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Effective as of Jun 30th 2021
PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY BECAUSE IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. AMONG OTHER TERMS, IT LIMITS OUR LIABILITY TO YOU, PROHIBITS CLASS ACTION CLAIMS AGAINST US AND CONTAINS OTHER DISPUTE RESOLUTION PROCEDURES. IF YOU DO NOT AGREE, DO NOT USE OUR SERVICES.
(a) This Terms of Service Agreement (“Agreement”) is entered into between Tradewith Co., a Delaware corporation (“Tradewith”) and you. This Agreement applies to your access and use of any of our products or services (each and together, the “Services”), including your access to and through our website (the “Site”) and any mobile device applications we provide (each and together, the “Tradewith App”). This Agreement is effective upon the earliest date of when you access or use the Services, the Site, any Tradewith App or if you otherwise confirm or accept the Agreement electronically.
(b) The terms “we”, “us” or “our” refers to Tradewith. The terms “you” and “your” refers to you, the person accessing or using our Services, including the Site and any Tradewith App, and any other person that has access to your Tradewith account, and your heirs, successors and assigns. Unless otherwise expressly stated, nothing in this Agreement confers any third party rights or benefits. The term “User” means a person accessing or using the Services, which includes you and other non-Tradewith parties. Additional terms are defined elsewhere in this Agreement.
(c) Some Services may have additional terms that apply and those terms may be set forth elsewhere. If those terms are part of an additional agreement between you and us, the terms of those additional agreements shall control if there is a conflict with the terms in this Agreement. None of our personnel or any third party providers are authorized to give you verbal or written information that contradicts this Agreement or any other agreement you enter into with us.
(d) In Tradewith’s sole discretion, we may change this Agreement and any policies or agreements that are incorporated as part of this Agreement, at any time, and the changes shall be effective immediately upon posting to the Site. Your continued use of the Services after the changes have been made is your acceptance to this Agreement as changed.
TRADEWITH RESERVES THE RIGHT TO LIMIT, ADD OR CHANGE, AT ANY TIME, ANY ASPECT OF OUR SERVICES, INCLUDING THE SITE, ANY TRADEWITH APP AND THE TERMS OF AGREEMENTS.
(a) Subject to the terms in this Agreement, the Services allow you and others to share Content about investing and investments. You agree, however, that you will not share Content from Paid Services, including Content obtained from subscriptions with Publishers. You must be eighteen (18) years or older to use the Services.
(b) The Content is not, and is not intended to be, tailored to any specific person or individual circumstances. Tradewith is not acting or registered as an investment adviser, broker-dealer, tax adviser or any other licensed or regulated provider of investment, tax or accounting related services or to provide legal advice. There are no promises, guarantees, representations or warranties suggesting that the use of the Services, including the Content, will benefit you.
Users, including any Publishers, are not required by Tradewith to be registered or licensed as investment advisers, broker-dealers or otherwise regulated to be providers of investment services, instruments or products. In using the Services, you will not take any actions that require you to be a licensed or regulated provider of investment services, securities or other investment instruments or products; and you will not have any expectation that any other User, including any Publisher, is a licensed or regulated provider of services, instruments or products.
You acknowledge that Tradewith makes available Investment Considerations [link] which are hereby incorporated into this Agreement. The Investment Considerations include risk disclosures and other information about making investments in securities and other products which may be discussed in the Content.
(c) Tradewith grants you a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to use the Services, including the Content solely for your personal internal use. You shall not sell, license, rent, share or otherwise use or exploit any of the Services, including the Content, for commercial use or in any way that violates any of Tradewith’s rights or the rights of any third party. Use, reproduction, modification, distribution or storage of any Content other than for the purpose of using the Services in accordance with this Agreement is prohibited.
(d) You shall comply with all applicable local, state, national and international laws, rules and regulations (each and together, “applicable law”). You shall not conduct any illegal activity and you shall not promote, encourage or facilitate illegal activity. Without limiting the foregoing, you also shall adhere to the Rules of Conduct [link] , which are hereby incorporated into this Agreement.
(e) Publishers are those Users who also seek to receive payments for certain of the Content they submit. Publishers may be persons whose business is providing information for a fee and who may also separately offer subscriptions for regularly published investment advice (e.g., newsletters); do it yourself investors; or any other persons who would like to try to receive payment for submitting certain Content on Tradewith. Tradewith acts as a Publisher. If you seek to act as a Publisher, you agree to additional terms set forth in the Publishers’ Agreement, [link] which are hereby incorporated into this Agreement.
(f) Tradewith may make investment tools and analysis available, including its proprietary tools, such as the personal portfolio benchmarking tool that provides technical analysis. Tradewith’s tools and analysis may also provide proprietary rankings of Publishers’ ideas and investments, such as to prepare a leaderboard and a Top-Ranked Bundle subscription that is derived from, though not the same as the leaderboard rankings. Your use of any tools and analysis Tradewith makes available in the Services is subject to the Investment Tools Disclosures [link] which are hereby incorporated into this Agreement. The Investment Tools Disclosures describe certain limitations and risks of investment tools and analysis.
