Terms of Use
Updated on: March 24, 2023
PLEASE SCROLL DOWN AND CAREFULLY READ THE TERMS OF USE BELOW.
THESE TERMS OF USE, AS AMENDED FROM TIME TO TIME (THIS “AGREEMENT”), SET FORTH THE TERMS OF YOUR USE OF THE SERVICES (DEFINED BELOW) OF TRADESMITH, LLC (“TRADESMITH,” “WE,” “US,” AND/OR “OUR”). THIS IS A BINDING CONTRACT BETWEEN YOU, AS A USER OF THE SERVICES (“YOU,” “YOUR,” AND/OR “USER”) AND TRADESMITH, THE PROVIDER OF THE SERVICES. THIS AGREEMENT INCORPORATES BY REFERENCE OUR PRIVACY POLICY, DMCA POLICY, ANY SPECIFIC TERMS OF SERVICE, AND ANY OTHER RULES OR GUIDELINES POSTED REGARDING OUR SERVICES (EACH, AN “ANNEX”), AS MAY BE AMENDED BY US FROM TIME TO TIME.
YOUR ACCESS, PURCHASE AND/OR USE OF ANY OF THE SERVICES CONSTITUTES YOUR AGREEMENT TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE. IF YOU DO NOT AGREE, YOU SHOULD IMMEDIATELY CEASE ALL USE OF THE SERVICES. YOU MAY ALSO ELECT TO PURCHASE ADDITIONAL SERVICES FROM OUR AFFILIATES, PARTNERS AND/OR OTHER THIRD PARTIES, WHICH MAY HAVE THEIR OWN TERMS OF USE AND/OR SERVICE AGREEMENTS, AND IT IS YOUR OBLIGATION TO REVIEW, ACCEPT AND ABIDE BY THOSE TERMS OF USE AND/OR SERVICE AGREEMENTS OR OTHER RELATED TERMS AND CONDITIONS, AS WELL AS THIS AGREEMENT.
SOME OF THE SERVICES ARE DELIVERED ELECTRONICALLY, AND MAY INCLUDE ELECTRONIC TRANSACTIONS. BY ACCESSING AND/OR USING THE SERVICES, YOU AGREE THAT YOU WILL BE BOUND BY ANY ELECTRONIC SUBMISSIONS, COMMUNICATIONS OR TRANSACTIONS MADE USING YOUR CREDENTIALS (DEFINED BELOW), INCLUDING YOUR ACCEPTANCE OF THIS AGREEMENT, AND YOU CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM US, INCLUDING, BUT NOT LIMITED TO, NOTICES OF CANCELLATION AND RENEWALS, POLICIES, CONTRACTS AND APPLICATIONS.
1. CHANGES TO THIS AGREEMENT
We reserve the right, in our sole discretion, to change, modify and/or revise this Agreement (including any Annex) at any time. Any such changes are effective immediately upon our posting of the amended Agreement or other notice to you. You agree that your continued use of the Services following such posting constitutes acceptance of the Agreement as amended. Note that when we add or modify a Premium Service (defined below), we may modify this Agreement with respect to such Premium Service. If you have the Agreement cached on a browser, the applicable Agreement is the most recent version of the Agreement that appears on a non-cached browser. You should review the Agreement on our Platforms (defined below) frequently.
2. THE SERVICES
The Services include our written and digital publications and materials, websites (including, but not limited to, tradesmith.com and finance.tradesmith.com), mobile applications and all other online and other platforms (collectively, the “Platforms”), all Content (defined below) displayed on or delivered through the Platforms, and memberships (collectively, the “Services”). “Content” means data, information, research, e-letters, newsletters, digests, articles and blogs, news aggregate services, emails, images, graphs, videos, podcasts, webinars, conferences, books, audio (including, but not limited to, access to conference calls), software, analytic tools, and any visual, audial or digital content made available on or through a Platform. The Services include certain Services provided free of charge (“Free Services”) as well as Services for which you must pay a one-time fee, subscription fee, maintenance fee or other fee in order to have access, including, but not limited to, premium Content and memberships (collectively “Premium Services”). The terms of this Agreement apply to both Free Services and Premium Services (except where indicated below that the relevant terms apply only to a designated Premium Service). For the avoidance of doubt, this Agreement applies to Services that are made available on a Platform that may be accessed only by a User to whom we have issued Credentials (defined below), as well as those Services made available by email, through Platforms that do not require Credentials, or through other processes.
This Agreement applies to all Services, whether purchased or used separately, or as part of a membership package, or any solution or bundled package of Services. If you purchase or use Services that are sold or otherwise provided together as a solution or bundled package (as opposed to your purchasing or using Services separately), termination of any part of the Services will result in the termination of all Services provided as part of the solution or bundled package. See the Section 12 for additional details on this subject.
