or Promotional Subscription Form or Standard Subscription Form(hereafter the "Subscription Data") and (b) maintain and promptly update the Subscription Data to keep it true, accurate, current and complete at all times. If User provides any information that is untrue, inaccurate, not current, or incomplete, or TradingXYZ has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, TradingXYZ has the right to suspend and/or terminate User's Subscription and bar any and all current or future use of or access to TradingXYZ's Services and/or Information (or any portion thereof) by User or anyone acting on User's behalf. Failure to comply in all respects with the foregoing shall constitute a breach of this Agreement, which may result in immediate termination of User's Subscription and/or other actions and/or remedies as provided in this Agreement.|
|B.||User may not: (i) select or use a User ID of another person with the intent to impersonate that person; (ii) use a User ID in which another person has rights; (iii) use a User ID that TradingXYZ, in its sole discretion, deems offensive, or (iv) attempt in any manner to conceal User's true identity or to otherwise portray User as another person and/or entity. Failure to comply in all respects with the foregoing shall constitute a breach of this Agreement, which may result in immediate termination of User's Subscription and/or other actions and/or remedies as provided in this Agreement. User shall be responsible for maintaining the confidentiality of User's password.|
|C.||User shall promptly notify TradingXYZ at (xxx)xxx-xxxx of any known or suspected unauthorized use(s) of User's Subscription, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of User's password, and User expressly, unequivocally, and irrevocably agrees that TradingXYZ is not and shall not be responsible in any manner for any losses or damages of any nature sustained by User by reason thereof.|
|D.||User is solely responsible for all usage or activity on User's Subscription. User is strictly prohibited from transferring his or her Trial or Promotional or Standard Subscription to any third party. User is strictly prohibited from authorizing any third party any access whatsoever to User's User ID, Password, or User's Subscription in any manner whatsoever. Any conduct or activity by User which is illegal or prohibited under any applicable law, statute, regulation, ordinance, or rule of the United States or any states or territories thereof, or which is fraudulent or deceitful, or which constitutes a breach of this Agreement, shall, at TradingXYZ's sole discretion, constitute grounds for termination of User's Subscription, and in addition to all of TradingXYZ's other rights and remedies hereunder, TradingXYZ may, as appropriate, refer the offending conduct to law enforcement and/or other governmental agencies.|
5. TRIAL PERIOD.
|A.||Trial Periods are free, as further described herein. Trial Subscription expires after the Trial Subscriber has been sent a notification of a fifth trade signal. Trial Periods will NOT be renewed. User may NOT subscribe for more than one free Trial Period.|
|B.||User, as material consideration for TradingXYZ permitting User to subscribe for a free Trial Period Paid Subscription of TradingXYZ's Services and/or Information, and as a material inducement therefore made with the intention that TradingXYZ rely thereon, expressly and unequivocally represents and warrants that no person other than User who resides at User's home, or who is employed and/or provides services at User's place of work or business, or who shares a computer system or network with User, or who is a member of any trading group or organization of which User is a member or affiliate with, has subscribed for or received a free Trial Period of TradingXYZ's Services and/or Information within one year of the first day of User's free Trial Period or User's Paid Subscription.|
User expressly, unequivocally and irrevocably understands and agrees that:
6. SUBSCRIPTION PERIOD.
|A.||User will only be entitled to receive TradingXYZ's Services and/or Information during the period between the beginning and ending date (hereafter "Subscription Period") specified in User's Promotional Subscription Form or Standard Subscription Form. All subscriptions will NOT automatically renew. During the Subscription Period, User will be entitled to access only the Services and/or Information specified in either Subscription Form.|
