Last Updated on March 6, 2021
This is a legally binding agreement. Please read these terms and
conditions carefully. By clicking the button on the online
registration page or another page to accept this Agreement, you
represent that you have the full legal authority to enter this
agreement on behalf of the party identified in the registration
process, and in that capacity, you acknowledge such party’s
agreement to be bound by the terms and conditions set forth or
referenced below.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL
BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS
ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO USERS IN THE
EVENT OF A DISPUTE. USERS CAN OPT-OUT OF THE AGREEMENT TO
ARBITRATE BY CONTACTING US AT [email protected] WITHIN 30 DAYS
OF FIRST ACCEPTING THESE TERMS AND STATING THAT YOU DECLINE THE
ARBITRATION AGREEMENT. PLEASE INCLUDE YOUR FULL NAME IN YOUR
EMAIL.
This Agreement for use of the Platform is between PickMyTrade, Inc.
(“PickMyTrade”), and the party (“
User”) indicated during the account registration
process (such process and the information provided during such
process, as amended from time to time through User’s login to its
account in the Platform, the “Registration”). This
Agreement is effective upon User’s acceptance of it in the course of
the Registration (the “Effective Date”). The
Registration information and the terms of PickMyTrade’s Privacy
Policy are incorporated herein and made a part of this Agreement.
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Definitions
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“Affiliate” means, as to a party, any other
entity that directly or indirectly controls, is under common
control with, or is controlled by, such party; as used in this
definition, “control” and its derivatives mean possession,
directly or indirectly, of power to direct the management or
policies of an entity.
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“Documentation” means all documentation
(whether printed or in an electronic format) supplied or made
available to User by PickMyTrade for use with or in support of
the Platform or its implementation, including without
limitation any and all revisions, modifications, and updates
thereof as may be supplied or made available by PickMyTrade to
User and all copies thereof made by or on behalf of User.
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“Loss” means all losses, liabilities,
damages, awards, settlements, claims, suits, proceedings,
costs and expenses (including reasonable legal fees and
disbursements and costs of investigation, litigation, expert
witness fees, settlement, judgment, interest, and penalties).
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“Platform” means the online application,
site, and services offered by PickMyTrade, together with any
associated software applications, database structures and
queries, interfaces, tools, and the like, together with any
and all revisions, modifications, and updates thereof, as made
available by PickMyTrade to User pursuant to this Agreement.
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“User Data” means all data provided to
PickMyTrade by or on behalf of User as such data is maintained
by PickMyTrade from time to time.
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General Disclaimers Regarding Trading
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Trading Is Risky. Trading and investing are risky. User
can lose money. Past results are not necessarily indicative of
future results. Futures, stocks and options trading involves
substantial risk of loss and is not suitable for every trader
or investor. The valuation of futures, stocks and options can
fluctuate, and, as a result, User may lose more than their
original investment. PickMyTrade is not a registered
investment adviser or broker-dealer and does not provide
securities advice. Users are responsible for making their own
trading decisions.
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No Guarantee of Results of Services. Neither the
Platform nor any content included in the Platform is intended
to be the sole or primary means of making decisions for
trading or investing purposes. PickMyTrade is not responsible
or liable for the accuracy, usefulness or availability of any
information transmitted or made available via the Platform,
and PickMyTrade shall not be responsible or liable for any
trading or investment decisions made based on such
information.
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General Terms
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Governing Terms. These Terms of Service, along with any
additional terms or documents that are referenced herein or
that are presented elsewhere on our website, PickMyTrade.io,
in relation to a specific service or feature (collectively,
the “Agreement”) govern User’s use of our
Platform, and the services provided by PickMyTrade.
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Description of Service. PickMyTrade allows Users to
create and/or subscribe to automated trading strategies that
emit signals to buy and sell. In addition to this, PickMyTrade
allows strategy managers to build and deploy automated trading
strategies for other users to subscribe to. User understands
and agrees that the Platform is provided “AS-IS” and that
PickMyTrade assumes no responsibility for the timeliness,
efficiency, effectiveness, deletion, mis-delivery or failure
of any communication or services provided.
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Equipment and Ancillary Services. Users are responsible
for obtaining access to the Platform, and access may require
services that involve third party fees, such as those charged
by User’s Internet service provider. User is responsible for
those fees. In addition, User must provide and is responsible
for selecting, obtaining, and maintaining all equipment and
hardware necessary to access the Platform.
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Minimum Age. User represents and warrants that he or
she is at least 18 years of age or older. THE PLATFORM IS NOT
AVAILABLE TO PERSONS UNDER THE AGE OF 18.
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Limited Right to Use
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License. Subject to the terms and conditions of this
Agreement, PickMyTrade grants to User a limited, nonexclusive,
non-transferable, non-sublicensable (except as otherwise
provided herein) license during the Term to access and use the
Platform and the Documentation for use solely by User for
User’s own personal use and not for republication,
distribution, assignment, sublicense, sale, preparation of
derivative works or other use. All rights with respect to the
Platform not explicitly granted herein are reserved to
PickMyTrade.