3. DISCLAIMERS CONCERNING THE CONTENT WE PROVIDE
You acknowledge and agree to the following:
(i) TradeSmith is a publisher of financial information, not an investment adviser. We rely upon the “publisher’s exclusion” from the definition of investment adviser under Section 202(a)(11)(D) of the Investment Advisers Act of 1940 and corresponding state securities laws. We do not provide personalized or individualized investment advice. Any information provided as part of the Services is impersonal and not specific to any person’s investment needs. You acknowledge and agree that no Content published or otherwise provided as part of any Service constitutes a personalized recommendation or advice regarding the suitability of, or advisability of investing in, purchasing or selling any particular investment, security, portfolio, commodity, transaction or investment strategy. To the extent that any of the Content may be deemed to be investment advice or recommendations in connection with a particular security, such information is impersonal and not tailored to the investment needs of any specific person;
(ii) None of our personnel, including, but not limited to, editorial staff, employees or independent contractors (collectively, “Our Representatives”), will provide you with personalized advice regarding the value or suitability of, or advisability of investing in, purchasing or selling, any particular investment, security, portfolio, commodity, transaction, investment strategy or any other matter, and you further agree not to request or contact us for such advice;
(iii) From time to time the Services provide the opinion and commentary of Our Representatives, as well as opinion and commentary of third parties that are not controlled by TradeSmith, including, but not limited to, interviewees, guests, analysts and other third-party Content providers (collectively, “Outside Contributors”), as well as opinions and commentary provided in the products and services of our affiliates. The Services may contain opinions and commentary with regard to investments that may differ from opinions and commentary provided by and in other Services, Outside Contributors and/or our affiliates. The Services and/or Content are not to be used or construed as a recommendation or offer to buy or sell, or a solicitation of an offer to buy or sell, any security, company, financial product or instrument, or to participate in any particular investment strategy, by any of the TradeSmith Entities (defined below) or any third party. The Services and all Content are for informational purposes only and are not intended to provide you with tax, legal, investment or accounting advice. None of TradeSmith’s Entities shall be liable for any investment decisions based upon or results obtained from the Services and/or Content. Trading in investments involves risk and volatility, and any of the investments discussed in the Services may lose their value after purchase. Past investment results are not necessarily indicative of future performance;
(iv) Although we have certain trading restrictions for Our Representatives relating to investments or securities that are recommended in the Services, from time to time, one or more Outside Contributors or their affiliates may have a position in the investment or securities written about in the Services. In cases where the position is held at the time of publication, Outside Contributors may make a related disclosure; however, TradeSmith has no duty or obligation to investigate or determine whether Outside Contributors or their affiliates hold a position in an investment or security written about in the Services or to ensure that Outside Contributors make any such disclosure. In addition, Outside Contributors may be subject to certain restrictions on trading for their own account. In addition, certain of Our Representatives and other persons from our affiliates may, from time to time, have positions in, or buy or sell, the investments, securities or derivatives thereof that are referenced in the Content and may take positions inconsistent with the views expressed therein;
(v) Where Services and/or Content provided by TradeSmith consists of pricing or performance data, such data has been obtained from third-party sources reasonably believed to be reliable. However, the accuracy, completeness or timeliness of any such data or data calculations are not guaranteed by the Third-Party Providers (defined below) of such data or by TradeSmith, or any other third party. You acknowledge and agree that we do not have control over the quality, accuracy, completeness, veracity or legality of Content provided by Third-Party Providers and Outside Contributors;
(vi) From time to time, reference may be made in our marketing materials to prior articles and opinions we have published. These references may be selective, may reference only a portion of an article or recommendation, and may not be current. As markets change continuously, previously published information and data may not be current and should not be relied upon;
(vii) When U.S., international, cryptocurrency and/or other similar exchanges are open, any quotes that we may provide through our Platforms are delayed (other than those obtained through any real-time quote services we make available to users of certain Services). When such exchanges are not open, quotes are only current as of the close of the last day of trading. You acknowledge and agree that neither TradeSmith nor any Third-Party Provider of these quotes or related data shall be liable to you or any third party for any damage or loss resulting from your reliance or trading on the quotes, information or data contained or referenced in the Content or Services.
(viii) To the extent any of the Services involve a model portfolio of investments, such portfolio provides investment ideas and/or provides information regarding investments, and is chosen by Our Representatives or Outside Contributors in accordance with our or their stated investment strategy and is for informational purposes only. Your actual results may differ from results reported for the portfolio for many reasons, including, but not limited to, trading commissions or pricing differences due to timing of a purchase or sale of an investment in the portfolio; and
(ix) The information, research and opinions and other Content that TradeSmith provides as part of the Services are obtained or derived from sources believed to be reliable, but we cannot guarantee their accuracy and completeness nor the opinions based thereon. You should not rely solely upon such information, research and opinions for purposes of transacting securities or other investments, and you are encouraged to conduct your own research and due diligence, and to seek the advice of a qualified investment professional before you make any investment. None of the information provided as part of our Services constitutes, or is intended to constitute, a recommendation by us of any particular security or other investment or trading strategy or a determination by us that any security or other investment or trading strategy is suitable for any specific person. Investing in securities or other investments, including those chosen in any of TradeSmith’s model portfolio products or in any of the other Services, is speculative in nature and involves substantial risk of loss of the money invested.
4. CONTENT
We reserve the right to change, modify or discontinue any Content or any portion or feature of the Services. Such changes may include, but are not limited to, adding or removing particular Outside Contributors or Our Representatives, ceasing to provide access to a Service (and/or providing an alternative Service to you as a replacement), or changing the terms of engagement for a Service. We may make these changes or modifications at our sole discretion, either temporarily or permanently, at any time or from time to time, with or without notice to you. You agree that TradeSmith shall not be liable to you or any third party for any such change or modification of the Content and/or Services and that your continued use of the changed or modified Content and/or Services, and/or continued access to the changed or modified Content and/or Services, constitutes your acceptance of any such changes or modifications.
Certain Content or other features of the Services may also have their own specific terms and conditions that you agree to when you sign up for, or use, that particular product, function, or service (“Specific Terms of Service”). Specific Terms of Services may be described in an Annex to this Agreement and/or may be provided to you through the Services at the time you elect to sign up for, or use, that particular Service. Each Specific Terms of Service supplements and is made part of this Agreement, but if any term of this Agreement expressly conflicts with any term of a Specific Terms of Service, the conflicting term in the Specific Terms of Service will control but only with respect to the applicable Service. All other terms and conditions in both this Agreement and the Specific Terms of Service will remain in force.
5. LICENSE; USER REPRESENTATIONS AND WARRANTIES
A. LICENSE TO USE THE SERVICES
TradeSmith grants to you a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access and use the Services, and to use the Content provided within each Service, in each case solely as expressly permitted hereunder and solely for your own personal, non-commercial purposes. Your right to use the Content is limited to downloading and/or printing one (1) copy of any Content for your own personal, non-commercial use. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You acknowledge and agree that you do not acquire any ownership rights by accessing or using the Services or Content. In no event shall you use any Content available through the Services for any other purpose, or provide access to any Service, or copy, disclose, share or redistribute any such Content to any third party for any other use. TradeSmith reserves all rights not expressly granted in and to the Services and/or the Content.