(g) From time to time, all or part of the Services, including the Site and any Tradewith App, may be inaccessible, inoperable or unavailable for any reason. Tradewith has no obligation to make the Services accessible, operable and available on a continuous or uninterrupted basis. You are not relying on the accessibility, operability or availability of the Services for any purpose.
(h) No government authority or regulatory body reviews, approves or monitors the Services, including the Content. Tradewith does not undertake any obligation to review, approve or monitor any other parties’ actions, including your or their use of the Services or the Content.
(i) You are solely responsible for your decisions and actions, including determining whether to use the Services, follow any other User for Content, subscribe to any Publisher or take any action based on the Content. Tradewith, for itself and its affiliates and each of our and their respective officers, directors, employees, agents and third party providers, does not make warranties and we limit our liability for any and all Losses from your use of the Services, including the Content, following other Users and any decision to subscribe to one or more Publishers, including Losses from any sales or purchases of subscriptions, investments or any other product or service. See below, No Warranties and Disclaimer of Liability.
(j) You acknowledge that, notwithstanding the Investment Considerations, the Investment Tools Disclosures or any additional disclosures or information provided through the Services, you are not relying on Tradewith for disclosures or other information that relates to your use of the Services or investment related decisions. You further acknowledge that there are many additional important considerations and actions you are required to undertake with respect to your investment related decisions. You are solely responsible for determining your actions and inactions, including whether to use the Services, whether the Content is something you follow or act upon, whether any investment, transaction or other action is appropriate for you and your circumstances, and whether you can afford the loss of your money or other assets if, in your sole discretion, you choose to take any action or not to act with respect to investing or investments.
(a) Tradewith’s Services, including the Site and any Tradewith App are available only to persons who can form legally binding contracts under applicable law. By using Tradewith’s Services, including the Site and any Tradewith App, you represent and warrant that you: are at least eighteen (18) years of age; not impersonating any other person; and otherwise are able to form legally binding contracts for the Services under applicable law.
The term “person” in this Agreement and as used elsewhere in the Services, means any individual (also referred to as a “natural person”), corporation, limited liability company, partnership or other entity, association or trust.
If you are entering into this Agreement on behalf of a non-natural person, you represent and warrant that you have the legal authority to bind such person to this Agreement, in which case the terms “you” and “your” refers to such person. If you do not have legal authority to bind the person, you will be personally responsible for the obligations contained in this Agreement, including the payment obligations.
You further represent and warrant to Tradewith that you are entering into this Agreement for yourself and not for the benefit of any third party; you are not a competitor of Tradewith and you are not accessing or using the Services for any benchmarking or competitive purposes.
Tradewith shall not be liable for any Losses resulting from our reliance on any instruction, notice, document or communication reasonably believed by us to be genuine and originating from an authorized representative (for non-natural persons). Tradewith reserves the right, but undertakes no duty, to require additional authentication from you.
(b) You are bound by this Agreement for your use of the Services, the Site and any Tradewith App, for transactions entered into by you, for anyone acting as your agent or in concert with you and anyone who uses your Account, whether or not authorized by you.
(c) Without limiting any other rights and remedies available to us, Tradewith expressly reserves the right to deny, cancel, terminate, suspend or limit future access to the Services, including the Site and any Tradewith App, as determined by Tradewith in its sole discretion. Restrictions from using the Services, for example, may occur for persons previously restricted from access to the Services or due to a breach of this Agreement or any Tradewith policy, as determined by Tradewith in its sole discretion.
(a) As a requirement to using some Services, you must create an account (an “Account”). You shall maintain only one active Account at any time. You represent and warrant to us that all information you provide (to create your Account and using the Services) is accurate, current and complete and that you will keep the information updated.
(b) We may permit you to create your Account by logging in via Facebook Connect, Linkedin or other third party service (each and collectively a “Third Party Account”). By creating your Account through any Third Party Account, you permit us to access and aggregate your information from your Third Party Account, which includes your profile and profiles of others. You acknowledge that you control the privacy settings on your Third Party Accounts and Tradewith has no obligations or responsibilities with respect to such settings or access to Third Party Accounts.
(c) You will provide us with a current email address and any other information we may reasonably request. You will update your email address as necessary to provide us with a method to reach you electronically.
(d) You will choose a user name and password(s) associated with your Account and you shall not use another person’s user name or impersonate any other person or adopt a user name that is offensive, vulgar or obscene. If you use an alias you are responsible for all actions and activities that occur through the use of the alias.
(e) You shall keep your Account information confidential and secure, including any password or payment methods. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not.
Tradewith recommends that you regularly change your passwords. Tradewith will not be liable for any Losses you incur due to any unauthorized use of your Account. You, however, may be liable for Losses incurred by Tradewith or third parties caused by your Account activity, whether caused by you or by an authorized or unauthorized person.
