THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES.
1.1 ‘Affiliate’ means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. ‘Control,’ for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 ‘Content’ means information provided by Us to You through Your use of the Services.
1.3 ‘Derivative Work’ means a work that is based upon one or more pre-existing works, such as a revision, modification, translation (including compilation or recapitulation by computer), abridgement, condensation, expansion, or any other form in which such a pre-existing work may be recast, transformed, or adapted, and that, if prepared without authorization by the owner of the pre-existing work, would constitute a copyright infringement.
1.4 ‘Intellectual Property Rights’ means: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighbouring rights, moral rights, and mask works, and all Derivative Works thereof; (ii) trade design and industrial design rights; (iii) integrated circuit topography rights; (iv) trade-mark and trade name rights and similar rights; (v) trade secret rights and rights in confidential information; (vi) patents, designs, algorithms and other industrial property rights; (vii) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (viii) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
1.6 ‘Service’ or ‘Services’ means the products and services that are used by You and made available online by Us at: Our website, as further described in Schedule ‘A’ to this Agreement.
1.7 ‘You’ or ‘Your’ means you or the corporation or other legal entity for which this Agreement has been accepted, and Affiliates of that company or entity.
1.8 ‘Your Data’ means electronic data, information and personal information submitted by or for You to Us.
2.0 OUR RESPONSIBILITIES
2.1 Provision of Purchased Services. We will make the Services (except for the Club Room Trading Webinar Service) available to You pursuant to this Agreement and use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by an event of Force Majeure.
2.2 Protection of Your Data. We will take reasonable security measures and maintain administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except: (i) to provide the Services and prevent or address service or technical problems; (ii) as compelled by law in accordance with Section 5.3 (Compelled Disclosure) below; and (iii) as You expressly permit in writing.
3.0 USE OF SERVICES AND CONTENT
(a) Purchased Subscription. Services are purchased on a subscription basis. When purchasing a subscription, you will be given the option to purchase the Services by selecting from a list of Services set forth in Schedule ‘A’ on a monthly or annual subscription basis, as applicable, and the associated subscription price of each Service shall be set forth beside such Service subscription option.
(b) Trial Subscription. You may register for trial access, without the payment of any fees, to use the Service called ‘Club Room Trading Webinar’, which includes access to 20 free webinar (the ‘Trial’). Following the conclusion of the Trial, you must decide to purchase a subscription for this Service pursuant to Schedule ‘A’.
3.2 Your Responsibilities. You will be responsible for Your compliance with this Agreement. To subscribe for the Services, you will need to create an account with Us and You must provide us with accurate and complete information. You must never use another account without permission and You are solely responsible for the activity that occurs under Your account. You must keep your account password secure. You must only use the Services in accordance with all applicable laws and government regulations.
3.3 Usage Restrictions. You will not: (i) make the Services available to, or use any of the Services for the benefit of any third party; (ii) sell, resell or distribute the Services or the Content; (iii) copy the Services or any part, feature, function or user interface thereof; (iv) copy or duplicate any of the Content; (iv) access the Services or Content in order to develop a product or service competitive with the Services; or (v) reverse engineer the Services.
3.4 Changes. We reserve the right to change this Agreement at any time, and the changes will be effective when posted on our website for the Services or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.
4.1 Price. Each Service will have a monthly or annual subscription price, as applicable, and the first month’s or year’s payment, as applicable, will be payable by You to Us at the time you subscribe for the Services.
4.2 Currency. Payments will be billed to You in US dollars and Your account will be debited when You subscribe and provide Your payment information.
4.3 Methods of Payment. You must pay by one of the following methods:
(a) An online money transfer through your account with PayPal.com;
(b) A valid credit card acceptable to Us in our sole discretion; or
(c) By another payment option We provide to You in writing.
4.4 Payment Information. If Your payment and registration information is not accurate, current and complete, and You do not notify us promptly when such information changes, We may suspend or terminate Your subscription and refuse any further use of the Services. If You do not notify Us of updates to Your payment method (e.g., credit card expiration date), to avoid interruption of Your service, We may participate in programs supported by Your card or other payment service provider (e.g., updater services, recurring billing programs, etc.) to try to update Your payment information, and You authorize Us to continue billing your account with the updated information that We obtain.
4.5 Automatic Renewal. We will automatically renew Your subscription on a monthly or annual basis, as applicable, unless the Services are cancelled or terminated under this Agreement. Subscriptions will automatically renew for additional periods equal to the expiring subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 10 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
4.6 Overdue Charges. If any owed amount is not received by Us by the due date, then without limiting Our rights or remedies: (i) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month (or 18% per annum); and (ii) We may, in our sole discretion, condition future subscription renewals on payment terms shorter than those specified in Section 4.5.
4.7 Suspension of Service and Acceleration. If any amount owing by You under this Agreement is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue before suspending Services to You.