7. PAYMENT TERMS, CREDIT CARD CHARGES AND CREDIT CARD FRAUD PENALTIES.
|A.||A valid credit card is the only acceptable form of payment. TradingXYZ's fees are payable in United States Dollars (including, if any, all applicable taxes). User expressly understands, acknowledges and agrees that all sales for all Services and/or Information are final and that All fees are non-refundable and non-transferable.|
|B.||User expressly understands and agrees that: For Paid Subscriptions to TradingXYZ's Services and/or Information, User agrees to pay TradingXYZ the fee (hereafter "Subscription Fee") specified in the User's Promotional Subscription Form or Standard Subscription Form in advance of the Subscription Period.|
|C.||User warrants that he or she is over 18 years of age, not subject to the Child Online Privacy Act, of legal age to enter into contractual agreements in the state in which User is present when User makes this purchase, and is the true and authorized owner of the credit card used to make this purchase. Any User who violates any of these requirements may be liable for civil or criminal prosecution and agrees to pay liquidated damages of an amount the equivalent of US$10,000 per fraudulent transaction, plus actual damages, and agrees that all information collected by TradingXYZ may be used for prosecution and may be turned over to law enforcement agencies or to credit card companies and merchant service providers.|
|D.||If the true and/or authorized owner of the credit card attempts to commit fraud upon TradingXYZ, User authorizes each and every credit card company or merchant service provider to disclose to TradingXYZ all information that could be construed as proof of credit card fraud.|
|E.||Any User who attempts to perpetrate a fraud upon TradingXYZ involving the use of a credit card herewith gives authorization for TradingXYZ to access all credit information about the User from credit reporting agencies and also authorizes TradingXYZ to discover all relevant information from any source about the fraudulent practices of the User and to reveal such information to credit reporting agencies, credit card companies, merchant service providers, and law enforcement agencies.|
|F.||User agrees that if User uses deceit to receive more than one refund, or if User causes a fraudulent dispute claim that results in a chargeback against TradingXYZ's account, that TradingXYZ is authorized to re-charge the User's credit card that was used for the original purchase to the extent that will make TradingXYZ whole. User agrees to, in addition to actual damages, pay to TradingXYZ liquidated damages of an amount equivalent to US$10,000 for every separate fraudulent action User commits.|
|A.||By User. User's Subscription may be cancelled by User by contacting TradingXYZ at (xxx)xxx-xxxx at any time and for any reason. User understands and agrees, that User, and no other party, must personally speak with a TradingXYZ representative to cancel his or her Promotional or Standard Subscription. TradingXYZ agrees to make its personnel available for this purpose on a weekly basis, Monday through Friday, excluding holidays, between the hours of 9:00 a.m. and 5:00 p.m., Eastern Standard Time. Furthermore, User agrees and understands that no emails, faxes, voice mails or written notices will constitute a valid means of cancellation of his or her Promotional or Standard Subscription. In the event that User terminates such subscription, such cancellation shall be effective at the end of the then-current Subscription Period during which such notice of cancellation as described above is received by TradingXYZ. Regardless of when notice of cancellation is received, User shall not be entitled to a refund of any portion of User's aforesaid Subscription Fee(S) for the Subscription Period(s) then in effect.|
|B.||By TradingXYZ. TradingXYZ may, in its sole discretion, cancel User's Subscription at any time and for any reason, including without limitation User's breach of this Agreement or violation of any applicable laws, statutes, regulations, ordinances, and/or rules. Such termination shall be effective immediately upon the dispatch of written, fax, or electronic notice of such termination to User. In the event that TradingXYZ terminates User's Subscription, and termination does not result from User's breach of this Agreement or violation of any applicable laws, statutes, regulations, ordinances, and/or rules, TradingXYZ shall refund to User on a pro rata basis such portion of User's then-current Subscription Fee(s) as remains unused at the time of such termination.|
|C.||User's right to use and/or utilize in any manner TradingXYZ's Services and/or Information shall terminate and expire immediately upon termination of User's Subscription, whether terminated by User or TradingXYZ.|
|A.||This Agreement is non-exclusive, and TradingXYZ may provide its Services and/or Information to any other Users, or to any other persons or entities, at its sole discretion.|