You must notify Tradewith immediately of any breach of security or unauthorized use of your Account. Email us at notify@tradewith.co.
(f) Tradewith has the right, but undertakes no duty, to suspend or terminate your Account. Tradewith may terminate access to all or any part of the Services at any time. We may remove or destroy any data and files relating to you from our records. You accept the risk of loss to any and all information, including your original User Content, associated with your Account.
(g) Tradewith may contact you about your use of the Services, including your Account, at any telephone number you have provided to us. We may auto-dial and/or pre-record messages for calls and texts. For the purpose of all such calls, you may be subject to call recording and you hereby consent to the recording, subject to applicable laws, whether or not Tradewith asks you on any particular call for your consent to record such call.
(h) Tradewith has established privacy policies and procedures which you acknowledge receiving with this Agreement. privacy policy [link] You consent to your personal data being transferred to and processed in the United States.
Tradewith reserves the right, but does not undertake the obligation, to access, read, preserve and disclose any information available to us through your use of the Services, including Content, as in our sole discretion, we determine advisable to: (A) satisfy applicable law, legal process or request, including from any governmental, exchange, self-regulatory organization, market data vendor or employer; (B) enforce this Agreement or other agreements you have with us; (C) detect, prevent or otherwise address issues, including allegations of criminal activity, security breaches, technical difficulties or support requests; or (D) protect the rights, property or safety of Tradewith or third parties.
(a) Certain Services are provided in exchange for payment of a fee and any applicable sales taxes (the “Paid Services). All fees are based on access rights and not on usage, and are non-cancellable and non-refundable. Services, including Paid Services, are not transferrable to any other party. Tradewith reserves the right to change its fees at any time, and the changes shall be posted at the Site and in any Tradewith App effective immediately without further notice to you.
You agree to pay all amounts due for Paid Services at the time you order them and in the future if the Paid Services impose a recurring fee. You will provide current, complete and accurate information to permit Tradewith to receive payment from you for fees for Paid Services including updating your information with Tradewith or the Payment Processor, as applicable. We may determine to delay billing until a certain date and we also may aggregate fees for multiple orders into a single payment.
Any questions regarding your fees or billing should be directed to support@Tradewith.co.
(i) Paid Services may have a recurring fee (which may be in addition to an initial fee). Subscriptions are Paid Services that are pre-paid for a defined period (e.g., month, quarter, year). Any changes to a subscription will be made effective at the start of the next subscription period.
Unless you opt-out of auto renewal for a subscription or recurring fee, you will be automatically extended for additional renewal periods at the term originally selected at the then-current rate (without promotions or discounts). Any termination notice you provide to Tradewith is not effective until we have a reasonable time to act upon the notice and does not apply to any prior amounts payable or paid by you.
Changes in fees posted on the Site and in any Tradewith App shall be effective upon your next purchase. If you have purchased Paid Services as a subscription for a period of months or years, changes in the fees shall be effective for the next payment cycle, i.e., upon renewal. If you authorize recurring payments and we change the amount to be charged, you have the right to know about the change before the next scheduled payment transaction.
(ii) You acknowledge that we may offer a free trial, reduced rate or other promotion for a limited term use and unless you specifically terminate the promotion and discontinue use of it prior to the end of the promotional term, you will be billed for ongoing access to the Paid Service at the then current fee. Free trials, reduced rates or other promotions or discounts are limited to one per user, per person, per household and per email address in any given one year period unless otherwise stated in the offer.
(iii) Payments are non-refundable unless otherwise agreed in writing by Tradewith in the terms of the Paid Service or required by applicable law. Payments for single Publisher subscriptions will be refunded on a pro-rata basis if the Publisher terminates. Payments for subscriptions based on multiple Publishers’ investment ideas will not be refunded if a Publisher terminates. You acknowledge that there are no refunds of amounts paid by you if you determine not to access or use the Paid Service for any reason. For example, if you terminate a subscription service, your subscription will not be renewed after your then-current term expires and you may use the subscription through the end of your then-current term, but no refund will be issued.
(iv) Fees and any other amounts due to Tradewith are payable in U.S. Dollars. Fees do not include any withholding or transaction taxes, which may include taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, excise, use, goods and services or taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”) and you are responsible for paying all Taxes imposed on the Services or otherwise associated with this Agreement. If Tradewith is required to pay or collect Taxes for which you are responsible, the appropriate amount will be billed to and paid by you. Tradewith is solely responsible for taxes assessable against it based on its income, property and employees.
(b) You authorize Tradewith to bill you through your Account and you shall pay for the Paid Services using a third party payment processor(s) (each a “Payment Processor”) that provides services to Tradewith. The Payment Processor may make available one or more payment methods, such as credit card payments or electronic bank account debits and the terms of your payment, including the payment method, will be determined by agreement between you and the Payment Processor in addition to the terms of this Agreement. Tradewith is not responsible for any errors by the Payment Processor. We have the right to correct or instruct the Payment Processor to correct any errors or mistakes, even if you have already made a payment.