B. USER REPRESENTATIONS & WARRANTIES AND USE RESTRICTIONS
In consideration of your use of the Services and/or the Platforms, you hereby represent and warrant as follows (whereby you agree that your failure to perform these responsibilities shall be deemed a material breach of this Agreement):
i. You can form legally binding contracts under applicable law and are not a person barred from receiving the Services under the laws of the United States or other applicable jurisdictions;
ii. You are at least eighteen (18) years old or the age of majority in the jurisdiction in which you reside so that you can form a binding contract with TradeSmith, and are responsible for supervising the activities of any under-age User;
iii. To your knowledge, there is no action, proceeding or investigation pending or threatened which questions, directly or indirectly, the validity or enforceability of this Agreement;
iv. Entering into this Agreement or otherwise purchasing, using or accessing the Services will not conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default or result in a termination of, any agreement or instrument to which you are a party;
v. You have taken all actions required by applicable law and have obtained all consents which are necessary to authorize or enable you to enter into this Agreement and/or purchase, use or access the Services;
vi. You will provide/maintain your User Account with current, accurate and updated information for registration purposes and for our use in contacting you regarding the Services and otherwise for notices and/or updates from us, and you will check such points of contact frequently throughout the term of this Agreement for notices and/or updates from us;
vii. You shall not use the Services in any manner that either directly or indirectly infringes any rights of TradeSmith or any third party;
viii. Your use of the Services will in all respects conform to all applicable laws, rules and regulations and you accept sole and absolute liability for harm caused by the wrongful use of the Services;
ix. You agree not to engage in any of the following prohibited activities: (A) copying, republishing, re-purposing, distributing or disclosing any part of the Services and/or Content, in any medium, including, but not limited to, by any automated or non-automated “scraping”; (B) using any automated system, including, but not limited to, “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the TradeSmith servers than a human can reasonably produce in the same period of time by using a conventional online web browser (except that TradeSmith grants the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (C) transmitting spam, chain letters or other unsolicited communications; (D) attempting to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running the Services; (E) taking any action against condition(s) that imposes or may impose an unreasonable or disproportionately large load on our infrastructure based on our sole discretion; (F) uploading invalid data, viruses, worms or other software agents through the Services; (G) collecting or harvesting any User’s personal information from the Services; (H) using the Services for any commercial solicitation purposes; (I) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (J) interfering with the proper working of the Services; (K) restricting or inhibiting any other User from using the Services, including, but not limited to, by means of “hacking” or blocking access to any portion of our Platform; (L) accessing any Content on the Services through any technology or means other than those provided or authorized by the Services; (M) bypassing the measures we may use to prevent or restrict access to the Services, including, but not limited to, features that prevent or restrict use or copying of any Content or enforce limitations on use of the Services or the Content therein; (N) disclosing or sharing Credentials; (O) modifying, adapting, sublicensing, translating, selling, reverse engineering, decompiling or disassembling any parts of the Services; (P) framing or linking to any information or Content on the Services; (Q) posting or submitting any inaccurate, incomplete or false biographical information or another person’s information; or (R) posting or submitting any material that is unlawful, illegal, defamatory, offensive, discriminatory, threatening or obscene as determined by TradeSmith in its sole discretion;
x. You are solely responsible for all statements made and acts or omissions that occur on your User Account;
xi. A maximum of three simultaneous log-ins are allowed per User Account. This simultaneous login limit applies to the total number of logins at any given time regardless of device type (e.g., computers, tablets, mobile devices, etc.).
xii. You agree that you are solely responsible for contacting us, consistent with and pursuant to the terms of this Agreement, with notice of your decision to cancel or discontinue the Services. IF NO SUCH NOTIFICATION IS GIVEN TO US BY YOU, WE WILL ASSUME YOU ARE SATISFIED WITH AND ACCEPT ALL SERVICES, AND WE WILL BILL ANY RELATED SERVICE FEES DIRECTLY TO YOUR PAYMENT ACCOUNT (DEFINED BELOW).
We may permanently or temporarily limit, condition, terminate or suspend your access to the Services or any features thereof for any reason, with or without notice and without any liability to you or any third party, including if in our sole determination you breach or violate any provision of this Agreement, commit fraud or other abuse in your use of the Services, if we believe that such suspension or termination is necessary for the security of the Services, Content or any User Data (defined below), or for no reason.
You are solely responsible for your interactions, if any, with other Users. We reserve the right, but have no obligation, to monitor communications and disputes between you and other Users. TradeSmith shall have no liability for your interactions with other Users, or for any User’s action or inaction. TradeSmith shall have no obligation to you to enforce this Agreement against any other User.
You shall be responsible for obtaining the requisite communication lines and internet connections to interface with the Services and you shall bear all risks of failing to make concurrent modifications to your devices and equipment.
You expressly waive any and all rights against TradeSmith and hold us harmless in connection with any claims relating to any action taken by us as part of our investigation or remediation of a suspected violation or result of our conclusion that a violation of this Agreement has occurred, including, but not limited to, the suspension or termination of your User Account.
6. REGISTRATION AND PRIVACY
A. REGISTRATION; CONFIDENTIALITY
In order to access certain Services, you must apply and register for an account for the Service (“User Account”). When you register for a User Account, you will be issued a user ID, associated password, or other login credentials (“Credentials”), which will be assigned specifically to you. TradeSmith, in its sole discretion, may deny User Account registration to you for any or no reason.
Unless otherwise provided in this Agreement, you may only activate one (1) User Account. TradeSmith may rely on the accuracy of such information provided by you in your User Account and on any activity on the Service conducted through the use of Credentials.
You are solely responsible for maintaining strict confidentiality of your Credentials and ensuring that Credentials are used only by you and not used by or disclosed to any third party. All Users must keep their User Account passwords secure and we encourage you to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols). You must immediately notify TradeSmith by calling us or emailing us at [email protected] (or other email address we designate) when you become aware of any possible unauthorized use of your User Account, or any possible breach of security, including loss, theft or unauthorized disclosure of your Credentials. Upon receipt of the foregoing notice, TradeSmith may, in our sole discretion, undertake commercially reasonable efforts to suspend or disable the applicable Credentials and you shall be responsible for any actions taken prior to such notification. You are solely responsible for all activities that occur under your User Account whether by you or any other person who gains access to the Service by use of your Credentials or otherwise as a result of your failure to use reasonable security precautions. You agree that in no event shall TradeSmith be responsible for any losses directly or indirectly caused by the unauthorized use or misuse of your User Account or Credentials. You are not permitted to transfer to or re-sell your use of or access to the Services or Content to any third party.
B. PRIVACY
Please see our Privacy Policy which describes how we collect, use and share your personal information and which sets forth our policies regarding how we and our affiliates, partners, vendors and service providers may contact you.
7. TERMS APPLICABLE TO PREMIUM SERVICES
THE FOLLOWING PROVISIONS APPLY ONLY TO PREMIUM SERVICES. YOU SHOULD READ THESE TERMS CLOSELY BEFORE YOU SUBSCRIBE TO A PREMIUM SERVICE.