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Prohibited Uses. Except as may be expressly authorized
in this Agreement, User shall not do, nor shall it authorize
any other party to do, any of the following: (1) use the
Platform or Documentation or any data associated with it for
any purpose or in any manner not specifically authorized by
this Agreement; (2) make any copies or otherwise reproduce or
print any portion of the Documentation, whether in printed or
electronic format; (3) distribute, republish, download,
display, post, or transmit any portion of the Platform or
Documentation; (4) create or recreate the source code for, or
re-engineer, reverse engineer, decompile, or disassemble the
Platform; (5) modify, adapt, translate, or create derivative
works from or based upon any part of the Platform or
Documentation, or combine or merge any part of the foregoing
with or into any other software, document, or work; (6) refer
to or otherwise use any part of the Platform or Documentation
as part of any effort to develop a product or service having
any functional attributes, visual expressions, or other
features or purposes similar to those provided by PickMyTrade;
(7) remove, erase, or tamper with any copyright, logo, or
other proprietary or trademark notice printed or stamped on,
affixed to, or encoded or recorded in the Platform or
Documentation, or use a proxy, reverse proxy, or any other
such mechanism that is intended to, or has the effect of,
obscuring any of the foregoing or confusing an individual as
to PickMyTrade’s rights in the foregoing, (8) fail to preserve
all copyright and other proprietary notices in any copy of any
portion of the Platform or Documentation; (9) sell, market,
license, sublicense, distribute, rent, loan, or otherwise
grant to any third party any right to possess or utilize any
portion of the Platform, Documentation or other associated
data without the express prior written consent of PickMyTrade
(which may be withheld by PickMyTrade for any reason or
conditioned upon execution by such party of a confidentiality
and non-use agreement and/or other such other covenants and
warranties as PickMyTrade in its sole discretion deems
desirable); (10) use the Platform or Documentation to gain or
attempt to gain access to any software applications, computer
systems, accounts, or data not expressly authorized under this
Agreement; (11) use the Platform or Documentation to store,
receive, or distribute any information in violation of
applicable law; (12) diminish or infringe any intellectual
property rights in and to the Platform or Documentation or
impair or interfere with any copyright protection mechanisms,
copyright management information systems or digital
identification devices employed in association with the
foregoing; (13) cause the Platform or Documentation to defame
or infringe the rights of any other person, including rights
of publicity or privacy and intellectual property rights; (14)
use the Platform or Documentation to break or violate any
applicable law, regulation, ordinance or guideline; (15)
impersonate any person or entity; (16) act in a manner that is
fraudulent, libelous, abusive, obscene, discriminatory,
harassing, harmful, threatening, invasive of another’s
privacy, or illegal; (17) encourage conduct that would
constitute a criminal offense, give rise to civil liability or
otherwise violate any law, statute, ordinance or regulation
(including, without limitation, those governing securities
transactions, consumer protection, unfair competition, false
advertising, deceptive practices or discrimination); (18)
transmit any computer viruses, worms, trojan horses or other
malware; (19) use any device, software, methodology, or
routine to interfere with or disrupt the Platform or
Documentation or the servers or networks connected to the
Platform by trespass or burdening network capacity; (20)
harvest or collect information about other users or customers
of PickMyTrade; (21) restrict or inhibit any other person from
using the Platform or Documentation, including without
limitation by means of “hacking” or defacing any portion
thereof; (22) “frame” or “mirror” any portion of the Platform
or Documentation; (23) use any robot, spider, other automatic
device, or manual process, to “screen scrape,” monitor,
“mine,” or copy any portion of the Platform or Documentation;
(24) probe, scan or test the vulnerability of a system or
network or to breach security or authentication measures
without proper authorization; (25) interfere with service to
any user, host or network, including overloading, “flooding”,
“spamming”, “mailbombing” or “crashing”; (26) forging any
TCP/IP packet header or any part of the header information in
any e-mail or newsgroup posting; (27) restrict or inhibit any
user from using the Platform; or (28) attempt to do or assist
any party in attempting to do any of the foregoing.
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Content Utilization. PickMyTrade reserves the right, in
its sole discretion, to edit or delete any documents,
information or other content appearing on the Platform. The
contents of the Platform, whether partial or otherwise
including, but not limited to, text, graphics, images, logos,
button icons, software, etc., are protected under both United
States and foreign copyright, trademark and other laws. All
our content is our exclusive property, including any code we
create to generate or display our content, any code used
within the Platform, or the pages making up any of Platform,
or any compilations, collections, arrangements or assembly of
content. The use of our content on any other unauthorized use
of our content is strictly prohibited.
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No Solicitation of Strategies or Strategy Managers.
Users are prohibited from soliciting strategies or strategy
managers away from PickMyTrade. Users are also prohibited from
soliciting other users to alternative or competing services.
This includes, but is not limited to, soliciting strategy
managers to make their strategies available outside of the
Platform.
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No Resale of Service or Subscription. User agrees not
to reproduce, copy, duplicate, sell, resell or exploit for any
commercial purposes, any portion of the Platform, use of the
Platform, or access to the Platform. If User subscribes to a
trading strategy, User agrees not to forward, disseminate, or
resell its contents without permission from the trading
strategy manager.
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Payment and Cancellation of Service
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Pricing. PickMyTrade may offer free access to the
Platform, subject to the terms of PickMyTrade’s then-current{'
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Pricing Plans
. PickMyTrade may change listed prices at any time, including
changing from a free service to a paid service and charging
for access to or use of the Platform that was previously
offered free of charge; provided, however, that PickMyTrade
will provide User with prior notice and an opportunity to
terminate this Agreement if PickMyTrade changes the price of a
service to which User is subscribed and will not charge User
for a previously free service unless User has been notified of
the applicable fees and agreed to pay such fees.
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Taxes. User shall pay when due (and PickMyTrade at its
discretion may collect and pay on User’s behalf) all taxes,
levies, or assessments based on or in any way measured by this
Agreement, the Platform, and the services provided hereunder,
excluding taxes based on PickMyTrade’s net income, but
including sales and use taxes and personal property taxes, if
any.
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Payment. Amounts due hereunder shall be paid in the
manner established during Registration or as subsequently
established by access to User’s Registration through the
Platform. If applicable, User authorizes PickMyTrade to charge
or debit automatically, using User’s selected payment method,
all such amounts. User is responsible for providing to
PickMyTrade and maintaining through the Registration complete
and accurate billing and contact information. All PickMyTrade
subscriptions are billed on a recurring monthly or annual
basis. User will be automatically billed each month or year
until User manually cancel the subscription. PickMyTrade does
not offer refunds, returns, or other credits for any payments,
including for partial or unused months of a subscription. If
purchasing a subscription from PickMyTrade for the first time,
please make sure that the subscription is correct before
proceeding. If User changes to a different plan, remaining
days are converted into an equivalent value of days on the new
subscription. PickMyTrade does not offer refunds for any
automatic recurring payments. If User has been billed for
automatic renewal of the subscription, User may cancel the
subscription to avoid billing for the next renewal date.
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Cancellations. User is responsible for canceling his or
her own subscription. However, cancellations may only be
submitted to PickMyTrade via methods designed by PickMyTrade;
contacting PickMyTrade support via email or phone asking for a
subscription to be cancelled is not considered cancellation.
User may cancel the subscription at any time by logging into
User’s account and accessing the Billing section of the
account. If User cancels the subscription before the renewal
date, User’s service will remain active until the renewal date
passes. If no payment is received after the renewal date,
User’s paid subscription will be stopped and moved to a free
plan, subject to the terms of PickMyTrade’s then-current
Pricing Plans.