(c) Your failure to update billing information for you and your Account does not terminate your payment obligations. If Tradewith does not receive the fees owed by you, you agree to pay all amounts due to us from you on demand. Tradewith may terminate your access to Paid Services for non-payment of fees payable for the Services and such termination does not release you from paying the amounts due.
(a) “Content” means ideas, analysis, opinions, recommendations, data, research, summaries, reports, comments, video and audio features, graphics, software, interactive features and other information. By using the Services, you and others may originate, submit, access and use Content. Content includes all User Content.
You acknowledge that you may be exposed to Content that is offensive, indecent, inaccurate, misleading or otherwise objectionable, harmful or problematic. All Content accessed by you using the Services is at your own risk and you will be solely responsible for any Losses to you or any other party resulting from your use of the Services and the Content. Tradewith does not bear any responsibility for Content and disclaims all liability for Content obtained through the Services, including the Site and any Tradewith App.
Tradewith reserves the right to monitor, remove, block, edit, update, correct, amend or otherwise change the Content or other information contained in the Services, in its sole discretion, but it does not undertake the responsibility to take any such actions. Tradewith does not guarantee any Content you access or obtain through the Services is or will continue to be in compliance with the requirements, policies or other standards established by Tradewith or that any particular Content will be available through the Services.
(b) Subject to your compliance with this Agreement, Tradewith grants you a limited, non-exclusive, non-sublicensable, non-transferable and revocable right to access and use the Services only for your personal non-commercial use and only in a manner that complies with all applicable law. You may download or copy the Content and other downloadable items displayed in the Services for personal use only, provided that you maintain all copyright and other notices contained therein. Copying or storing any Content other than for personal non-commercial use is expressly prohibited.
(c) “User Content” for purposes of this Agreement means Content provided by you and all other persons who submit Content and is the sole responsibility of the person who submitted the User Content. Any and all Content submitted by you through any method (such as to the Site, through any Tradewith App or by email, and however posted or published) is User Content and you are responsible for all User Content that you submit on Tradewith’s Services, including the Site and any Tradewith App. Generally the term “submit” or a variation of it means any manner in which a person may post, publish, upload, transmit, link or otherwise submit Content through the Services.
(i) If and when you submit User Content, including by any person using your Account, you represent and warrant to Tradewith that you: (A) are complying with this Agreement; (B) are solely responsible for any and all of your User Content and the consequences and requirements for submitting it; and (C) have all necessary rights to submit User Content, either because you are the author of the User Content and have the right to submit it or because you have the appropriate rights, licenses, consents, and/or permissions from the third party and/or other owners of the User Content.
(ii) You and others may submit User Content voluntarily and there is no confidential relationship or any obligations by any party to treat your or other User Content as confidential or secret. Tradewith has no obligation to develop or use your User Content. No compensation is due to you or anyone else for your User Content, with the limited exception being for Users who are Publishers, have separately provided information regarding their Publisher status and as such, may be able to receive payments as part of Tradewith’s arrangements with Publishers.
(iii) Tradewith shall own non-exclusive rights, including all intellectual property and other proprietary rights, to all User Content submitted to Tradewith, and shall be entitled to the unrestricted use and dissemination of any User Content for any purpose, commercial or otherwise, without acknowledgment or compensation to you or any other person. You grant Tradewith a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers) and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other Content and intellectual property, display and perform your User Content in any manner or means Tradewith determines in its sole discretion, including for promoting and redistributing Tradewith’s Services in any media format and through any media channels without restrictions of any kind and without payment of other consideration of any kind, or permission or notification to you or any third party. You also grant each User and other party accessing the Services, including through the Site and any Tradewith App, a non-exclusive license to access your User Content and to use, reproduce, distribute, prepare derivative works of, combine with other works, display and perform your User Content as permitted through the Services. All of the above licenses and any other licenses granted by you are perpetual and irrevocable. You represent and warrant that you have all rights to grant the foregoing licenses to us without infringement or violation of any third party rights, including any privacy rights, publicity rights, copyrights, trademarks, contract rights or any other intellectual property or proprietary rights. You waive all Disputes and Claims against Tradewith relating to any moral rights, artists’ rights or any other similar rights worldwide that you may have in your User Content, including to the extent you provide your name, trademarks, service marks or logos in your User Content and you further waive any right of inspection or approval of any use. For clarity, this Agreement does not affect your other ownership or license rights in your User Content. Notwithstanding the foregoing, nothing herein shall be deemed to give Tradewith or third parties any right to your personal information, including any investment information you may access from your brokerage account, other than in connection with providing you Services.
(a) The Services, including the Content and all associated intellectual property rights, such as copyrights and trademarks, are the property of Tradewith and its third-party licensors or providers. Tradewith, for itself and its licensors, reserves all right, title and interest in and to its Services, including the Content. You acknowledge your use of the Services is for your information and personal, non-commercial use and you do not acquire any ownership rights by using the Services.