4.8 Payment Disputes. We will not exercise Our rights under Section 4.6 or 4.7 if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.9 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
5.1 Confidential Information. As used herein, the term ‘Confidential Information’ means the Services and the Content provided to You by Us through Your use of the Services. However, Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Us; (ii) was known to You prior to its disclosure by Us without breach of any obligation owed to Us; (iii) is given to You by a third party without breach of any obligation owed to that third party; or (iv) was independently developed by You, without access to the Confidential Information.
5.2 Protection of Confidential Information. You agree to keep the Confidential Information strictly confidential and You will use the same degree of care that You use to protect the confidentiality of Your own confidential information of like kind, but not less than reasonable care. You agree not to use any Confidential Information for any purpose outside the scope of this Agreement.
5.3 Compelled Disclosure. You may disclose Confidential Information to the extent compelled by law to do so, provided that You give Us prior notice of the compelled disclosure, to the extent legally permitted, and reasonable assistance, at Our cost, if We wish to contest the disclosure.
6.0 REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
6.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
6.2 Our Warranties. We warrant that: We use applicable administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Your Data; and (ii) We will not materially decrease the overall security of the Services during a subscription term. For any breach of an above warranty, Your exclusive remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).
6.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE DO NOT MAKE ANY WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE CONTENT AND SERVICES ARE PROVIDED ‘AS IS,’ EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY DAMAGES CAUSED TO YOU BY YOUR USE OF THE SERVICES. WE DO NOT WARRANT, CERTIFY OR GUARANTEE:
(a) THAT THE CONTENT WILL IMPROVE YOUR TRADING PERFORMANCE; OR
(b) THAT THE CONTENT WILL ACCURATELY PREDICT THE PRICE OF SECURITIES TRADED ON THE STOCK MARKET. THE DATA WE OBTAIN FROM OUR SOURCES IS BELIEVED TO BE RELIABLE BUT WE DO NOT GUARANTEE ITS ACCURACY; OR
(c) THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SERVICES AND YOU AGREE THAT WE SHALL NOT BE HELD LIABLE IN ANY WAY FOR THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE CONTENT OR FOR ANY DECISION MADE OR ACTION TAKEN BY YOU THROUGH YOUR RELIANCE UPON THE CONTENT.
7.1 Ownership. We own all right, title and interest in and to the Services and the Content, including, but not limited to, all Intellectual Property Rights therein or thereto. To the extent You acquire any right, title and interest in and to the Services or the Content, including but not limited to, Intellectual Property Rights therein or thereto, You hereby assign and agree to assign the same to Us.
7.2 Copyright. The Content provided to You by Us through Your use of the Services is protected by copyright and is Our property. You may only use the Content for Your personal use and You may not copy, reproduce, distribute, sell, resell, publish, display, modify, create Derivative Works, transmit or commercially exploit the Content. You may not use the Content to create any kind of database.
7.3 Further Assurances. You will, whenever requested by Us, execute any and all applications, assignments and other instruments which We deem necessary, at Our cost, in order to apply for and obtain letters of patent or copyrights of Canada or foreign countries for the Services, the Content, inventions or improvements related thereto and in order to assign and convey to Us all sole and exclusive right, title and interest in and to the Services, the Content, inventions or improvements, including all Intellectual Property Rights therein.
8.0 INFORMATION DISCLAIMER
8.1 Information Disclaimer. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE CONTENT PROVIDED TO YOU IS MERELY INFORMATION AND IS NOT ADVICE OF ANY KIND WHATSOEVER, INCLUDING FINANCIAL OR INVESTMENT ADVICE. WE ARE NOT PROVIDING TO YOU ANY TRADING, FINANCIAL OR INVESTMENT ADVICE AND YOU HEREBY ACKNOWLEDGE AND AGREE THAT WE ARE NOT FINANCIAL OR INVESTMENT ADVISORS. THE CONTENT IS NOT INTENDED TO PROVIDE TAX, LEGAL OR INVESTMENT ADVICE AND WE DO NOT PROVIDE ADVICE AS TO THE PURCHASE OR SALE OF SECURITIES. FINANCIAL AND INVESTMENT DECISIONS BASED ON THE CONTENT ARE YOUR SOLE RESPONSIBILITY. WE ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCES RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE CONTENT OR THE SERVICES.
8.2 Provision of Information. All Content we provide to You is intended as general information only and is neither professional stock broker, investment or trading advice for any investment nor a substitute for other professional advice and services from qualified financial or investment services providers familiar with Your financial situation. Always seek the advice of your financial or investment advisor or other qualified financial or investment services provider regarding any investment. The Content is provided with the understanding that We are not engaged in rendering professional services or advice. Your use of the Services is subject to all disclaimers pursuant to this Agreement.
9.1 Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your use of the Services infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable law (a ‘Claim Against Us’), and will indemnify Us from any damages, legal fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us.
9.2 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the Content infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable law (a ‘Claim Against You’), and will indemnify You from any damages, legal fees and costs finally awarded against You as a result of, or for any amounts paid by You under a court-approved settlement of, a Claim Against You.