A. SUBSCRIPTIONS, FEES AND PAYMENTS
Premium Services are made available on a subscription basis. As consideration for the Premium Services you purchase you agree to promptly pay TradeSmith all applicable prices and fees (collectively, the “Fees”) as designated in the related order process, with such Fees subject to change as provided in this Agreement. All Fees are due immediately or upon ordering and are non-refundable, except as otherwise expressly provided in this Agreement, as required by applicable law, or as such Fees are billed by us under an invoice or order confirmation for Premium Services issued to you that expressly permits payment within thirty (30) days (or other time period if so expressly provided) after we have sent you such invoice or order confirmation.
We reserve the right, in our sole discretion, to change or modify the Fees, charges or other conditions for use of the Premium Services upon reasonable notice to you. Unless otherwise indicated in your invoice, you are responsible for the payment of, and accordingly agree to promptly pay, all applicable taxes (other than based on TradeSmith’s income) relating to the Services or payments made by you hereunder including, but not limited to, sales tax, use tax, value added tax (“VAT”), and other taxes and governmental charges, whether federal, state or foreign as well as all duties and charges on your payment for the purchase of Premium Services arising from any Fees. All payments of Fees shall be made in U.S. dollars. Taxes will be calculated based on where you receive services determined by your User Account address. All taxes charged will be reflected in your invoice upon payment.
Our transaction processing is supported only in U.S. dollars and the pricing displayed during the checkout process will be an estimated conversion price at the time of purchase. If the currency of your bank or credit card account is not in U.S. dollars, you may be charged exchange rate conversion fees by your bank or credit card company. In addition, due to time differences between (i) the time you complete the checkout process; (ii) the time the transaction is processed; and (iii) the time the transaction posts to your bank or credit card, the conversion rates may fluctuate and we make no representations or warranties that (a) the amount submitted to your bank or credit card for payment will be the same amount that is posted to your bank or credit card statement or (b) the estimated conversion price will be the same as either the amount processed or the amount posted to your bank or credit card statement, and you agree to waive any and all claims against TradeSmith based upon such discrepancies (including any and all claims for a refund based on the foregoing). You acknowledge and agree that you may be charged VAT based on the country indicated in the User Account’s address information associated with your account.
Unless otherwise stipulated in the related order process, payment for the Premium Services are to be made via a charge to your credit card, bank account, or other payment methods we deem acceptable that you provide to us (the “Payment Account”). You are solely and absolutely responsible for any information related to the Payment Account that you provide to TradeSmith and must promptly inform us of any changes or updates to the method of payment. By submitting an order to purchase a Premium Service, you authorize us to charge the order to the Payment Account or to otherwise immediately bill you for such Premium Services. You acknowledge and agree that unless otherwise expressly stated in the order process or otherwise changed afterwards in accordance with the applicable process, all annual, monthly or other recurring Fees related to the Premium Services or otherwise referenced in this Agreement are to be recurring transactions that will be billed on an ongoing basis until such Premium Services are terminated in accordance with this Agreement. If you have provided billing information sufficient for automatic billing, then we will bill you automatically in accordance with the applicable billing frequency. You are obligated to pay for the full amount of the Agreement, even if such full amount is scheduled to be paid in installments. If you elect to pay for the Premium Services in installments, provided such a payment schedule is expressly permitted and accepted by us, all installments must be received on or before the applicable due date.
You agree to pay all Fees and other charges incurred in connection with your Payment Account (including, but not limited to, any applicable taxes) at the rates in effect when the charges were incurred. You agree to pay all amounts due upon our demand. Without limiting any of TradeSmith’s rights hereunder, should any Fee payment become delinquent, we may suspend or cancel your Services; provided, however, related charges will continue to accrue. You acknowledge and agree that TradeSmith is not responsible whatsoever for any effect the suspension of Services might have on you or any third party. If TradeSmith provides any Service discount to you and you default on payments or obligations as outlined herein, TradeSmith may rescind all discounts and require full payment for the Services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less. TradeSmith further reserves the right to refer any amounts owed hereunder to a third party for collection in the event of default. In the event your account is sent to collection, you agree to pay all costs of collection, including costs, litigation and attorneys’ fees. A collection fee may be charged for all dishonored checks. Moreover, an additional fee may also be assessed for the following reasons: (i) late payment; (ii) payment with insufficient funds; (iii) denied or invalid credit card number; or (iv) the re-starting or reinstating of Services terminated for nonpayment. TradeSmith will re-start or reinstate any such Service in our sole and absolute discretion and subject to our receipt of the applicable Fee.
If you pay for the Services by credit card or other applicable method, you permanently and irrevocably waive any and all right to enact an improper “chargeback” (that is, a disputed, reversed or contested charge with the applicable bank card, credit card or other payment method) against these Fee payments for any reason whatsoever against TradeSmith. If for any reason TradeSmith is unable to charge your Payment Account for the full amount of the Fee owed for the Services provided, or if we receive notification of an improper chargeback, reversal, payment dispute or are charged a penalty for any Fee previously charged to your Payment Account, you agree that we may pursue all available lawful remedies in order to obtain payment, including, but not limited to, immediate cancellation, without notice to you, of any or all of your Services. We also reserve the right to charge you reasonable “administrative fees” or “processing fees” for (i) additional tasks we may perform outside the normal scope of the Services; (ii) additional time and/or costs we may incur in providing the Services, and/or (iii) your noncompliance with this Agreement (as determined by us in our sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to: (i) customer service issues that require additional personal time or attention; (ii) recouping any and all costs and fees incurred by TradeSmith as the result of improper chargebacks or other payment disputes brought by you, your bank or other payment method processor. These administrative fees or processing fees will be billed to the Payment Account you have on file with TradeSmith.
Information regarding current subscription rates for our Premium Services can be found on the applicable Premium Service’s webpage and/or by contacting our Customer Service Department at 866-385-2076 Monday through Friday between the hours of 9:00 a.m. and 5:00 p.m ET.
YOU UNDERSTAND AND AGREE THAT ALL FEES ARE NONREFUNDABLE AND THAT TRADESMITH MAY CHANGE ANY PRICE, FEE, RATE OR PLAN AT ANY TIME UPON NOTICE TO CUSTOMER IN ACCORDANCE WITH THIS AGREEMENT.