(b) This Agreement, including the Rules of Conduct incorporated into this Agreement, prohibits conduct that would violate Tradewith’s and third parties’ intellectual property rights. Except as provided in this Agreement or otherwise permitted with Tradewith’s prior written agreement, you shall not use, download, copy, display, sell, license, de-compile, reproduce, republish, upload, post, transmit, broadcast, distribute, create derivative works or otherwise modify or exploit Content.
(c) For the avoidance of doubt, any use of the Services, including any licenses granted by Tradewith, prohibits Automated Data Collection unless Tradewith provides express written permission. “Automated Data Collection” is the collection of data from Tradewith through automated means, including through harvesting bots, robots, crawlers, spiders or scrapers or similar data gathering and extraction tools and any use of data obtained in that manner. Tradewith makes a limited exception to the prohibition on Automated Data Collection to permit general purpose internet search engines and non-commercial public archives that use such tools to gather information for the sole purpose of displaying hyperlinks to Tradewith; provided such parties do not sell or transfer any data collected through or derived from the data collected through Automated Data Collection.
(d) If you believe any Content or other aspects of the Services infringe your intellectual property rights, including any copyright, you may submit notice to Tradewith’s copyright agent in accordance with the Digital Millenium Copyright Act (“DMCA”) by providing the following information:
You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of infringement Disputes and Claims should be sent by mail to: Tradewith, Co. Attention: Infringement Agent, 34 N 7th St, 3R, Brooklyn, NY, 11249, phone number: 646-883-3851 or by email to notify@tradewith.co. Tradewith will respond promptly to claims of infringement that are reported to Tradewith’s Infringement Agent in the manner described above.
Tradewith has a policy of terminating, in appropriate circumstances, those Users who are repeat infringers.
(a) The Services permit you to access third parties’ websites, applications and other delivery methods for third parties’ good and services, including through links to the third parties’ websites and subscriptions you elect to use. Unaffiliated third parties are not under Tradewith’s control. The availability of third party information and services through our Services does not mean Tradewith endorses the third party or that Tradewith has made any determination regarding the third party, including the accuracy, reliability, completeness or benefits of the third party or their services. Your access or use of third parties’ products and services is at your sole risk. You acknowledge third parties establish different agreements, privacy policies, security procedures and other terms that govern your use of their information and services and you are responsible for your interaction with third parties and use of third parties’ goods and services. Tradewith is not responsible or liable for any actions or inactions of third parties, including the functions, accuracy, legality, appropriateness or any other aspect of their goods and services.
You shall comply with all applicable security and other procedures imposed by third parties, including those designed to protect the security of your information stored with any Third Party Account.
(b) You may direct Tradewith to retrieve information from third parties with whom you maintain a customer relationship. By submitting to Tradewith, including through any App, your access information to any third party account, including your username, passwords, pins or other log-in information, you are granting Tradewith the authority and right, to act on your behalf as your agent, to access, use and store your account information for the purpose of providing you the Services. You will update Tradewith upon any changes to your access information if you desire to continue granting Tradewith access to such third party account and information. If you provide Tradewith with access to any of your accounts with a third party, at the time you do so for each account, you represent and warrant to Tradewith that: you are authorized to grant Tradewith access to your account and account information; Tradewith is not obligated to pay fees or other costs for such access; and Tradewith is not subject to any third party’s terms and conditions as a result of such access, uses and storage of your account information. Tradewith has no obligation to review your account information for any purpose including the accuracy or legality of such information. You further authorize Tradewith, as it determines in its sole discretion, to configure the Services and communicate with the third party to facilitate the compatibility of the third party’s systems and information for your use with the Services. You acknowledge that your obligation to indemnify Tradewith, as provided in this Agreement, includes your obligation to indemnify us for any Claims incurred by us due to your granting us access to any third party accounts or information, including any violation of a third party’s agreements relating to its services. Tradewith may store your access and account information in accordance with its Privacy Policy and related procedures.
(c) With respect to any third party brokerage accounts for which you provide Tradewith your account information, you acknowledge that Tradewith is acting as your agent and not as the agent of the brokerage firm. Tradewith is not responsible for any activities, actions or failure to act in connection with your brokerage account, including: your determinations to invest, trade or otherwise transact in your brokerage account based on information provided by Tradewith using your account information; any service related issues such as settings or fees; or technical difficulties, processing errors, data loss, access issues and delays in service, including those arising as a result of our attempt to access, use or configure information from your brokerage account.
YOU ACKNOWLEDGE THAT GRANTING ANY PARTY ACCESS TO YOUR ACCOUNTS OR SEEKING TO ACCESS YOUR ACCOUNTS USING ANY PARTY’S SERVICES, YOU ARE INCREASING YOUR RISK OF LOSS DUE TO INCREASED ACTIVITIES AND INCREASED POSSIBILITIES OF ERRORS AND INTENTIONALLY WRONGFUL ACTS, AND YOU WILL PROMPTLY REVIEW ALL ACCOUNT INFORMATION, NOTICES AND ACTIVITIES THAT OCCUR IN ANY ACCOUNT FOR WHICH ARE ACCESSING IN CONNECTION WITH USING TRADEWITH’S SERVICES, AND YOU WILL TAKE IMMEDIATE ACTION TO ADDRESS ANY ISSUES RAISED IN YOUR ACCOUNT, WHICH MAY INCLUDE CHANGING ACCESS INFORMATION AND/OR TERMINATING ACCESS, AS YOU DETERMINE IN YOUR SOLE DISCRETION.
