Terms & Conditions
These Terms & Conditions are an agreement between you and Traders Agency, LLC (“TA”) (the “Agreement”) and provides the terms and uses under which will provide you, (the “User”) with certain educational services and products that are offered on the TA website, as well as access to certain Software as described herein. This Agreement also provides for the terms and use of the TA website by the User, as well as the use of any Software. TA and User may collectively be referred to in this Agreement as the “Parties” or individually as a “Party.”
In consideration of the acceptance by TA of one or more accounts of User for these services and products (if more than one account is at any time opened or reopened with TA, all are covered by this Agreement and are referred to individually and collectively as the “Account”) and TA’s agreement to provide those services and products and TA providing access to its website to the User (collectively “Transactions”), TA and User agree as follows:
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES, SOFTWARE, OR PRODUCTS. THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, INCLUDING MANDATORY ARBITRATION, NO CLASS RELIEF AND WAIVER OF YOUR RIGHT TO A JURY TRIAL.
Products/Services. TA, at its discretion, may provide User with some or all of the following: (a) educational products for investing in various markets including, but not limited to, commodity futures; and/or (b) educational services for investing in various markets including, but not limited to, commodity futures; and/or (c) access to the TA website which includes mobile and tablet devices and applications (collectively “Products” or ”Services”). If you have purchased a license to any computer program marketed and sold by TA, whether SaaS or locally available (the “Software”), or to view any Services or Products, then TA grants you a single limited, non-transferable, non-exclusive, non-sublicensable, revocable, right and license to use Services, Products, or the Software and the related documentation (the “Documentation”) for personal non-commercial use in object code form only (the “Software License”). Software includes any updates, modification, bug fixes, enhancements, or other modifications. It does not include any version of the Software that constitutes a separate product because of differences in function or features. The term “Documentation” means all user manuals and other written materials created by TA to describe the functionality or assist in the use of the Software. You may use the Software on a single computer and may request additional Software Licenses from TA. The Software License does not represent a sale, transfer or assignment of the original or any copy of the Software. The Software contains copyrighted material, trade secrets and other proprietary intellectual property that are owned exclusively by TA. You may not permit concurrent use of the Software unless each user has purchased an applicable Software License from TA. You may not permit other individuals to use the Software. You may not decompile, disassemble, reverse-engineer or otherwise display the Software. You may not modify, translate, rent, lease, distribute or lend the Software, and you may not sell any right to others to use the Software on Your computer. You may not remove any proprietary notices or labels associated with the Software. You may not copy, transfer, transmit, sublicense or assign this Software License or the Software itself. You agree to pay TA the pricing listing by TA for licensure associated with the Software, and you or TA may terminate the Software License at any time, for any reason, and the license to use the Software shall immediately terminate if you fail to pay TA any amounts owed to TA under this Agreement. Upon termination, you will not be entitled to any refunds for any amounts paid by you for the Software License, unless TA is required by applicable law to provide you with a refund, if applicable. The Software has been developed at private expense and is “commercial computer software” or “restricted computer software” within the meaning of the FAR 52.227-19, the DFARS 252.227-7013, the Commercial Computer Software – Licensing at NASA FAR supplement 16-52.227-86 and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense.
TA may arrange for any Products or Services to be offered through a third party, including another entity affiliated with TA. TA shall exercise due care in the selection of such person or entity but shall have no responsibility for any actions taken or omitted by any such person.
You agree the Products, Services, and Software may not be copied, reproduced, published, or imitated, in whole or in part, which includes but is not limited to, logos, graphics, sounds, images, software and trademarks. All such intellectual property of TA is protected by international copyright, software and trademark laws and User agrees to not violate those laws by infringing upon those rights held by TA.
You agree the proprietary intellectual property of TA may not be copied, reproduced, published, modified, imitated, used to create derivative works or products, in whole or in part. You may not participate in the transfer of, post on the World Wide Web, or in any way distribute or exploit the Products, Services, or Software of TA. You are not permitted to access any of TA’s Products, Services, Software, or websites by (i) any robot, spider, scraper, or other automated devices; or (ii) remove or alter any author, trademark or other proprietary notice or legend displayed in any of TA’s intellectual property.
The User will be provided with a unique username and password to access the TA Products, Services, or Software which is non-transferable. The User will not permit any other person to have access to the same by providing the username and password to that person.
TA is a United States company and all payments are made in United States dollars (USD). If the User is a foreign customer, credit card charges originating from that country may be subject to foreign credit card processing fees.