B. TERM; SUBSCRIPTION RENEWALS
Your subscription will continue for the period referenced during registration (the “Term”) and renew automatically at the end of the Term, unless you notify us that you are not renewing your subscription by calling our Customer Service Department at 866-385-2076 Monday through Friday between the hours of 9:00 a.m. and 5:00 p.m. ET, by emailing us at [email protected] (or other email address we designate) or by another designated cancellation method. You must notify us by using one of the foregoing methods at least one day before the renewal date in order to avoid being charged for the renewal of your subscription. You may not notify us of a decision not to renew your subscription by any other means. No action by you or your failure to notify us as stated above will result in the then-applicable monthly, periodic or annual subscription Fee being billed automatically to your Payment Account. Please note that in connection with recurring billing for subscription renewals for such Premium Services, you authorize TradeSmith to bill the payment method(s) associated with your Payment Account, regardless of whether information associated with your subscription has changed, such as the expiration date of the credit card with which you initially subscribed.
Services to which you subscribe to on a recurring basis will automatically renew on a recurring basis until the Agreement is properly terminated in accordance with its terms. You agree that if you are enrolled in or otherwise utilizing our automatic renewal service, we will attempt to renew your service at some point less than ninety (90) days prior to its expiration with notice to you. You further agree that, to turn off the automatic renewal service for any of your Services, you must call our Customer Service Department by telephone at 866-385-2076 Monday through Friday between the hours of 9:00 a.m. and 5:00 p.m. ET, or you may be able to turn off the automatic renewal service through another method designated by us. You acknowledge and agree that the renewal price may be higher or lower than the price you paid for the then current term of the Services, and that we are authorized to charge your Payment Account for the renewal of the Services. In any event, you are solely and absolutely responsible for the credit card or payment information you provide to TradeSmith and must promptly inform us of any changes thereto (e.g., change of expiration date or account number). You acknowledge and agree that TradeSmith may extend the expiration date on your credit card on file with us in order to protect against unwanted expiration of your Services and to allow for the automatic renewal thereof.
In the event that you are not enrolled in our automatic renewal service, or have opted out of the automatic renewal service, and want to renew your Services, you acknowledge and agree you are responsible for actively renewing your Services and you further assume all risk and consequences of not enrolling in the automatic renewal service. If any Service is not successfully renewed prior to the expiration of its then current Term, all your rights to such Service will terminate, and we will have no obligation to allow you to renew a Service once its expiration date has passed. You are solely and absolutely responsible for ensuring the Services are renewed. We shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the Services whether due to you, us or a third party. In order to process a renewal under our automatic renewal service, we may receive information from financial institutions or use third-party vendors for the purpose of updating the expiration date and account number of your credit card or other payment method on file relating to you Payment Account. Such financial institutions and third-party vendors maintain relationships with various credit card issuers and may be able to provide us with the updated information relating to your Payment Account by comparing the information we have on file with the information the financial institution or third-party vendor has on file. By using our automatic renewal service, you acknowledge and agree that we may share your credit card or other payment method information relating to you Payment Account with such financial institutions or third-party vendors for the purpose of obtaining any updates to your credit card expiration date, account number or any other information relating to your Payment Account.
C. CANCELLATION; REFUNDS
To cancel certain purchases of TradeSmith products or Free Services, you may cancel by changing your preferences in your User Account, contacting us by email at [email protected], or by another designated cancellation method. Premium Services may be cancelled as set forth below.
During any free trial portion of your subscription, you may cancel your subscription to the Premium Service at any time and not be billed by notifying us as described above. You must cancel one (1) day before the free trial period expires in order to avoid being converted to a paid subscription.
When your initial subscription commences (which occurs at the expiration of your free trial, or if you are not receiving a free trial, upon your registration for a subscription) your Payment Account will be billed the applicable subscription Fee and your paid subscription will commence. Once your initial subscription commences, we do not provide refunds for initial orders or recurring monthly payments. If you cancel your monthly subscription for a specific Premium Service, you will not receive a refund or reimbursement of your monthly subscription Fee; however, you will not be charged any future monthly subscription Fees relating to such Service. If you are a User for a Term longer than a month (including, but not limited to, annual subscriptions) and you cancel within the first thirty (30) days of your initial subscription, you may receive a refund of your subscription fee minus the equivalent of one-month pro-rated charge. Please note that if you cancel your subscription at any time after the first thirty (30) day period of your initial subscription for which the Term is longer than one (1) month, you will not be entitled to any refund or reimbursement on account of the cancellation of your subscription, regardless of whether you have used your subscription.
You can cancel your subscription by calling our Customer Service Department at 866-385-2076 Monday through Friday between the hours of 9:00 a.m. and 5:00 p.m. ET or by any other designated cancellation method. You may not cancel a subscription by any other means. If you are entitled to a refund, we will seek to credit your Payment Account within seven to fourteen (7-14) business days following your mandatory notification to us.
If you order any Services by telephone and do not agree to be legally bound by this Agreement at that time, you must notify TradeSmith within seventy-two (72) hours from the time that TradeSmith has sent you an introductory e-mail to your User Account e-mail address on record, that you desire to cancel such Services, whereby the Services will be cancelled, and a refund of any payments or Fees already paid to Us with respect to the order of the Services will be issued with no further obligation by either us or you.
8. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
Except as otherwise set forth herein, all right, title and interest in and to: (A) the Services and the Content; (B) all registered and unregistered trademarks, service marks and logos; (C) all trade secrets, proprietary information, our confidential information, and know-how; (D) all registered and unregistered copyrights including, but not limited to, any text, video, audio, forms, images, displays, and software; (E) Processed Data (defined below); (F) Activity Metadata (defined below), (G) Feedback (defined below), and (H) all other intellectual property, proprietary rights or other rights related to tangible or intangible property which are used, developed, comprising, embodied in or practiced in connection with any of the Services identified herein (collectively, “TradeSmith Intellectual Property Rights”) are owned by TradeSmith and/or its Outside Contributors, and you agree to make no claim of interest in or ownership of any such TradeSmith Intellectual Property Rights. You acknowledge and agree that no title to the TradeSmith Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in any of the Services, other than the rights expressly granted in this Agreement. The right, title, and interest to the User Data is owned by you.