(d) You also may use or acquire applications from a third party provider who makes mobile software available to permit you to access the Services, including the Tradewith App. Any such third party App provider does not have any responsibility or liability for Tradewith’s or any other party using or accessing the Services, including any Tradewith App.
For iPhone® and other Apple® devices, the following applies: Tradewith grants you a nontransferable, nonexclusive, royalty-free, fully paid, worldwide license (without the right to sublicense) to install and use the Tradewith App, in executable object code format only, solely on your Apple® device. Tradewith is exclusively responsible for the Tradewith App, including the Services and Content and including addressing any claims relating to it, such as product claims, warranties, if any and infringement claims. Apple is not obligated to maintain or support the Tradewith App. Apple shall not provide any warranty or other coverage for the Tradewith App. By downloading Tradewith’s App on your iPhone® or other Apple® device, your use of the Tradewith App is subject to Apple’s agreements, including those in its Apple App Store Terms of Service. You further acknowledge that Apple® is not a party to this Agreement, but it is a third party beneficiary of this Section 8(d) and Section 12(i) and will have the right to enforce these Sections against you.
(a) Tradewith has no special relationship with you and no special duty to you. You acknowledge Tradewith does not have any obligation regarding your access to the Services and how you use the Content. Tradewith makes no representations or warranties concerning the Services or the Content and is not responsible for any market data, performance reports or other Content, including information that is inaccurate or incomplete in any respect or any actions that you take or do not take based on the Services or the Content. Tradewith may make, or its Services may have, errors and we are not responsible for such errors or for our or third parties’ failures.
This Agreement includes terms that limit or absolve Tradewith from responsibility and liability for Losses you incur from using the Service. “Loss” or “Losses” means each and collectively, all losses, liabilities, demands, claims, damages, costs, fees and expenses whatsoever (including reasonable attorneys’ fees and expenses), however arising.
(b) NO WARRANTIES. Tradewith’s Services, INCLUDING USE OF THE SITE AND ANY TRADEWITH APP, are provided “as is”, “AS AVAILABLE” AND “WITH ALL FAULTS”. Tradewith and its affiliates and each of our and their respective OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ALL THIRD PARTY SERVICE PROVIDERS do not make — and you expressly waive –representations or warranties of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability or fitness for a particular use, purpose or application, timeliness, freedom from interruption, any implied warranties arising from trade usage, course of dealing or course of performance. Without limiting the foregoing, there is no warranty that the Services will meet your requirements, be error free, or operate without interruption. The entire risk as to the quality and performance of the Services is with you. Your use of the Services, INCLUDING THE SITE AND ANY TRADEWITH APP, is solely at your own risk.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE THAT NO INFORMATION OR ADVICE (WHETHER ORAL OR WRITTEN, INCLUDING ELECTRONICALLY TRANSMITTED) PROVIDED BY TRADEWITH or its affiliates and any of our or their OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS AND THIRD PARTY SERVICE PROVIDERS WILL CONSTITUTE LEGAL, FINANCIAL, TAX, ACCOUNTING OR INVESTMENT ADVICE OR CREATE A WARRANTY OF ANY KIND WITH RESPECT TO the SERVICES, INCLUDING THE SITE AND ANY TRADEWITH APP, AND YOU SHOULD NOT RELY ON ANY INFORMATION OR ADVICE.
some jurisdictions may not allow or limit the disclaimer of implied warranties and the foregoing disclaimers may not apply. in such event the disclaimer of warranties will apply to the greatest extent permitted by applicable law.
(c) LIMITATION OF LIABILITY. Tradewith, its affiliates and each of our and their respective officers, directors, employees, agents and third party service providers shall have no liability, contingent or otherwise, to you or to third parties, for any Losses of any kind incurred by you as a result of your use of the Services, including the Site or any Tradewith App, including those relating to: (i) the correctness, quality, accuracy, completeness, reliability, or performance of the Services, including the Content; (ii) the suspension or termination of, or the inability to use, all or part of the Services, or any inaccuracies or omissions in any Services, regardless of the cause of such suspensions, terminations, non-usabilities, inaccuracies, or omissions; (iii) any failure or delay suffered or allegedly suffered by you, however caused, whether or not within Tradewith’s reasonable control, including delays or interruptions of service or transmissions caused by the product malfunction, governmental, exchange or other regulatory action or acts or Tradewith’s intentional acts; (iv) third party conduct of any nature whatsoever; (v) personal injury or property damage of any nature whatsoever; and (vi) unauthorized access to or use of any Content or other information provided by you or others. Tradewith is not responsible for informing you of any difficulties Tradewith or other parties experience or to take any action in connection with such difficulties. Tradewith has no duty or obligation to verify, correct, complete or update Services. You are solely responsible for any Losses you incur from your use of the Services, whether the Losses are direct or indirect, incidental, punitive, special or consequential.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRADEWITH OR ITS AFFILIATES AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL LOSSES OR CLAIMS WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT TRADEWITH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. IN NO EVENT SHALL TRADEWITH’S CUMULATIVE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE GREATER OF FIFTY DOLLARS ($50.00) OR THE AMOUNT YOU HAVE PAID TRADEWITH IN THE TWELVE (12) MONTHS PRECEDING THE DATE YOUR LOSS AROSE.