11. COVENANTS, PROMISES, REPRESENTATIONS, STIPULATIONS AND WAIVERS BY USER.
In material consideration of the provision and/or disclosure of TradingXYZ's
Services and/or Information to User by TradingXYZ, User expressly, unequivocally,
irrevocably, and with the express intention that TradingXYZ rely materially thereon
in agreeing to provide its Services and/or Information to User, makes the following
Covenants, Promises, Representations, Recitals, Stipulations and Waivers:
|B.||Notwithstanding any other provision of this Agreement, and without limiting in any way any rights, claims or bases for relief of any nature, or remedies on the part of TradingXYZ, User expressly, unequivocally and irrevocably understands and agrees that should it be determined that User has, without the express prior written authorization of TradingXYZ describing with specificity the precise extent of additional use and/or disclosure to others of any part of TradingXYZ's Services and/or Information, if any, which is authorized, (1) disclosed and/or revealed any part of TradingXYZ's Services and/or Information to any other person or entity; (2) traded for the account(s) of any person(s) or entity(ies) other than User, or otherwise revealed, shared, gave or transferred in any manner to any person(s) or entity(ies) other than User, any of the benefits, results and/or products of User's use of and/or access to TradingXYZ's Services and/or Information; (3) misrepresented, or failed to accurately represent, to TradingXYZ at the time of User's initial subscription for TradingXYZ's Services and/or Information that User intended to disclose, reveal and/or impart any part, component, result and/or product of TradingXYZ's Services and/or Information, or User's use thereof, to any other person or entity, or intended to trade for the account(s) of any person(s) or entity(ies) other than User, or intended to use or access TradingXYZ's Services and/or Information in any manner other than for User alone and for no other person and/or entity (collectively referred to hereafter as "Additional Uses"); (4) misrepresented, or failed to accurately and regularly disclose in advance and on an ongoing and continuous basis to TradingXYZ at all times subsequent to User's initial subscription for TradingXYZ's Services and/or Information , that User intended to engage in Additional Uses of TradingXYZ's Services and/or Information, or (5) actually engaged in Additional Uses of TradingXYZ's Services and/or Information, then User shall be responsible to pay TradingXYZ at TradingXYZ's then-current annual Subscription Fee for the Services and/or Information provided to User pursuant to User's Promotional Subscription Form or Standard Subscription Form (or Trial Subscription Form) for each such person and/or entity from and after the first day during which User has engaged in Additional Uses of TradingXYZ's Services and/or Information and continuing through the Subscription Period. Payment by User for ALL such Additional Uses of TradingXYZ's Services and/or Information shall be due immediately upon demand by TradingXYZ.|
|C.||User stipulates, acknowledges and agrees that none of the Services and/or Information provided to User pursuant to this Agreement is, or under any circumstances will become, the property of User, or that such Services and/or Information or any portion thereof may be assigned, disclosed or otherwise disseminated by User to any person or entity by any means whatsoever.|
|D.||User stipulates, acknowledges and agrees that all parts of the Services and/or Information to be disclosed to User pursuant to this Agreement are conveyed to User "AS IS," and without warranties, representations or guarantees by TradingXYZ of any nature, including, but not limited to, warranty of merchantability or of fitness for a particular purpose.|
|E.||User represents, stipulates, acknowledges and agrees that User understands that TradingXYZ is not a CTA, brokerage, broker-dealer, financial planner, or investment advisor, and is not in the business of providing investment advice, financial advice, or advice of any nature whatsoever, and does not conduct or supervise market trading of any nature.|
|F.||User represents, stipulates, acknowledges and agrees that User understands that this Agreement does not constitute an agreement by TradingXYZ or anyone acting on its behalf to provide, either generally or specifically, investment advice, financial advice, or advice of any nature whatsoever.|
|G.||User represents, stipulates, acknowledges and agrees that User has neither disclosed nor discussed with TradingXYZ or anyone acting on its behalf any aspect of the financial condition, goals, desires or plans of User or of any other person or entity, and that neither User nor TradingXYZ have done anything to make TradingXYZ or anyone acting on its behalf aware, even in a general manner, of the financial condition, goals, desires or plans of User or of any other person or entity.|