Except as otherwise provided herein, you may access and use the Content, and download and/or print out one copy of the Content solely for your personal, noncommercial use, provided that any material copied remains intact and includes the following notice: “Copyright [applicable year]. TradeSmith. All rights reserved.” Any other copying, distribution, storing, or transmission of any kind, or any commercial use of the Content, is prohibited without our prior written permission. That means you may not sell, transfer or barter your subscription, our Services or Content, or any individual publication. You acknowledge and agree that you do not acquire any ownership rights in the Content by using the Services. You agree not to create any modification or derivative work based on or containing the Services and/or Content.
“TradeSmith” and certain other marks used on the Services are trademarks and/or service marks of TradeSmith. All other trademarks, service marks, and logos used on the Services are the trademarks, service marks, or logos of their respective owners.
If you provide any feedback or suggest any changes or modifications to any Service (“Feedback”), such Feedback shall be deemed non-confidential and TradeSmith will own all right, title, and interest in, and shall have all rights to use, such Feedback. You hereby irrevocably assign to us all right, title, and interest in and to the Feedback and agree to provide us any assistance we may require to document, perfect and maintain our rights in the Feedback. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Service. You agree that any derivative or transformed data derived by us in whole or part from User Data that does not include your personal information (“Processed Data”) shall be the exclusive property of Trademith, and nothing herein shall limit our use or exploitation thereof.
You acknowledge and agree that we have the right, but do not have the obligation, to access, archive or monitor metadata generated by your activity in using the Services, including as reasonably necessary to operate, maintain, improve and develop the Services and provide the Services to you or other Users, including to ensure service quality, to evaluate and maintain the Services and the security thereof, and to evaluate compliance with this Agreement, applicable laws, rules or regulations (“Activity Metadata”).
If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, please notify us as set forth in our DMCA Policy.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES (AND ANY RELATED CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY CONTENT PROVIDED BY OUTSIDE CONTRIBUTORS) IS SOLELY AND ENTIRELY AT YOUR OWN RISK AND THAT THE SERVICES (AND ANY RELATED CONTENT) ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TRADESMITH, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, OUTSIDE CONTRIBUTORS, THIRD-PARTY PROVIDERS, CONTRACTORS, SUPPLIERS, LICENSORS, ADVERTISERS AND AGENTS (COLLECTIVELY, THE “TRADESMITH ENTITIES”) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE
THE TRADESMITH ENTITIES DO NOT WARRANT AND ACCEPT NO LIABILITY THAT YOUR USE OF THE SERVICES AND/OR ANY CONTENT OBTAINED THEREBY WILL BE COMPLETE, ADEQUATE, TIMELY, ACCURATE, UNINTERRUPTED, ERROR- FREE OR SECURE, OR THAT THE SERVICES OR THE SERVERS ON WHICH THE SERVICES ARE HOSTED ARE FREE OF VIRUSES, WORMS, MALICIOUS CODE, TROJAN HORSES, MALWARE OR OTHER HARMFUL COMPONENTS. THE TRADESMITH ENTITIES DO NOT WARRANT AND ACCEPT NO LIABILITY FOR ANY SOFTWARE DOWNLOADED FROM, OR USED AS A COMPONENT OF, THE SERVICES. NO OPINION, ADVICE OR STATEMENT OF THE TRADESMITH ENTITIES, WHETHER PROVIDED THROUGH THE SERVICES OR OTHERWISE, SHALL CREATE ANY WARRANTY. TRADESMITH FURTHER DISCLAIMS ALL WARRANTIES THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, AND TRADESMITH DOES NOT MAKE ANY GUARANTEE OR WARRANTY AS TO ANY RESULTS (INCLUDING, BUT NOT LIMITED TO, ANY INVESTMENT RESULTS, RETURNS, PERFORMANCE OR OTHER OUTCOMES) THAT MAY BE OBTAINED FROM THE USE OF, IN CONNECTION WITH OR IN FULL OR PARTIAL RELIANCE UPON, THE SERVICES.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 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.
10. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT THE TRADESMITH ENTITIES ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, THE SERVICES AND/OR ANY CONTENT CONTAINED THEREIN, INCLUDING, BUT NOT LIMITED TO, ANY CONTENT PROVIDED BY OUTSIDE CONTRIBUTORS, FOR ANY LOST PROFITS, LOSS OF USE OR OTHER ECONOMIC ADVANTAGE OR LOSS OF DATA, WHETHER SUCH DAMAGE IS FORESEEABLE OR NOT AND WHETHER OR NOT THE TADESMITH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR AVOIDANCE OF DOUBT, DAMAGES ARISING UNDER THE SECTION ENTITLED “INDEMNIFICATION” (INCLUDING, BUT NOT LIMITED TO, DAMAGES TO WHICH A PARTY IS ENTITLED TO INDEMNIFICATION UNDER SUCH SECTION THAT SUCH PARTY SUFFERS IN CONNECTION WITH THIRD-PARTY CLAIMS FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES) ARE DEEMED TO BE DIRECT DAMAGES OF THE INDEMNIFIED PARTY. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING IT. YOU AGREE THAT, WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL TRADESMITH’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION — WHETHER IN CONTRACT, TORT OR OTHERWISE — EXCEED THE TOTAL AMOUNT YOU PAID TO US FOR ACCESS TO AND USE OF THE SERVICES DURING THE CURRENT CALENDAR YEAR OF YOUR SUBSCRIPTION.
The commencement of any action or proceeding on any claim regarding the Services must be brought by you within one (1) year from when the claim arose. The foregoing limitation shall not apply to actions brought by you for indemnification.
11. INDEMNIFICATION
You agree to indemnify, defend and hold harmless the TradeSmith Entities, their current and former officers, directors, employees, agents and representatives and their successors and assignees from and against any and all liabilities, claims (including, but not limited to, third-party claims), damages, losses, costs (including reasonable attorneys’ fees), or other expenses associated with or incurred as a result of or from:
If any Service which is subject to this indemnity is claimed, alleged or determined to infringe a patent issued to, or a copyright registered by, or either owned by or licensed to, any third party, TradeSmith shall have the right and option to modify the Services to avoid such infringement. If, in our sole opinion, such modification cannot practicably be accomplished to avoid such infringement, we shall have the right to terminate this Agreement without liability on the part of any TradeSmith Entity to you. In the event your purchase of a Premium Service is terminated under this paragraph, we will refund to you the full price for any unused portion of such Premium Service. In such an event, TradeSmith shall have the right in our sole discretion to elect to defend against or to settle any such third-party claim or third-party suit. You shall, at TradeSmith’s request, but at our expense, cooperate with us and provide assistance and information with respect to any such claim or suit. We shall have the right to select counsel, at our expense, to defend against any such claim or suit. If you shall also elect to be represented by your chosen counsel, you shall pay the fees and expense of such counsel. You must receive TradeSmith’s prior written consent regarding, and in advance of, any related settlement.