If you are a California resident, you hereby waive California Civil Code §1542 which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” This release includes the criminal acts of others.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER LOSSES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH EVENT, LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
THE DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES AND THE LIMITATION OF TRADEWITH’S LIABILITY IN THIS AGREEMENT SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE SERVICES, INCLUDING THE SITE AND ANY TRADEWITH APP.
You shall defend, indemnify and hold harmless Tradewith, its affiliates, and each of our and their respective officers, directors, employees, agents, and third party service providers (collectively, “Tradewith Indemnitees”) from any and all Losses resulting directly or indirectly from any Claim against Tradewith Indemnitees arising out of or relating to (a) your use or misuse of, or access to, any of Tradewith’s Services, including the Site, any Tradewith App and Content and if applicable your actions as a Publisher; (b) your violation of this Agreement; (c) infringement by you or any third party using your Account or identity in the Services of any intellectual property or other right of any person or entity. Tradewith reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses and you shall remain liable for the costs, fees and expenses of such defense. Tradewith Indemnitees shall not be liable for any Claim against you by a third party.
(a) “Dispute” means any dispute, disagreement or controversy between you and Tradewith, arising out of or relating to the Services, this Agreement, any other agreement or any transaction or communication between you and Tradewith, without regard to whether such gives rise to legal or equitable Claims or the basis therefore, such as in contract, tort or warranty. “Claims” means any legal or equitable action, proceeding, claim, demand or suit filed, made or brought or threatened to be filed, made or brought in a court or arbitration forum.
(b) The terms of this Agreement and all other agreements between you and Tradewith and any transactions, communications or activities giving rise to any Dispute or Claims between you and Tradewith shall be construed and governed by the laws of the State of New York without reference to the state’s conflict laws. For the avoidance of doubt, the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded as governing law.
(c) Claims for infringement of intellectual property (e.g., patent, copyright and trademark) or other proprietary rights (e.g., trade secrets) may be brought in United States state or federal court. You may bring Claims in an individual action in the small claims court located in your state or municipality.
(d) Except for infringement Claims or small Claims against Tradewith by you, Tradewith and you agree that we will resolve all Disputes and Claims between us by binding arbitration. Arbitration will be administered by and in accordance with the rules of the American Arbitration Association (AAA) except that AAA may not administer any multiple claimant or class arbitration. Tradewith consents to adhering to the AAA Consumer Arbitration Rules. The AAA rules and procedures, including how to make a demand for arbitration can be found at the American Arbitration Association’s website https://adr.org/Rules
ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED.
Arbitration may be conducted in any manner mutually agreeable to the parties, including based on written submissions or in person. Arbitration will be conducted in English. The decision of the arbitrator(s) shall be final and judgment and awards shall be enforceable by any court with jurisdiction over the parties.
(e) If you do not wish to be bound by the arbitration provisions in this Agreement, you must notify Tradewith within thirty (30) days of the date that you acknowledge this Agreement or access the Services, including the Site or any Tradewith App (whichever is sooner). Send your notice of Opt-Out from Arbitration to notify@tradewith.co and provide your first and last name, address, phone number, Account number and state the following: “I wish to opt-out from Tradewith’s arbitration provision contained in its Terms of Service Agreement.” Your opt-out request will be valid only if made within thirty (30) of first accepting this Agreement or accessing the Services. If you opt-out effectively, all other terms for Dispute resolution and Claims shall apply, including those relating to governing law and the courts in which Disputes may be brought.
If Tradewith amends the Dispute resolution procedures relating to arbitration, you will have thirty (30) days from the date of notice to opt out of such amendments.
(f) To the extent permitted by law, regardless of any law or statute to the contrary, any Claim must be filed in small claims court or AAA arbitration within one year after the Claim accrues (i.e., the earlier of the date the Loss was incurred or the Dispute arose), and if not filed within such one year period, any Claim relating to the Loss or the Dispute is permanently barred. THE FOREGOING IS A ONE YEAR LIMITATION TO FILE CLAIMS.
(g) Venue for arbitration and small claims court shall be in the county in which you reside and if you do not reside in the United States, then in New York, New York. You and Tradewith agree that any Claims other than those in arbitration and small claims court may be filed only in state or federal court located in New York, New York and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for all such Claims. Each party further agrees to waive the right to trial by jury for all Claims.