12. COVENANTS AND PROMISES BY TRADINGXYZ.
|A.||Subject to the full and complete performance by User of all terms and conditions of this Agreement, and in consideration of the promises, covenants, representations, and waivers of User as set forth in this Agreement, each of which is expressly and irrevocably deemed and agreed to constitute a material term of and consideration for the performance of TradingXYZ as described herein, TradingXYZ covenants and promises that TradingXYZ shall provide to User, and to no other person or entity (except as specifically agreed upon in writing by TradingXYZ), TradingXYZ's Services and/or Information as are covered by User's then-current Promotional Subscription Form or Standard Subscription Form or Trial Subscription Form.|
|A.||TradingXYZ, or its third-party designees as TradingXYZ may in its discretion elect, may provide links to other World Wide Web sites or resources. Because TradingXYZ has no control over such sites and resources, the same are provided to User solely as an accommodation, and User expressly, unequivocally, and irrevocably acknowledges and agrees that TradingXYZ is not responsible for the availability of such external sites or resources, and that TradingXYZ does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. User further expressly, unequivocally, and irrevocably acknowledges and agrees that TradingXYZ is and shall not be responsible or otherwise liable in any manner, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with User's use of and/or reliance upon any such content, goods or services available on or through any such site or resource.|
|A.||User expressly, unequivocally, and irrevocably agrees to defend, indemnify and hold harmless TradingXYZ (and its agents, employees, officers, directors, or principals) from any and all claims of every nature whatsoever which may in any way be asserted and/or made against TradingXYZ, or any agent, employee, officer, director, or principal thereof, as a result of the actions of User, or any person or entity acting on User's behalf, at his/her instruction, with his/her ratification, and/or with his/her express and/or implied authority. Any person or entity to whom User has revealed the TradingXYZ Services and/or Information, or any part, component, or result thereof, shall be conclusively deemed for purposes of this Agreement to be acting as User's agent and with User's express consent, authority and ratification. User's obligation of defense shall arise immediately upon demand therefore by TradingXYZ.|
|B.||User agrees that in the event the User causes damage, which TradingXYZ is required to pay for, the User, as a condition of viewing and/or using TradingXYZ's Services and/or Information, promises to reimburse TradingXYZ for any and all damages.|
15. MODIFICATIONS, suspension, or discontinuance of TradingXYZ's ServiceS and/or Information.
|A.||Nothing about this Agreement shall prohibit, limit, or restrict in any way the right of TradingXYZ to utilize and/or apply any presently existing or new technology which may become available so as to implement the development or provision of the Services and/or Information provided hereunder by TradingXYZ, or any other Services and/or Information , which TradingXYZ may hereinafter elect to provide, and the implementation or non-implementation of such technology shall be within the sole discretion of TradingXYZ. TradingXYZ reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, its Services and/or Information (or any part thereof) with or without notice. Except to the extent that TradingXYZ terminates User's Subscription due to no fault or breach of this Agreement by User, (in which event User expressly, unequivocally and irrevocably agrees that User shall be entitled only to a refund on a pro rata basis of such portion of User's then-current Promotional or Standard Subscription Fee as remains unused at the time of such termination, and to no other compensation, damages, or relief of any nature), User expressly, unequivocally and irrevocably agrees that TradingXYZ shall not be liable to User or to any third party for any modification, suspension or discontinuance of TradingXYZ's Services and/or Information.|
16. DISCLAIMER OF WARRANTIES.
USER EXPRESSLY, UNEQUIVOCALLY, AND IRREVOCABLY UNDERSTANDS AND AGREES AS FOLLOWS:
|A.||USER'S USE OF TRADINGXYZ'S SERVICES AND/OR INFORMATION IS AT USER'S SOLE RISK. TRADINGXYZ'S SERVICES AND/OR INFORMATION IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TRADINGXYZ AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. USER EXPRESSLY, UNEQUIVOCALLY, AND IRREVOCABLY WAIVES ALL SUCH WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND ACCEPTS TRADINGXYZ'S SERVICES AND/OR INFORMATION SUBJECT TO ALL DISCLAIMERS BY TRADINGXYZ CONTAINED IN THIS AGREEMENT, AND CONTAINED IN TRADINGXYZ'S DISCLAIMERS DOCUMENT.|
|B.||TRADINGXYZ AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, PRINCIPALS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICES AND/OR INFORMATION WILL MEET USER'S REQUIREMENTS; (ii) THE SERVICES AND/OR INFORMATION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES AND/OR INFORMATION WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH TRADINGXYZ WILL MEET USER'S EXPECTATIONS; AND (v) ANY ERRORS IN ANY SOFTWARE WILL BE CORRECTED TO USER'S SATISFACTION, OR AT ALL. USER EXPRESSLY, UNEQUIVOCALLY, AND IRREVOCABLY WAIVES ALL SUCH WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND ACCEPTS TRADINGXYZ'S SERVICES AND/OR INFORMATION SUBJECT TO ALL DISCLAIMERS BY TRADINGXYZ CONTAINED IN THIS AGREEMENT, AND CONTAINED IN TRADINGXYZ'S DISCLAIMERS DOCUMENT.|
|C.||ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES AND/OR INFORMATION IS ACCESSED AT USER'S OWN DISCRETION AND RISK, WHICH SUCH RISK IS EXPRESSLY, UNEQUIVOCALLY, IRREVOCABLY, KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ASSUMED BY USER, AND USER IS AND SHALL REMAIN SOLELY RESPONSIBLE FOR ALL DAMAGES SUSTAINED, OR CLAIMED TO HAVE BEEN SUSTAINED, BY USER ARISING IN ANY MANNER FROM TRADINGXYZ'S SERVICES AND/OR INFORMATION (INCLUDING WITHOUT LIMITATION ANY DAMAGE TO USER'S COMPUTER SYSTEM AND/OR SOFTWARE AND/OR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF ANY SUCH MATERIAL).|
|D.||NO ADVICE OR INFORMATION, WHETHER ORAL, OR DIGITAL, OR WRITTEN, OBTAINED BY USER FROM TRADINGXYZ OR BY OR THROUGH ITS SERVICES AND/OR INFORMATION SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.|