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User Obligations
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Registration. When registering with the Platform, User
will be asked to create an account and provide PickMyTrade
with specific information including, but not limited to, a
valid email address. User agrees to update the Registration
upon any changes to such information. The Registration is
incorporated herein and made a part of this Agreement. User
acknowledges that PickMyTrade has no responsibility for
verifying the identity of users and determining whether a
particular user is authorized to use the Platform.
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Account Passwords and Data Security. User shall
maintain the confidentiality of the User’s account, as well as
all associated information, such as user IDs and passwords.
User is responsible for all uses of their user ID and
password. User may not share their password or account access
with any other party, either on a temporary or permanent
basis. User shall be responsible for all action conducted
during a login to their account, whether or not authorized by
User. User agree to immediately notify PickMyTrade of any
unauthorized use of User’s account. If User is no longer
authorized to have access to the Platform, User may not use
the user ID and password. Except as otherwise required by
applicable law, PickMyTrade shall have no obligation to
monitor for or report any use or attempted use of the user IDs
of User. PickMyTrade reserves the right to refuse registration
of or cancel passwords it deems inappropriate.
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Compliance with Laws. User represents, covenants, and
warrants that User will use the Platform and Documentation
only in compliance with all applicable laws and regulations.
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Cooperation. User agrees to comply with any
instructions provided by and to respond to any requests made
by PickMyTrade with respect to or otherwise associated with
access to the Platform.
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Deletion of Account Information. The Registration does
not give rise to any ownership rights in PickMyTrade or the
Platform. If User cancels its account or it is cancelled by
PickMyTrade, all of User’s account information will be deleted
from the Platform, the databases, and any public area of the
Platform. The timeliness of the deletion is at PickMyTrade’s
sole discretion. Information may continue to be available for
some period of time due to delays in propagating such deletion
through the servers and other reasons beyond PickMyTrade’s
immediate control. User hereby acknowledges that while an
account has been deleted and associated information has been
deleted from PickMyTrade servers, trace information may remain
with third parties not under PickMyTrade’s control.
PickMyTrade assumes no responsibility for the use of such
cached information and User hereby agrees to indemnify and
hold PickMyTrade harmless for the use or misuse of said cached
information.
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User Content and Postings
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All postings and information submitted on and through the
Platform, including all messages, text, files, images, photos,
video, sounds, and any other material that may be construed as
content (“User Content”) are solely the
responsibility of the person from whom such content
originated. User hereby agrees that in submitting User Content
User will not impersonate any person, or submit any materials
that are false, inaccurate, misleading, unlawful, or are
otherwise in violation of User’s obligations under this
Agreement.
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In posting User Content, User represents and warrants that
User has the right to post such User Content, that the holder
of any rights, including moral rights in such content, has
completely and effectively waived all such rights and validly
and irrevocably granted to User the right to post User
Content, or that User has express, verifiable permission from
the author of the work prior to posting the User Content. If
User posts User Content in any public area of the Platform,
User also permits any user to access, display, and view such
User Content for personal use.
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User agrees to evaluate and bear all risk associated with the
use of User Content. User may not rely on User Content and
under no circumstances will User hold PickMyTrade liable for
such User Content. User acknowledges that the Platform may act
as a passive conduit for the online distribution and
publication of User Content. User further acknowledges that
PickMyTrade has no affirmative obligation to screen, review,
or pre-approve User Content in advance of said content,
communications, or information prior to posting by users.
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Notwithstanding the provisions of Paragraph 7.3, PickMyTrade
may review and remove any User Content that, in PickMyTrade’s
sole judgment, violates this Agreement, violates applicable
laws, rules or regulations, is abusive, disruptive, offensive
or illegal, or violates the rights of, or harms or threatens
the safety of users of any of the Platform. User acknowledges
that PickMyTrade does not pre-screen or pre-approve User
Content, but that PickMyTrade reserves the right to refuse,
delete, rearrange, edit, modify, or otherwise manipulate User
Content at its sole discretion without advance notification.
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In posting User Content to the Platform, User automatically
grants PickMyTrade and its Affiliates an irrevocable,
royalty-free, perpetual, fully paid non-exclusive right
(including moral rights) and worldwide license to use, copy,
reproduce, modify, adapt, publish, translate, communicate to
the public, perform, display, and distribute such User Content
(in whole or in part) and to prepare derivative works of, or
incorporate into other works (in any form, media or technology
now known or later developed, for the full term of any rights
that may exist in such content) such user content, and to
grant and authorize sublicenses thereof (through multiple
tiers).
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If PickMyTrade is notified that User Content does not conform
to this Agreement, PickMyTrade may, in its sole discretion,
investigate the allegation and determine whether to take any
other actions to remove or request the removal of the User
Content. PickMyTrade has no liability or responsibility to
users for performance or non-performance of such activities.
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Any User Content, regardless of format shall be delivered to
PickMyTrade with the User’s warranty that such content is
rightfully owned by or licensed to the User. PickMyTrade will
not verify that User Content is validly owned by or licensed
to the User and, as such, the User bears all risk associated
with the transmission of said content to us.
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PickMyTrade does not represent or guarantee the truthfulness,
accuracy, or reliability of User Content or any other
communications posted by users or endorse any opinions
expressed by users.
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If User believes that any User Content or other postings on
the Platform violates this Agreement, please contact us at{'
'}
[email protected]
.
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Third Party Services and Products. PickMyTrade
reserves the right to offer third party services and products to
User based on the preferences identified in User’s Registration
and at any time thereafter; such offers may be made by PickMyTrade
or by third parties. Without limiting any of the other disclaimers
of warranty set forth in these Terms, PickMyTrade does not provide
or make any representation, warranty or guarantee as to the
quality, nature, accuracy or fitness for any purpose of any
third-party products or services. Any such undertaking,
representation, warranty or guarantee would be furnished solely by
the third-party provider of such products or services and subject
to that provider’s Terms of Service. The Platform may contain
links and pointers to websites operated by third parties. These
links are provided solely as a convenience to User and not as an
endorsement by PickMyTrade of the contents of such third-party
websites. PickMyTrade is not responsible for the content of linked
third-party websites and does not make any representations
regarding the content or accuracy of materials on such third-party
websites. If User decides to access linked third-party websites,
User does so at his or her own risk.