10.0 LIMITATION OF LIABILITY
10.1 Limitation of Liability. OUR LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. WE WILL NOT BE HELD LIABLE IN ANY WAY FOR THE FINANCIAL IMPACT TO YOU DUE TO ANY TRADES YOU MAKE AS A RESULT OF RELYING ON OUR CONTENT.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.0 TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until Your subscription(s) has (have) expired or has (have) been terminated.
11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified when You purchase the subscription for a Service.
11.3 Termination. We may immediately, in Our sole discretion, and without notice terminate the Services if you fail to comply with this Agreement. Upon termination you must immediately stop using the Services.
11.4 Refund or Payment upon Termination. Payments once made are not refundable. If this Agreement is terminated and we have already processed Your monthly or annual payment, as applicable, You will not receive a refund for that month or year of subscription, as applicable. Any termination of this Agreement shall not affect Our rights to any payments due to Us.
11.5 Surviving Provisions. The sections of this Agreement titled ‘Payment’, ‘Confidentiality’, ‘Representations, Warranties, Exclusive Remedies and Disclaimers’, ‘Ownership’, ‘Information Disclaimer’, ‘Indemnification’, ‘Limitation of Liability’, ‘Term and Termination’ and ‘General Provisions’ will survive any termination or expiration of this Agreement.
12.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, the second business day after mailing, (ii) the second business day after sending by confirmed facsimile, or (iii) the first business day after sending by email, and provided that neither an ‘out of office’ reply nor any other evidence of transmission failure has been received. We will use the contact information You provide to Us when You create an account with Us as Your address for notice. Our address for notice is set forth below:
EOTPRO Developments Inc.
306 – 555 Jervis Street
Vancouver, BC V6E 4N1
12.2 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein and the parties hereby exclusively attorn to the jurisdiction of the Courts of the Province of British Columbia, judicial district of Vancouver.
12.3 Equitable Relief. You acknowledge and agree that any breach of Your obligations under this Agreement with respect to Our Intellectual Property Rights or Confidential Information will cause irreparable injury for which there are inadequate remedies at law, and therefore We will be entitled to seek in any court of competent jurisdiction injunctive, preliminary or other equitable relief in addition to damages, including court costs and reasonable legal and other professional fees, to remedy any actual or threatened violations of Our rights with respect to Our Intellectual Property Rights and Confidential Information.
12.4 Force Majeure. Non-performance of this Agreement (other than any failure to make payments required under this Agreement) by a party shall be excused to the extent that performance by such party is rendered impractical or impossible by civil disobedience, strike, earthquake, fire, flood, governmental acts, governmental orders or governmental restrictions, shortages of supplies, Internet service provider failure or delay or denial of service attack or any other reason where failure to perform is beyond the reasonable control of, and not caused by negligence of, the non-performing party (‘Event of Force Majeure’); provided further that the non-performing party provides prompt notice of the Event of Force Majeure and its expected duration, and uses reasonable efforts to resolve such Event of Force Majeure.
12.5 Time. Time shall be of the essence of this Agreement and of all provisions of it and no extension or variation of this Agreement shall operate as a waiver of this provision.
12.6 Entire Agreement. This Agreement shall constitute the entire Agreement between the parties and supersedes any and all prior agreements whether written or oral between the parties with respect to the Services.
12.7 Assignment; Enurement. This Agreement may not be assigned, in whole or in part, by You without our prior written consent. However, We may assign or transfer it without Your consent to (a) an Affiliate, (b) a company through a sale of assets by Us, or (c) a successor by merger. This Agreement shall enure to the benefit of, and be binding upon, the parties and their respective successors, heirs and permitted assigns.
12.8 Trade-marks. EOTPRO, DeepStreet Edge, DeepStreet Now and DeepStreet First are trade-marks of Ours.
12.9 Severability, Waiver. In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. No failure or delay by any party hereto in exercising any right or remedies under this Agreement shall be construed to operate as a waiver thereof nor shall any single or partial exercise or waiver of any right or remedy preclude its further exercise or the exercise of any other right or remedy.
12.10 Contra Proferentem. No presumption shall operate in favour of or against either party hereto as a result of any responsibility that either party hereto may have had for drafting this Agreement.
12.11 Amendments. This Agreement may not be amended, modified, varied or supplemented except by an instrument in writing signed by the parties.
12.12 Rights of Third Parties. Nothing in this Agreement is intended to confer on any party that is not a party to this Agreement any right to enforce any term of this Agreement.
12.13 Headings. The headings herein are inserted for convenience of reference only and shall not be used in interpreting or construing this Agreement.
SERVICES, SUBSCRIPTION TERM(S) AND PRICING
|Price:||$[TO BE CONFIRMED]/year|
|Subscription:||DEEPSTREET EDGE: (i) Combined DeepStreet edge dashboard containing news; (ii) Live daily club room; and (iii) Index charts NQ, YM, TF and ES.|