17. LIMITATION OF LIABILITY.
USER EXPRESSLY, UNEQUIVOCALLY, AND IRREVOCABLY UNDERSTANDS AND AGREES AS FOLLOWS:
|A.||THAT TRADINGXYZ AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, PRINCIPALS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO USER UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FROM TRADING LOSSES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TRADINGXYZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE TRADINGXYZ'S SERVICES AND/OR INFORMATION, OR ANY PART OR COMPONENT THEREOF; (B) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES AND/OR GOODS RESULTING FROM THE FAILURE OF ANY PART OR COMPONENT OF TRADINGXYZ'S SERVICES AND/OR INFORMATION (INCLUDING WITHOUT LIMITATION THE CREATION, DEVELOPMENT, PRESENTATION AND/OR TRANSMISSION THEREOF); (C) ANY TRADES EXECUTED OR NOT EXECUTED, OR TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO, BY USER AS A RESULT, IN WHOLE OR IN PART, OF USER'S RELIANCE UPON TRADINGXYZ'S SERVICES AND/OR INFORMATION, OR ANY PART OR COMPONENT THEREOF; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER SUBSCRIBER OR USER OF TRADINGXYZ; AND/OR (F) ANY OTHER MATTER RELATING TO TRADINGXYZ'S SERVICES AND/OR INFORMATION OF ANY NATURE. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, USER EXPRESSLY, UNEQUIVOCALLY AND IRREVOCABLY AGREES THAT IN NO EVENT SHALL TRADINGXYZ BE DEEMED LIABLE FOR DAMAGES IN EXCESS OF THE SUBSCRIPTION FEES PAID BY USER DURING USER'S THEN-CURRENT SUBSCRIPTION PERIOD.|
|B.||USER AGREES TO ACCEPT FULL, COMPLETE, AND SOLE RESPONSIBILITY FOR ANY AND ALL TRADING RESULTS. USER WILL NOT HOLD TRADINGXYZ RESPONSIBLE FOR ANY OF USER'S TRADING LOSSES AND/OR RESULTS IN ANY MANNER WHATSOEVER. USER'S ATTEMPT TO DUPLICATE TRADINGXYZ'S ENTRY AND/OR EXIT SIGNALS MAY BE HINDERED BY THE FOLLOWING: (I) INHERENT DELAY IN RECEIVING ELECTRONIC SIGNALS AND EXECUTING UPON THOSE SIGNALS, (II) MARKET LIQUIDITY, (III) SLIPPAGE, (IV) COMMISSIONS, (V) TRADING SOFTWARE/INTERNET OUTAGES, ETC. AND, (VI) A STOP LOSS MAY NOT LIMIT USER'S LOSS TO THE AMOUNT INTENDED.|
|C.||TRADINGXYZ SHALL NOT BE LIABLE TO USER OR TO ANY OTHER PERSON OR ENTITY FOR ERRORS IN TRANSMISSION OF ITS SERVICES AND/OR INFORMATION, OR FOR USER'S NON-RECEIPT OF SUCH SERVICES AND/OR INFORMATION, OR ANY PART OR COMPONENT THEREOF, FOR ANY REASON WHATSOEVER. TRADINGXYZ DISCLAIMS ALL LIABILITY OF ANY NATURE TO USER, OTHER THAN A REFUND OF ANY UNUSED PORTION OF USER'S SUBSCRIPTION FEE, AS APPLICABLE AND TO THE LIMITED EXTENT AS DESCRIBED IN SECTION 8, "CANCELLATION," OF THIS AGREEMENT, AND USER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ACCEPTS SUCH DISCLAIMER AND WAIVER OF LIABILITY IN ALL RESPECTS. FURTHER, USER SHALL, AND HEREBY DOES, INDIVIDUALLY AND ON BEHALF