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Proprietary Rights
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User Content. As between PickMyTrade and User, User has
and retains exclusive ownership of all User Content and all
intellectual property and proprietary rights therein.
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Platform & Documentation. As between PickMyTrade
and User, PickMyTrade has and retains exclusive ownership of
the Platform and Documentation, all improvements, enhancements
or modifications thereto, and all intellectual property and
proprietary rights therein. PickMyTrade also owns and has the
unrestricted right to use any data collected via the Platform
that is not User Content. User acknowledges and agrees that
PickMyTrade has and retains exclusive and valid ownership of
all anonymized statistical information regarding use of the
Platform. User acknowledges that the foregoing constitute
valuable assets and may constitute trade secrets of
PickMyTrade or its licensors.
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Trademark. PickMyTrade’s brand names and design logos
and certain other names or logos displayed on the Platform are
protected service marks and/or trademarks, and all related
products and service names, design marks and slogans are our
protected service marks and/or trademarks, and are protected
by the trademark laws and other intellectual property laws of
the United States and other countries, and by international
treaties and conventions. Elements of the Platform, including,
but not limited to, the “look” and “feel” of the Platform, are
protected by trade dress and other laws and may not be copied
or imitated in whole or in part.
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Suggestions and Joint Efforts. User may suggest, and
the parties may discover or create jointly, findings,
inventions, improvements, discoveries, or ideas that
PickMyTrade, at its sole option, may incorporate in the
Platform or in other products or services that may or may not
be made available to User. Any such finding, invention,
improvement, discovery, or idea, whether or not patentable,
that is conceived or reduced to practice, whether by a party
alone or by the parties jointly, arising from or related to
this Agreement or the Platform shall be and remain solely
property of PickMyTrade and may be used, sold, licensed, or
otherwise provided by PickMyTrade to third parties, or
published or otherwise publicly disclosed, in PickMyTrade’s
sole discretion without notice, attribution, payment of
royalties, or liability to User. User hereby assigns to
PickMyTrade any and all right, title, and interest in and to
any such findings, inventions, improvements, discoveries,
ideas, and statistical information. Unless otherwise expressly
agreed in writing, User shall not obtain any right, title, or
interest (other than the license expressly set forth herein)
in or to anything created or developed by PickMyTrade in
connection with or incident to this Agreement.
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License to Use User Content. User grants to PickMyTrade
a non-exclusive, transferrable, sublicensable, worldwide,
royalty-free license to use, disclose, and process User
Content and Registration information to: (a) perform its
obligations under this Agreement, and to compile analyses and
statistical information regarding usage or performance of the
Platform; (b) provide, monitor, correct, and improve the
Platform and perform services related thereto; (c) de-identify
such data such that there is no reasonable basis to believe
that the information can be used, alone or in combination with
other reasonably available User, to identify any individual or
to identify User as the source of such data; (d) aggregate
such data with other data; and (e) in perpetuity to use,
reproduce, prepare derivative works of, and distribute such
de-identified and aggregated data for any lawful purpose and
to grant sublicenses for the foregoing. User represents and
warrants that it owns or has the legal right and authority,
and will continue to own or maintain the legal right and
authority, to grant to PickMyTrade the license set forth
herein. User shall indemnify, defend, and hold harmless
PickMyTrade, its Affiliates, and their respective directors,
officers, employees, and agents from and against any Loss
arising from or related to a claim of a third party with
respect to a breach of the foregoing representations and
warranties of User.
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Notices of Alleged Copyright Violations
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We do not review User Content posted to the Platform. If you
believe that your work has been posted on the Platform without
express and verifiable permission that violates your rights,
including intellectual property rights, please notify us at{'
'}
[email protected]
. We will investigate claims of copyright or intellectual
property infringement. To assist us with such investigations,
please provide the following information: (a) Identify the
material that you claim is infringing with enough detail so
that it may be located on the Platform; (b) Provide a written
statement that you have a good faith belief that the disputed
use is not authorized by the copyright owner, its agent, or
the law; (c) Provide a written statement by you declaring
under penalty of perjury that (1) the above information is
accurate and (2) that you are the owner of the copyright
interest involved or that you are authorized to act on behalf
of that owner; (d) your address, telephone number, and email
address; and (e) your physical or electronic signature.
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We adhere to the Digital Millennium Copyright Act (DMCA) and
in compliance with the DMCA will remove any material that
infringes on the copyright or intellectual property interests
of the rightful owner once such ownership is affirmatively
established.
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Duration of Agreement and Terms of Service
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Term. Subject to earlier termination as provided below,
this Agreement is for the Initial Term as specified in the
Registration, and shall be automatically renewed thereafter
for additional periods of the same duration as the Initial
Term (collectively, the “Term”), unless either party provides
notice of termination at least 30 days prior to the end of the
then-current term.
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Notice of Breach; Cure Period. In the event of a breach
of a provision of this Agreement, the notice and cure
procedures set forth in this paragraph shall apply. The
non-breaching party shall give the breaching party notice
describing the breach and stating the time, as provided
herein, within which the breach must be cured. If a provision
of this Agreement sets forth a cure period for the breach in
question, then that provision shall take precedence over any
cure period set forth in this paragraph. No cure period shall
be required, except as may be provided otherwise in this
Agreement, if this Agreement sets forth specific deadline
dates for the obligation allegedly breached. If the breach is
a material breach of an obligation relating to the other
party’s Confidential Information or User’s use or disclosure
of the Platform or Documentation other than in compliance with
this Agreement, then the non-breaching party, in its sole
discretion, may specify in the notice of breach that no cure
period will be permitted. If the breach is other than a breach
of the kind described above in this paragraph, then the cure
period will be 30 days after the notice of the breach by the
non-breaching party. Notwithstanding anything to the contrary,
PickMyTrade may immediately terminate this Agreement, or limit
access to or suspend User’s account and access to the
Platform, without permitting a cure period upon (1) breach or
violation of this Agreement or other incorporated agreements
or guidelines; (2) a request by law enforcement or other
government agency; (3) discontinuance or material modification
to the Platform (or any part thereof); (4) unexpected
technical or security issues or problems; (5) engagement in
fraudulent or illegal activities; (6) nonpayment of any fees
owed.