(h) Tradewith and you agree that each party may bring Claims against the other party only in their individual capacity and not as a plaintiff or class member in any representative proceeding, including federal class action or class arbitrations. Neither you or Tradewith will seek to have any Disputes or Claims heard as a class action or any form of proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined without the consent of both parties.
If the foregoing class action waiver is found to be unenforceable, then the entirety of the terms providing for arbitration will be null and void and the Agreement otherwise remains in full force and effect. The terms of this Section otherwise survive any termination of this Agreement.
(i) All of Tradewith’s rights and remedies (including termination rights) are cumulative. You acknowledge that Tradewith may not have an adequate remedy at law in the event of any breach or threatened breach of Tradewith’s, its licensors or other third parties’ intellectual property rights and Tradewith may suffer irreparable injury as a result. In the event of any such breach or threatened breach, you agree that Tradewith may seek injunctive relief, without the need to post any bond or other security.
(a) Tradewith reserves the right, in its sole discretion, to modify or replace any of the terms in this Agreement, or change, suspend or discontinue all or part of the Services, Content, the Site or any Tradewith App, including the availability of any feature, database or Content) at any time. We may notify you of changes to this Agreement by posting changes to the Site or by email.
You agree we may provide you with notices through the Site and any Tradewith App or by sending notices electronically to your email address, as we determine in our discretion. All notices shall be deemed received when electronic transmission is successfully completed. Tradewith assumes no liability or responsibility for your failure to receive an email notification.
Where “written” notice is required, electronic transmission to the specific email for notices provided by the party shall be deemed notice provided there is no delivery failure in the transmission.
(b) Tradewith is excused from performing under this Agreement while the existence of a Force Majeure Event makes its performance impossible. A “Force Majeure Event” means failures or delays in performance as a result of or relating to: (i) causes beyond our reasonable control and occurring without our fault or negligence, including earthquakes, floods, fires and other natural disasters, acts of government, civil unrest, strikes or labor disruptions (including one involving our employees if such occurs as a result of a natural disaster, epidemic, pandemic or other event outside our reasonable control), Internet service provider failures and delays and denial of service attacks; and (ii) third party providers which we relies upon to obtain or provide the Services, including Internet service providers, telecommunications or hosting facilities are inoperative for any reason. A Force Majeure Event does not extend a subscription period or alleviate you from your obligation to pay fees.
(c) This Agreement, including additional terms of disclosures, information and agreements which are expressly incorporated into this Agreement, constitutes the entire agreement between the parties. All past and concurrent agreements and/or understandings whether written or oral are hereby merged into this Agreement.
(d) This Agreement shall be binding on and inure to the benefit of the parties and their respective heirs, executors, successors and permitted assigns. This Agreement may not be assigned by you. Tradewith may assign this Agreement, in whole or in part, transfer or delegate any of our rights and obligations under this Agreement without your consent.
(e) Headings in this Agreement are for convenience only. The word “including” is not, and is not intended to be, limiting; as such, the term “including” or a variation of it, means, “including, but not limited to.” No rule of strict construction is to be used when interpreting this Agreement.
(f) Each covenant/condition of this Agreement shall separately be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement shall be held or made invalid by arbitral or court decision, ruling or otherwise, the remainder of this Agreement shall not be affected thereby.
(g) Tradewith’s failure at any time to require your performance of any term, provision or condition of this Agreement or to enforce its rights under this Agreement shall in no way constitute a waiver of such term, provision or condition or its rights, and shall not affect Tradewith’s right to enforce this Agreement in that or any other instance.
(h) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed, and the parties may exchange this executed Agreement, by electronic exchange, electronic mail or facsimile and such transmissions shall constitute effective execution as to all parties.
(i) The export laws, rules, restrictions and administrative acts of United States’ authorities, including the Department of Commerce, Department of Treasury Office of Foreign Assets Control and State Department (each and collectively, “Export Laws”) may apply to the Services. You shall not use the Services, including the Site and any Tradewith App, to collect, store or transmit any technical information or data that is controlled under Export Laws. You shall not export or re-export the Services in violation of any Export Laws, including that you shall not download or otherwise export or re-export the Services into any country with which the United States has embargoed trade or to a national or resident of such country; to anyone on the Treasury Department’s list of Specially Designated Nationals or the Department of Commerce’s Denied Persons List or any other denied parties under the Export Laws. You represent and warrant that: you are not a national or resident of, located in or under the control of any restricted country and you are not on any denied persons list; and you are in compliance with and will comply with all Export Laws. Your access of the Services, including the Site and any Tradewith App, is at your own initiative and you are responsible for compliance with local laws of that jurisdiction, if and to the extent those laws are applicable and do not conflict with Export Laws. If the laws conflict with the Export Laws or any other U.S. applicable law, you shall not access the Services, including the Site or any Tradewith App.