This defense and indemnification obligation shall survive this Agreement and your use of the Services.
12. TERMINATION
A. GENERAL
Without limiting the foregoing, TradeSmith may terminate this Agreement immediately for any or no reason and with or without notice to you (including by terminating your User Account, Credentials and/or access to any Service) if: (i) TradeSmith reasonably believes that the Services are being used in violation of this Agreement or applicable law; (ii) TradeSmith believes your use of any Service interferes with the normal operations of the Service or creates any threat to the security of the Service, Platform, or the Content of any other User of the Service; (iii) TradeSmith becomes aware of what it, in its sole discretion, deems a credible claim that the Service or any portion thereof infringes upon the intellectual property rights of a third party; (iv) TradeSmith is required to do so by law; (v) in the case of Free Services, TradeSmith reserves the right to terminate User Accounts related to Free Services that remain idle for a period of thirty (30) days or more; or (vi) in the event you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any Fees payable to TradeSmith. If you have questions about a payment made to us, contact our Customer Service Department by telephone at 866-385-2076, Monday through Friday between the hours of 9:00 a.m. and 5:00 p.m. ET before filing a chargeback. TradeSmith reserves our right to dispute any chargeback. For the avoidance of doubt, if you purchase Premium Services which are sold together as a solution or bundled package of Services, any termination relating to any one Service or bundled package will terminate all Services included in such solution or bundled package, provided, however, that we may, in our sole discretion and subject to your agreement to be bound by this Agreement and to pay the applicable Fees, allow you to convert certain Services included in the bundled Services to stand-alone Services.
Without limiting Section 7(C), you may terminate the Agreement at any time, except that such termination does not relieve you from your obligation to pay any Fees for Premium Services for the remainder of the applicable Term.
B. EFFECT OF TERMINATION
Upon the effective date of termination, TradeSmith will no longer provide the Services to you, any licenses granted to you will immediately terminate, and you must cease using such Services immediately, and all rights and obligations of the parties hereunder shall terminate, except that Sections 2, 3, 4, 5.B, 6.B, 8, 9, 10, 11, 12, 13, 15 and 17, as well as any right or obligation in the Agreement, which, by its express terms or nature and context is intended to survive expiration or termination of this Agreement, shall survive expiration or termination of this Agreement.
User agrees that if their User Account is so terminated pursuant to Sections 12(A)(i)-(iii), the User will not attempt to establish a new User Account or otherwise engage in infringing our copyrights or other intellectual property rights under any name, real or assumed.
In order to comply with applicable law or other recordkeeping practices in the ordinary course of our business, or to otherwise enforce our rights under this Agreement, we may retain indefinitely for our records a copy of any and all User Data. We are not responsible for maintaining any records on your behalf.
13. THIRD-PARTY PROVIDERS & THIRD-PARTY SITES
TradeSmith may retain affiliates and/or other third-party service providers to assist or support us in providing the Services (including, but not limited to, any security, technology, support, legal, compliance, administrative or similar function) (each a “Third-Party Provider”).
The Services may contain links to third-party websites, advertisers, products, content, information, services or other events or activities that are not owned or controlled by TradeSmith (collectively, “Third-Party Sites”). We do not endorse or assume any responsibility for any such Third-Party Site. If you access a Third-Party Site via a link on the Platform, the inclusion of any link to a Third-Party Site on the Platform does not imply that we endorse such Third-Party Site, and your access and/or use of the link and the Third-Party Site is done at your own risk. A Third-Party Site may have its own service agreement or other related terms and conditions, and it is solely your obligation to review, accept and abide by those service agreements or other related terms and conditions. You expressly agree that TradeSmith is not responsible or liable in any way for (i) the availability or accuracy of any such Third-Party Sites or (ii) the content, terms and conditions, policies, advertising, practices or products of any such Third-Party Sites. Additionally, your dealings with or participation in the promotions of any advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that TradeSmith shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
14. DMCA POLICY
TradeSmith shall process alleged copyright infringement of Users in accordance with our Digital Millennium Copyright Act policy located at tradesmith.com/tradesmith-dmca-policy.
15. GOVERNING LAW; VENUE
This Agreement is governed under the laws of Maryland and you agree that any judicial proceeding, suit or other action relating to or arising under this Agreement, the Services or a breach of any User’s User Data, will be commenced only in a federal or state court of competent jurisdiction located in Baltimore County in the State of Maryland. You consent to the personal and exclusive jurisdiction of such court and waive the right to challenge the jurisdiction of such court on grounds of lack of personal jurisdiction or forum non conveniens, or to otherwise seek a change of venue. You agree to waive the right to trial by jury in any action that takes place relating to or arising under this Agreement or the Services. You also agree to waive the right to file a class action claim relating to or arising under this Agreement or the Services.
In the event you bring a claim against TradeSmith in a foreign jurisdiction (a court other than in Baltimore County, Maryland), TradeSmith will move the court to dismiss such claim per your acceptance of this Agreement existing at the time of your purchase of, use of, or access to the Services and your continued use of the Services as evidence of acceptance of the Agreement and this Section. The parties agree that the foregoing obligation is independent from all other obligations herein. You acknowledge that, in the event you commence a judicial proceeding in any court other than the courts in Baltimore County, Maryland as described herein, TradeSmith may incur costs and expenses, including attorneys’ fees, to enforce this provision. You expressly agree that you will reimburse TradeSmith for any such costs and expenses, including, but not limited to, attorneys’ fees incurred by us within ten (10) days of receiving a written demand from us for such reimbursement. You further agree that if you do not timely reimburse TradeSmith as previously described in this Section, you will be responsible for, and agree to pay, all costs and expenses, including, but not limited to, attorneys’ fees incurred by us in seeking to collect or recover from you the amount subject to reimbursement.
16. ADDITIONAL TERMS FOR SERVICES PROVIDED THROUGH A WEB OR MOBILE APP
With respect to any Services provided through a web or mobile app (an “App”), we grant you a limited, terminable, non-exclusive license to download and install a single copy of the App solely on your own computer or mobile device, for use solely to connect to and use the Services as permitted under this Agreement. This license is not transferable to any third party. On termination of this Agreement for any reason, including in the event you close your User Account, you will delete any downloaded or installed copies of the App.