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Termination. If a breach of any provision of this
Agreement has not been cured at the end of the applicable cure
period, if any (or upon such breach if no cure period is
permitted), then the non-breaching party thereupon may
terminate this Agreement by notice to the other party.
Termination of this Agreement by PickMyTrade shall terminate
all licenses granted to User herein. Any termination of this
Agreement shall be in addition to, and not in lieu of, any
other rights or remedies available at law or in equity.
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Violation of Terms of Service. PickMyTrade reserves the
right to expel User and prevent their further access to the
Platform and/or use of our services for violating this
Agreement or applicable laws, rules or regulations.
PickMyTrade may take any action with respect to User Content
that PickMyTrade deems necessary or appropriate in its sole
discretion if PickMyTrade believe that such User Content could
create any liability for PickMyTrade, damage PickMyTrade’s
brand, reputation, or public image, or cause PickMyTrade to
lose (in whole or in part) the services of its suppliers.
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Privacy Policy. User acknowledges and agrees that
User has read and understood PickMyTrade’s Privacy Policy, which
is available at
https://PickMyTrade.io/privacy
, and User consents to and authorizes the processing, use, and
disclosure of personal information as set forth therein.
Notwithstanding anything to the contrary herein, User consents and
PickMyTrade shall have the right to collect and analyze data and
other information relating to the provision, use and performance
of the Platform and related systems and technologies, and
PickMyTrade will be free (during and after the term hereof) to (i)
use such information and data to improve and enhance the Platform
and for other development, diagnostic and corrective purposes in
connection with the Platform and other service offerings, and (ii)
disclose such data solely in aggregate or other de-identified form
in connection with its business.
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Representation and Warranty Disclaimers
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THE PLATFORM AND ITS CONTENTS ARE PROVIDED ON AN “AS IS” AND
“AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED. PickMyTrade AND ITS AFFILIATES, PARENTS
AND SUBSIDIARIES, TO THE FULLEST EXTENT PERMITTED BY LAW,
DISCLAIM ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS,
WHETHER EXPRESS OR IMPLIED OR STATUTORY OR ORAL OR WRITTEN,
WITH RESPECT TO THE PLATFORM OR THE SERVICES HEREUNDER OR ANY
PART OF THE FOREGOING, INCLUDING THE WARRANTIES OF
MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTIES’
RIGHTS, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT
PickMyTrade KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR
OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), QUALITY
(INCLUDING, WITHOUT LIMITATION, AS TO THE SEQUENCE,
COMPLETENESS, TIMELINESS, ADEQUACY, ACCURACY, QUALITY, TRUTH,
AND/OR RELIABILITY OF THE INFORMATION), ACCURACY, QUIET
ENJOYMENT OR AVAILABILITY, WHETHER ALLEGED TO ARISE BY LAW, BY
REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING,
OR OTHERWISE. PickMyTrade EXPRESSLY DISCLAIMS ANY WARRANTY OR
REPRESENTATION TO ANY PERSON OTHER THAN USER.
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PickMyTrade MAKES NO WARRANTY THAT (i) THE PLATFORM AND
MATERIALS AVAILABLE ON THE PLATFORM WILL MEET USER’S
REQUIREMENTS, (ii) THE PLATFORM AND MATERIALS WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) THE
RESULTS THAT MAY BE OBTAINED FROM THE USE OR THE PLATFORM OR
MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE. USER WILL
BE EXCLUSIVELY RESPONSIBLE AS BETWEEN THE PARTIES FOR, AND
PickMyTrade MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT
TO, (A) DETERMINING WHETHER THE PLATFORM WILL ACHIEVE THE
RESULTS DESIRED BY USER OR PROMISED BY PickMyTrade; (B)
ENSURING THE ACCURACY OF ANY USER CONTENT; (C) SELECTING,
PROCURING, INSTALLING, OPERATING, AND MAINTAINING THE
TECHNICAL INFRASTRUCTURE (OTHER THAN WITH RESPECT TO THE
HOSTING SERVICES) FOR USER’S ACCESS TO AND USE OF THE
PLATFORM; AND (D) DECISIONS MADE, ACTIONS TAKEN, AND RESULTS
EXPERIENCED WITH RESPECT TO USE OF THE PLATFORM.
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ALL CONTENT PROVIDED BY OR THROUGH PickMyTrade AND OUR
AFFILIATES AND THE PLATFORM MUST BE VIEWED AND EVALUATED BY
USER TO ENSURE IT IS SUITABLE FOR USER’S PURPOSE. PickMyTrade
ENDEAVORS TO KEEP ALL CONTENT COMPLETE AND ACCURATE, BUT
PickMyTrade DOES NOT WARRANT ALL CONTENT TO BE FREE OF ERRORS
OR THE MOST CURRENT VERSION OF APPLICABLE MATERIAL. CONTENT
MAY CONTAIN INACCURACIES OR TYPOGRAPHICAL ERRORS.
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IN THE EVENT OF LINKS TO THIRD PARTY CONTENT, PickMyTrade DOES
NOT GUARANTEE THAT THE INFORMATION PROVIDED IN EXTERNAL
WEBSITES IS ACCURATE OR COMPLETE. PickMyTrade DOES NOT HAVE
CONTROL OVER THE CONTENT, ACTIVITIES, SECURITY OR PRIVACY
POLICIES OF THIRD-PARTY WEBSITES AND PickMyTrade ACCEPTS NO
RESPONSIBILITY FOR THE SAME. IT IS THE USER’S RESPONSIBILITY
TO EVALUATE ALL EXTERNAL LINKS FOR SUITABILITY OF USE.
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PickMyTrade DOES NOT WARRANT THAT THE PLATFORM AND ITS SERVERS
ARE FREE OF COMPUTER VIRUSES, WORMS, TROJAN HORSES OR OTHER
HARMFUL MECHANISMS. IF USE OF THE PLATFORM RESULTS IN THE NEED
FOR SERVICING OR REPLACING EQUIPMENT OR DATA, PickMyTrade IS
NOT RESPONSIBLE FOR THOSE COSTS. USER ASSUMES ALL
RESPONSIBILITY AND RISK FOR USE OF THE PLATFORM AND THE
INTERNET GENERALLY.