OF USER, HIS OR HER DESCENDANTS, ANCESTORS, DEPENDENTS, HEIRS, EXECUTORS, ADMINISTRATORS, ASSIGNS, SUCCESSORS, ATTORNEYS, AND BUSINESS ENTITIES AND THEIR OFFICERS, DIRECTORS, PRINCIPALS AND SHAREHOLDERS, KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY FULLY RELEASE AND FOREVER DISCHARGE TRADINGXYZ, AND ITS OFFICERS, DIRECTORS, AGENTS, MEMBERS, PRINCIPALS, ADMINISTRATORS, ASSIGNS, SUCCESSORS, ATTORNEYS, EMPLOYEES, AND BUSINESS ENTITIES (AND THEIR OFFICERS, DIRECTORS, PRINCIPALS AND SHAREHOLDERS), FROM ANY AND ALL MANNER OF ACTION OR ACTIONS, CAUSE OR CAUSES OF ACTION IN LAW OR IN EQUITY OR OTHERWISE, SUITS, DEBTS, LIENS, CONTRACTS, AGREEMENTS, PROMISES, LIABILITIES, CLAIMS, DAMAGES, DEMANDS, LOSSES, OBLIGATIONS, COSTS OR EXPENSES OF ANY NATURE WHATSOEVER, KNOWN OR UNKNOWN, FIXED OR CONTINGENT, WHICH NOW EXIST OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH THIS AGREEMENT, OR THROUGH USER'S USE OR APPLICATION OF TRADINGXYZ'S SERVICES AND/OR INFORMATION OR OTHERWISE.|
18. GOVERNING LAW AND ELECTION OF VENUE.
The parties each expressly, unequivocally and irrevocably agree that this Agreement
is to be construed and interpreted according to the laws of the State of Nevada,
without regard to principles of conflicts of laws, and that venue in all actions
and/or proceedings arising out of or in any way related to this Agreement shall
be exclusively within the County of Clark, State of Nevada.
If any matter concerning TradingXYZ's Services and/or Information, shall be brought before a court of law, pre- or post-arbitration, this Agreement shall be governed by and construed in accordance with Nevada law, without regard to that state's choice of law rules. User agrees that use of the site constitutes activity in Nevada and for the purpose of litigating any dispute arising under this Agreement, User agrees that any action commenced against TradingXYZ shall be commenced and maintained solely in a federal or state court of competent subject matter jurisdiction within the jurisdiction of the U.S. District Court for the Clark County of Nevada, Las Vegas Division. User also agrees to submit and consent to the personal jurisdiction and venue of any such court in the event TradingXYZ commences an action against User.
19. OWNERSHIP OF WEBSITE OR RIGHT TO USE, SELL, PUBLISH CONTENTS OF THIS WEBSITE.
|A.||The website and its contents and/or Services and/or Information including but not limited to images, are owned or licensed by TradingXYZ. Material contained on the website must be presumed to be proprietary, trademarked, and copyrighted. Users have no rights whatsoever in the site content. Use of website content for any reason is unlawful unless it is done with express contract or permission of TradingXYZ.|