You acknowledge that this Agreement is between TradeSmith and you, and not with the owner or operator of any app store through which the App is distributed (the “App Store Provider”). In addition to the terms of this Agreement, your use of the App and any Services provided through the App will be subject to the terms of any user agreement associated with the App Store Provider or other venue through which you downloaded or obtained the App.
Without limiting this Agreement: (a) TradeSmith is solely responsible for providing any maintenance and support services with respect to the Platform as provided in this Agreement or under applicable law, and the App Store Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App or the associated Services; (b) the App Store Provider is not responsible for any product warranties for the App or the Services. To the maximum extent permitted by applicable law, the App Store Provider will have no other warranty obligation whatsoever with respect to the App or the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be TradeSmith’s sole responsibility; (c) TradeSmith, and not the App Store Provider, is responsible for addressing any claims of you or any third party relating to the App and the Services.
TradeSmith and you acknowledge and agree that the App Store Provider is a third-party beneficiary of the provision of this Section and other provisions this Agreement applicable to the App Store Provider hereunder and upon your acceptance of the terms and conditions of this Agreement, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce such provisions of this Agreement against you as a third-party beneficiary thereof.
17. MISCELLANOUS
A. WAIVER
No waiver of any provision of this Agreement is effective unless it is in writing and signed by an authorized representative of TradeSmith. Our remedies under this Agreement are cumulative and not alternative, and the election of one remedy for a breach does not preclude the pursuit of other remedies. The failure of TradeSmith to require your performance of any Agreement provision does not affect the full right to require such performance at any time in the future. The waiver by TradeSmith of any rights arising out of any breach of any Agreement provision shall not be taken or held to be a waiver of the provision itself. Any failure by TradeSmith to enforce any of its rights under this Agreement or any applicable laws does not constitute a waiver of such right.
No party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of any rights arising out of a breach of this Agreement will constitute a waiver of rights relating to any prior or subsequent breach of this Agreement.
B. SEVERABILITY
If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law. This Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible, consistent with applicable law and consistent with the original intention of the parties, and the remaining terms and provisions will remain in full force and effect.
C. FORCE MAJEURE
Under no circumstances shall TradeSmith be held liable for any cessation, interruption, delay or failure in performance of the Services or any obligations under this Agreement resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, but not limited to, Internet failures, computer equipment failures, telecommunication equipment failures, failures of internet service providers (ISPs) or cloud-hosting providers, other equipment failures, electrical power failures, strikes, labor disputes, lockouts or boycotts, riots, terrorism, insurrections, civil disturbances, shortages of labor or materials, hurricanes, earthquakes, fire, floods, storms, natural disaster, explosions, acts of God, armed conflict, war, governmental actions, orders of domestic or foreign courts or tribunals.
D. ENTIRE AGREEMENT
This Agreement, as well as any additional TradeSmith agreements, terms and conditions, rules, policies and agreements, together with all modifications thereto, constitute the entire agreement between you and TradeSmith concerning your use of the Services and any other subject matter related to this Agreement. This Agreement supersedes and governs all prior proposals, agreements or other communications between you and TradeSmith (including, but not limited to, any prior versions of this Agreement). You may not waive, modify or supplement this Agreement, in whole or in part, except by written permission or amendment by TradeSmith.
E. TITLES AND HEADINGS; INTERPRETATION
The titles and headings of this Agreement are inserted for ease of reference only and do not affect in any way the meaning or interpretation of this Agreement. Also, in all references herein to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender and number as the text of this Agreement may require.
F. ASSIGNMENT
You may not assign or transfer, either directly or through a third party, this Agreement or any of its interests, rights or obligations hereunder, without the prior written consent of TradeSmith; provided, however, that members of Lifetime/Elite Membership (“Elite Members”) may assign this Agreement to a natural person, with prior written consent from TradeSmith provided further that such Elite Members shall provide us with written notice prior to any assignment. Any attempted assignment in violation of the foregoing provision will be null and void and of no force or effect whatsoever. We may assign our rights and obligations under this Agreement and may engage subcontractors or agents in performing our duties and exercising our rights hereunder, without notice to you or your consent. Where applicable, this Agreement is binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
G. AGENCY
This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between you and TradeSmith. No party has the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever. The relationship between you and TradeSmith is limited to the responsibilities and obligations of both parties as established in this entire Agreement.
H. NO THIRD-PARTY BENEFICIARIES
Unless otherwise provided in the Agreement, you acknowledge and agree that nothing herein, express or implied, is intended to nor is to be construed to confer upon or give to any third party or person, other than you, any interests, rights, remedies or other benefits conveyed to you herein.
I. ACCESS TO THE SERVICE FROM OTHER LOCATIONS
The Services are directed solely to individuals and entities residing in the United States. We make no representation that materials provided through the Services are appropriate or available for use in other locations. Those who choose to access the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. We reserve the right to limit the availability of the Services to any person, geographic area, or jurisdiction we so desire, at any time and in our sole discretion, and to limit the quantities of any such service that we provide.
J. NOTICE
TradeSmith may provide notifications, whether such notifications are required by law or are for marketing, to disclose changes or additions to our Services, or for other business-related purposes, to you via email associated with your User Account, written or hard copy notice, or through conspicuous posting of such notice on our Services. We reserve the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to any email address you provide us.
All mail notices from TradeSmith to you are deemed effective when: (i) sent by certified mail, return receipt requested or by Federal Express or other recognized overnight delivery service to your last known mailing address; (ii) sent via email to the email address associated with your User Account; or (iii) posted on the login page of the Website and/or any of the applicable pages linked thereto and immediately after you login to the Website. When you provide contact information to TradeSmith, you agree that we may use this information to contact you in any format or manner we choose and that we may rely on contact information provided by you to us. TradeSmith may, but has no obligation to, send a single notice by various means of delivery (e.g., email, certified mail or express mail). In no event shall TradeSmith be liable to you for choosing to send notice in one manner or format over another.
You shall give notice to TradeSmith by contacting our Customer Service Department by telephone at 866-385-2076, Monday through Friday between the hours of 9:00 a.m. and 5:00 p.m. ET or via email to [email protected].
If you are a California resident, please be advised that you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.