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PickMyTrade DOES NOT WARRANT THE OPERATION OR AVAILABILITY OF
THE PLATFORM. HARDWARE OR SOFTWARE ISSUES MAY AT TIMES CAUSE
THE PLATFORM TO SLOW DOWN OR FAIL TO FUNCTION PROPERLY.
PickMyTrade IS NOT LIABLE FOR ANY CONSEQUENCES OF THE PLATFORM
NOT BEING FULLY OPERATIONAL OR AVAILABLE AND SHALL BE HELD
HARMLESS FROM ANY CLAIMS OR DISPUTES ARISING FROM SUCH
INOPERABILITY OR UNAVAILABILITY. USER ACKNOWLEDGE THAT ANY
DAMAGES RESULTING FROM LACK OF OPERABILITY OR AVAILABILITY ARE
BORN SOLELY BY USER.
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SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY
LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE
EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES THAT ARE NOT
PERMITTED TO BE EXCLUDED ARE LIMITED TO NINETY (90) DAYS OR
SUCH LONGER PERIOD AS APPLICABLE LAW REQUIRES.
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PickMyTrade is not involved in any individual user to user
transactions. PickMyTrade is not responsible for and does not
control the conduct of users of the Platform. User is solely
responsible for its interactions with other users.
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PickMyTrade uses external databases for specific
functionalities related to the Platform. PickMyTrade makes
commercially reasonable efforts to ensure that information
gleaned from external databases are accurate, but assumes no
responsibility for the accuracy of such information. Although
PickMyTrade makes commercially reasonable efforts to ensure
the information received from an external database is free
from viruses, malware, or any destructive instrumentality,
PickMyTrade assumes no responsibility for the presence of any
viruses, malware, or any other destructive instrumentality
transmitted to us from an external database.
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Indemnification. User shall defend, indemnify,
and hold harmless PickMyTrade, and our Affiliates, and each of
their respective managers, members, officers, employees, officers,
directors and agents for all Losses arising from any third party
claims, actions or demands, arising out of or relating to (a) any
breach of this Agreement by User, (b) violation of the rights of a
third party by User, or (c) otherwise in connection with User’s
use of the Platform, including without limitation, claims by
users, actions or demands alleging User’s breach of the terms of
this Agreement, actions involving User Content or other material
provide by User, and the use of User’s access credentials.
PickMyTrade shall provide notice to User promptly of any claim,
suit, or proceeding. User shall cooperate as fully as reasonably
required in the defense of any claim. PickMyTrade reserves the
right, at its own expense, to assume the exclusive defense and
control of any matter otherwise subject to indemnification by User
and User shall not in any event settle any matter without
PickMyTrade written consent.
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Limitation of Liability and Remedies
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Exclusion of Certain Damages. OTHER THAN FOR USER’S
BREACH OF THE LICENSE RESTRICTIONS AND A PARTY’S EXPRESS
INDEMNIFICATION OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO
THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED
FROM THE OTHER PARTY’S RIGHTS) UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A)
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL,
ENHANCED, OR PUNITIVE DAMAGES OF ANY KIND; (B) INCREASED
COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION,
REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D)
USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY
OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST
OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF
WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED HAD
OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW
OF THE POSSIBILITY THEREOF. THE PROVISIONS OF THIS PARAGRAPH
ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED
INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE
PROVISION OF THIS AGREEMENT.
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Maximum Aggregate Liability. OTHER THAN FOR USER’S
BREACH OF THE LICENSE RESTRICTIONS OR A PARTY’S EXPRESS
INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL A PARTY’S
AGGREGATE LIABILITY TO THE OTHER PARTY (INCLUDING LIABILITY TO
ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR
DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY OR THROUGH SUCH
PARTY), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL
TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS
AGREEMENT, IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, EXCEED THE FEES PAID TO PickMyTrade IN THREE
MONTHS’ IMMEDIATELY PRECEDING EVENT GIVING RISE TO THE
LIABILITY. THE PROVISIONS OF THIS PARAGRAPH ARE INDEPENDENT
OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY
OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS
AGREEMENT.
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NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, PickMyTrade
SHALL NOT BE LIABLE FOR ANY LOSS ARISING OUT OF OR RELATING TO
(A) A FAILURE OF USER TO COMPLY WITH THE OBLIGATIONS SET FORTH
IN SECTION 4; (B) USER’S USE OF THE PLATFORM; (C) USER’S
RELIANCE ON THE PLATFORM OR USER CONTENT; (D) ANY ASPECT OF
THE PLATFORM THAT IS MODIFIED BY ANY PERSON OTHER THAN
PickMyTrade OR ITS CONTRACTORS; (E) MALFUNCTIONS OR OTHER
EFFECTS OF PROBLEMS, DEFECTS, OR FAILURES OF SOFTWARE OR
HARDWARE NOT PROVIDED BY PickMyTrade; OR (F) ACTS OR OMISSIONS
OF USER OR ANY THIRD PARTY.
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Jury Trial Waiver. THE PARTIES SPECIFICALLY WAIVE ANY
RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY
CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR
CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN
ANY WAY TO THIS AGREEMENT, BECAUSE THE PARTIES HERETO BELIEVE
THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR
DEALINGS WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER
DESIRABLE NOR APPROPRIATE.
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Intentional Risk Allocation. Each party acknowledges
that the provisions of this Agreement were negotiated, as a
material part of the agreement memorialized herein, to reflect
an informed, voluntary allocation between them of all risks
(both known and unknown) associated with the transactions
involved with this Agreement. The warranty disclaimers and
limitations in this Agreement are intended, and have as their
essential purpose, to limit the circumstances of liability.
The remedy limitations and the limitations of liability are
separately intended, and have as their essential purpose, to
limit the forms of relief available to the parties.