20. HYPERLINKING TO SITE, CO-BRANDING, "FRAMING" AND REFERENCING SITE PROHIBITED.
|A.||Unless expressly authorized by TradingXYZ, no one may hyperlink this site, or portions thereof, (including, but not limited to, logotypes, trademarks, branding or copyrighted material) to their website for any reason. Further, User is not allowed to reference the URL and/or IP address of this website in any commercial or non-commercial media without the expressed permission of TradingXYZ, nor User is allowed to 'frame' the site without the expressed permission of TradingXYZ. User specifically agrees to cooperate with TradingXYZ to remove or de-activate any such activities and be liable for all damages. User hereby agrees to liquidated damages of US$100,000.00 plus costs and actual damages for violating this provision.|
|B.||User agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the TradingXYZ web site. User agrees not to take any action that imposes an unreasonable or disproportionately large load on TradingXYZ's infrastructure.|
|A.||No Presumption Against Draftsman. This Agreement is to be construed and interpreted without regard to the identity of the party drafting it.|
|C.||Entire Agreement; Integration. All agreements, covenants, representations and warranties, express and implied, oral, digital, or written, of the parties to this Agreement concerning its subject matter are contained herein. No other agreements, covenants, representations or warranties, express or implied, oral, digital, or written, have been made by any party to any other party, nor relied upon by any party, concerning the subject matter of this Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties concerning the subject matter of this Agreement are merged herein. This is an integrated Agreement.|
|D.||Waiver. No failure by TradingXYZ to assert, object to, or act upon any violation, breach or failure of performance of this Agreement by User shall constitute a waiver of any right whatsoever by TradingXYZ, either with respect to such breach or failure of performance, or to any subsequent breach or failure of performance.|
|E.||Agreement Binding Upon Agents. The parties understand and agree that the agreements, undertakings, acts and other things done or to be done by each party in this Agreement shall run and, inure to the benefit of, and be binding upon, their respective agents, attorneys, servants, employees, independent contractors, representatives, heirs, assigns and successors.|
|F.||No Reliance By User. User stipulates, acknowledges and agrees that he or she has relied solely upon his or her own judgment, belief and knowledge in entering into this Agreement. User further represents, stipulates, acknowledges and agrees that, in entering into this Agreement, he or she has not been influenced by any representations or statements concerning any matters made by TradingXYZ or any other person, and freely enters into this Agreement.|
|G.||Attorneys Fees and Costs. If any action at law or equity, including an action for declaratory or injunctive relief, is brought to enforce, interpret or construe the provisions of this Agreement or any agreements or instruments contemplated thereunder, the prevailing party shall be entitled to recover its actual attorneys' fees and costs (without application of any schedule of attorneys fees) reasonably incurred, which may be determined by the Court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.|
|H.||Confidentiality. Except as otherwise provided herein or as required by law, User shall at all times keep the terms of this Agreement confidential, except as is necessary to carry out effectively the terms of this Agreement.|
|A.||User herewith agrees to receive Notice of Changes, Litigation, Service of Process, Cancellation, Termination, and Modification of the Subscription and/or Services and/or Information, at the email address provided to TradingXYZ on the Trial Subscription Form, or Promotional Subscription Form, or Standard Subscription Form. Further, User agrees that the right to contact User concerning legal notice shall not be terminated by previously submitted 'unsubscribed' notices and specifically agrees that any notification to cease contact shall not be binding upon TradingXYZ in regards to Notice of Change, Litigation, Service of Process, Cancellation of Subscription and/or Services and/or Information, Termination of the Subscription and/or Services and/or Information or website, or Modification of the terms of the Subscription and/or Services and/or Information. Additionally, the User grants TradingXYZ irrevocable right to contact him or her via mail or telephone concerning any of these issues irrespective of other rights the User has to sever contact with TradingXYZ.|
|B.||Arbitration shall be conducted pursuant to the rules of the American Arbitration Association which are in effect on the date a dispute is submitted to the American Arbitration Association. Information about the American Arbitration Association, its rules, and its forms are available from the American Arbitration Association, The Paramount Building 1633 Broadway, 10th Floor (Between 50th and 51st Streets) New York, NY 10019. Hearing will take place in the city or county of TradingXYZ's choice.|
|C.||In no case shall the User have the right to go to court or have a jury trial. User will not have the right to engage in pre-trial discovery except as provided in the rules. User will not have the right to participate as a representative or member of any class of claimants pertaining to any claim subject to arbitration. The arbitrator's decision will be final and binding with limited rights of appeal.|
|D.||The prevailing party shall be reimbursed by the other party for any and all costs associated with the dispute arbitration, including attorney fees, collection fees, investigation fees, and travel expenses.|
24. FINAL ACCEPTANCE
25. TRADINGXYZ'S CONTACT INFORMATION
PO BOX 3123
TEANECK, NJ 07666
Last updated 03/24/2010