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Confidentiality
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“Confidential Information” means any
information of any type in any form that (i) is disclosed to
or observed or obtained by one party from the other party (or
from a person the recipient knows or reasonably should assume
has an obligation of confidence to the other party) in the
course of, or by virtue of, this Agreement and (ii) either is
designated as confidential or proprietary in writing at the
time of such disclosure or within a reasonable time thereafter
(or, if disclosure is made orally or by observation, is
designated as confidential or proprietary orally by the person
disclosing or allowing observation of the information) or is
of a nature that the recipient knew or reasonably should have
known, under the circumstances, would be regarded by the owner
of the information as confidential or proprietary. Without
limiting any other provisions of this Agreement, and whether
or not otherwise meeting the criteria described herein, the
Platform and Documentation shall be deemed conclusively to be
Confidential Information. For purposes of this Agreement,
however, the term “Confidential Information” specifically
shall not include any portion of the foregoing that (i) was in
the recipient’s possession or knowledge at the time of
disclosure and that was not acquired directly or indirectly
from the other party, (ii) was disclosed to the recipient by a
third party not having an obligation of confidence of the
information to any person or body of which the recipient knew
or which, under the circumstances, the recipient reasonably
should have assumed to exist, or (iii) is or, other than by
the act or omission of the recipient, becomes a part of the
public domain not under seal by a court of competent
jurisdiction. A selection or combination of information will
not meet any of the foregoing exceptions solely because some
or all of its individual component parts are so excepted and
will meet such exception(s) only if the selection or
combination itself is so excepted. In the event of any
ambiguity as to whether information is Confidential
Information, the foregoing shall be interpreted strictly and
there shall be a rebuttable presumption that such information
is Confidential Information.
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Security of Confidential Information. In addition to
any other restrictions or obligations imposed at law or
provided under this Agreement, each party possessing
Confidential Information of the other party will maintain all
such Confidential Information under reasonably secure
conditions, using the same security procedures used by such
party for the protection of its own Confidential Information
of a similar kind and in any event not less than reasonable
security measures.
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Non-Disclosure Obligation. Except as otherwise may be
permitted by this Agreement, neither party shall disclose any
Confidential Information of the other party to any third party
without the express prior written consent of the other party;
provided, however, that either party may disclose appropriate
portions of Confidential Information of the other party to
those of its employees, contractors, agents, and professional
advisors having a substantial need to know the specific
information in question in connection with such party’s
exercise of rights or performance of obligations under this
Agreement provided that all such persons (i) have been
instructed that such Confidential Information is subject to
the obligation of confidence set forth by this Agreement and
(ii) are bound by contract, employment policies, or fiduciary
or professional ethical obligation to maintain such
information in confidence.
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Compelled Disclosure. If either party is ordered by a
court, administrative agency, or other governmental body of
competent jurisdiction to disclose Confidential Information,
or if it is served with or otherwise becomes aware of a motion
or similar request that such an order be issued, then such
party will not be liable to the other party for disclosure of
Confidential Information required by such order if such party
complies with the following requirements: (i) if an
already-issued order calls for immediate disclosure, then such
party immediately shall move for or otherwise request a stay
of such order to permit the other party to respond as set
forth in this paragraph; (ii) such party immediately shall
notify the other party of the motion or order by the most
expeditious possible means; (iii) such party shall not oppose
a motion or similar request by the other party for an order
protecting the confidentiality of the Confidential
Information, including not opposing a motion for leave to
intervene by the other party; and (iv) such party shall
exercise reasonable efforts to obtain appropriate assurance
that confidential treatment will be accorded the Confidential
Information so disclosed.
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Post-Termination Procedures. Except as otherwise
expressly provided in this Agreement, promptly upon the
expiration or any termination of this Agreement or other
expiration or termination of a party’s right to possess and/or
use Confidential Information, each party shall turn over to
the other party (or destroy and certify the same in writing,
if agreed in writing by the other party) any embodiments of
any Confidential Information of the other party.
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Arbitration. All disputes, controversies, or
claims arising out of, relating to, or regarding this Agreement,
including the breach, termination, or validity thereof, shall be
determined pursuant to arbitration on the following terms,
namely:
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If you and PickMyTrade are unable to resolve a dispute (a
“Dispute”) through informal negotiations, the Dispute
(except where explicitly prohibited by applicable law) will
be finally and exclusively resolved by binding arbitration.
The arbitration shall be commenced and conducted under the
Commercial Arbitration Rules of the American Arbitration
Association ("AAA") and, where appropriate, the AAA’s
Supplementary Procedures for Consumer Related Disputes ("AAA
Consumer Rules"), both of which are available at the AAA
website www.adr.org. You and PickMyTrade shall equally share
the cost of the arbitration, but each party shall be
responsible for its own attorney’s fees. The arbitration may
be conducted in person at mutually agreed upon location, or
virtually through the submission of documents, by phone, or
online. The arbitrator will make a decision in writing, but
need not provide a statement of reasons unless requested by
either party. The arbitrator must follow applicable law, and
any award may be challenged if the arbitrator fails to do
so. Except as otherwise provided herein, the parties may
litigate in court to compel arbitration, stay proceedings
pending arbitration, or to confirm, modify, vacate, or enter
judgment on the award entered by the arbitrator.
In no event shall any Dispute brought by either party be
commenced more than 2 years after the cause of action arose.
If this provision is found to be illegal or unenforceable,
then neither party will elect to arbitrate any Dispute
falling within that portion of this provision found to be
illegal or unenforceable and such Dispute shall be decided
by a court of competent jurisdiction within the courts of
PickMyTrade’s home state, and the parties agree to submit to
the personal jurisdiction of that court.
The parties agree that any arbitration shall be limited to
the Dispute between the parties individually. To the full
extent permitted by law, (a) no arbitration shall be joined
with any other proceeding; (b) there is no right or
authority for any Dispute to be arbitrated on a class-action
basis or to utilize class action procedures; and (c) there
is no right or authority for any Dispute to be brought in a
purported representative capacity on behalf of the general
public or any other persons.
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The party desiring arbitration shall nominate one arbitrator
and shall notify the other parties of such nomination. Such
other parties shall within ten (10) days after receiving such
notice, nominate an arbitrator and the two arbitrators shall
select a chairman of the arbitral tribunal to act jointly with
them. If the arbitrators shall be unable to agree in the
selection of such chairman, the chairman shall be designated
by a Judge of the applicable jurisdiction upon an application
by any party;
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If the parties hereto receiving the notice of the nomination
of any arbitrator by the party desiring arbitration fail
within the said ten (10) days to oppose the nomination of said
arbitrator, the nominated arbitrator shall be performed as the
arbitrator for the purposes of arbitration under this
Agreement. The arbitrator nominated by the party desiring
arbitration may proceed alone to determine the dispute in such
manner and at such time as he shall think fit and his decision
shall, subject to the provisions hereof, be binding upon the
parties; and
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Notwithstanding the foregoing, any arbitration may be carried
out by a single arbitrator if the parties hereto so agree, in
writing. In this event, the provisions of this paragraph shall
apply mutatis mutandis; to the single arbitrator.
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The parties agree to keep confidential the existence of the
arbitration, the arbitral proceedings, the submissions made by
the parties and the decisions made by the arbitral tribunal,
including its awards to the extent not already in the public
domain, except in judicial proceedings related to the award or
where required by applicable law.
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Other Provisions
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Amendments; Waiver. Except as otherwise expressly
provided herein, no modification or amendment to this
Agreement will be valid or binding unless in writing and duly
executed by the party or parties to be bound thereby. The
failure of either party at any time to require performance by
the other party of any provision of this Agreement shall in no
way affect the right of such party to require performance of
that provision. Any waiver by either party of any breach of
this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver of
the provision itself, or a waiver of any right under this
Agreement.
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Entire Agreement. This Agreement constitutes the entire
agreement between the parties concerning the subject matter
hereof. This Agreement supersedes all prior or contemporaneous
agreements, representations, warranties, inducements,
promises, and understandings with respect to the Platform, the
content, products or services provided by or through
PickMyTrade, and the subject matter of this Agreement. Each
party represents and warrants that, in entering into and
performing its obligations under this Agreement, it does not
and will not rely on any promise, inducement, or
representation allegedly made by or on behalf of the other
party with respect to the subject matter hereof, nor on any
course of dealing or custom and usage in the trade, except as
such promise, inducement, or representation may be expressly
set forth herein.
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Assignment. PickMyTrade may transfer, assign,
sub-contract or otherwise deal with our rights and/or
obligations under this Agreement. User may not transfer or
assign this Agreement or User’s rights or obligations
thereunder.
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Severability. If a provision of this Agreement is
determined by any court or other competent authority to be
unlawful and/or unenforceable, then the invalid or
unenforceable provision will be removed from the Agreement,
and the other provisions will continue in effect. If any
unlawful and/or unenforceable provisions would be lawful or
enforceable if part of it were deleted, that part will be
deemed to be deleted, and the rest of the provision will
continue in effect. A valid and enforceable provision that
approximates the intent of the invalid or enforceable
provision as closely as possible shall be substituted for the
invalid or unenforceable provision.
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Governing Law. The laws applicable to the
interpretation of this Agreement shall be the laws of the
State of Tennessee and applicable federal law, without regard
to any conflict of laws rules thereof. Any claims or actions
regarding or arising out of this Agreement, if permitted
notwithstanding the arbitration requirements, must be brought
exclusively in a state or federal court of competent
jurisdiction sitting in Sumner County, Tennessee. We make no
representation that the Platform is appropriate for access
outside of the United States and accessing it from
jurisdictions where it is illegal is prohibited.
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Notice. Except as otherwise expressly provided herein,
notices shall be given under this Agreement in writing in the
English language, signed by the party giving the same, and
shall be given (i) personally (in which case such notices
shall be deemed given when so delivered), (ii) by certified or
registered U.S. Mail, properly addressed and postage pre-paid,
from within the United States (in which case such notices
shall be deemed given on the third business day after
deposit), (iii) by generally recognized overnight courier,
properly addressed and pre-paid, with next business day
instruction (in which case such notices shall be deemed given
on the next business day after deposit), or (iv) for
PickMyTrade, by e-mail (in which case such notice shall be
deemed given upon transmission unless the party giving notice
receives a non-delivery email message within a reasonable time
thereafter). Such notices shall be sent to PickMyTrade at
[email protected], and
to User at the address for notices or email address designated
in the Registration. Either party may change its address for
purposes of notice by written notice thereof to the other
party.
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Nature of Relationship. PickMyTrade shall provide all
services hereunder as an independent contractor to User.
Subject to the provisions of this Agreement, PickMyTrade may
perform its obligations hereunder through its employees and
through subcontractors. Nothing contained herein shall be
deemed to create any agency, partnership, joint venture, or
other relationship between the parties or any of their
Affiliates, and neither party shall have the right, power, or
authority under this Agreement to create any duty or
obligation on behalf of the other party.
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Force Majeure. Neither party shall be liable for any
failure to perform its obligations under this Agreement if
such failure arises, directly or indirectly, out of causes
reasonably beyond the direct control of such party and not due
to such party’s own fault or negligence or that of its
contractors or representatives or other persons acting on its
behalf, and which cannot be overcome by the exercise of due
diligence and which could not have been prevented through
commercially reasonable measures, including acts of God, acts
of terrorists or criminals, acts of domestic or foreign
governments, changes in any law or regulation, fires, floods,
explosions, epidemics, pandemics, disruptions in
communications, power, or other utilities, strikes or other
labor problems, riots, or unavailability of supplies.
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Successors and Assigns. This Agreement will be binding
upon and inure to the benefit of the parties and their
successors and assigns permitted by this Agreement.
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Injunctive Relief. Each party acknowledges that any
violation of its covenants in this Agreement relating to the
other party’s Confidential Information and intellectual
property would result in damage to such party that is largely
intangible but nonetheless real and that is incapable of
complete remedy by an award of damages. Accordingly, any such
violation shall give such party the right to an injunction or
other appropriate order to enforce specifically those
covenants without bond and without prejudice to any other
rights or remedies to which such party may be entitled as a
result of a breach of this Agreement.
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No Third-Party Beneficiaries. Except as otherwise
expressly set forth herein, nothing in this Agreement is
intended to confer, nor shall anything herein confer, upon any
person other than the parties and the respective successors or
assigns of the parties, any rights, remedies, obligations, or
liabilities whatsoever.
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Survival. All sections of this Agreement which by their
nature should survive termination will survive termination,
including, without limitation, accrued rights to payment,
confidentiality obligations, warranty disclaimers,
indemnification, and limitations of liability.
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Headings. The headings of the sections used in this
Agreement are included for convenience only and are not to be
used in construing or interpreting this Agreement.