Refunds are processed 7-10 business days after request for TA products unless otherwise stated. All Software product sales are final and there are no returns, refunds, or exchanges, unless required by applicable law or a subsequent agreement with TA. User agrees that once the Products, Services, or Software have been accessed by an email download or on the TA website by the User, final delivery of the Products, Services, or Software has been made by TA.
User may give TA instructions in writing or in another manner acceptable to TA, which shall include electronic means. In no event shall TA be deemed to have received any instruction or other order given by User orally, or in writing (including, without limitation, instructions or orders sent or given by facsimile, instant messaging or other electronic means) unless and until TA affirmatively confirms its receipt to User or acts in accordance therewith. Instructions acted upon by TA shall be deemed to have been transmitted in a manner acceptable to TA whether or not TA agreed to such manner in advance. Any oral instructions given by a duly authorized representative of User and accepted by TA shall be deemed not to violate any applicable statutes or applicable terms requiring contracts to be in writing and User waives any such defense.
TA shall be entitled to rely on any instructions received from any person that has been authorized by User. TA may amend, supplement or cancel User’s instructions when requested by User, unless TA cannot act upon such request and provided that TA’s inability to do so shall not constitute a breach of this Agreement.
User agrees to satisfy all financial obligations to TA under this Agreement or otherwise including payment for Products, Services, and Software promptly when due. User agrees to pay TA promptly on request (a) the charge for the Products, Services, or Software; (b) all delivery costs and charges including insurance, shipping and storage; (c) any taxes imposed by any applicable taxing authority; and (d) any other amounts owed by User to TA with respect to the Account or any Transactions, or the Products, Services, or Software.
All such payments shall be in United States dollars and shall be made without deduction or withholding.
User acknowledges that (a) TA does not advise on the merits of any particular Transaction and makes no representation, warranty or guarantee as to the accuracy or completeness of any market or other information or trading strategies furnished to User, and TA shall be under no obligation to provide any ongoing information; (b) any market or other information and strategies communicated to User by TA are wholly incidental to the conduct of TA ’s educational business and are provided by TA for educational purposes only; (c) such information or strategies may be inaccurate or incomplete, may not have been verified and may be changed without notice to User and may be inconsistent with proprietary investments or other strategies of TA, its affiliates or their agents; (d) User has not relied on any strategies or information furnished to it by TA; (e) TA is not providing investment or Transactions advice to User, is not acting as a fiduciary or financial, investment or commodity trading advisor for User and has not given User (directly or indirectly through any other person) any assurance, guaranty or representation whatsoever as to the merits (either legal, regulatory, tax, business, investment, financial, accounting or otherwise) of the Agreement or any Transactions; and (f) there is no warranty made by TA of any kind either implied, expressed or statutory including, but not limited to, the warranties of non-infringement of third party rights, title, merchantability, fitness for a particular purpose and freedom from computer virus.
User understands that TA and its officers, directors, members, employees, agents or representatives, and affiliated entities may have positions in and may intend to buy or sell Transactions that are furnished to the User, and that the market positions of TA or any such officer, director, member, employee, agent or representative and affiliated entity may or may not be consistent with the Transactions furnished to User by TA.
TA IS NOT A FINANCIAL ADVISOR AND DOES NOT OFFER ANY FINANCIAL ADVICE. ALL CONTENT IS PROVIDED FOR EDUCATIONAL PURPOSES ONLY. ALL DISCLOSED TRADING RESULTS IN THE DOCUMENTATION DO NOT REFLECT ACTUAL TRADING BY TA. TA’S METHODS AND OPINIONS ARE SOLELY INTENDED TO TEACH CERTAIN STRATEGIES AND STYLES OF TRADING. TA DOES NOT ACCEPT ANY RESPONSIBILITY FOR THE PROFITS OR LOSSES YOU GENERATE SHOULD YOU DUPLICATE EXACTLY WHAT TA SHOWS OR TEACHES. TA SHALL MAKE EVERY EFFORT TO ACCURATELY REPRESENT TA METHODS, PRODUCTS AND SERVICES. THE REPRESENTATION OF ANY POTENTIAL RESULTS FROM PRODUCTS AND SERVICES IS SUBJECT TO OUR INTERPRETATION. ANY REPRESENTED EARNINGS POTENTIAL FOR PERSONS WHO USE TA PRODUCTS AND SERVICES IS NOT A GUARANTEE FOR SUCCESS. YOU ACKNOWLEDGE THAT YOUR EARNINGS POTENTIAL IS SUBJECT TO MANY INDEPENDENT FACTORS, ALL OF WHICH VARY FROM INDIVIDUAL TO INDIVIDUAL AND ARE OUT OF TA’S CONTROL. AS SUCH, TA MAKES NO WARRANTIES OR GUARANTEES OF ANY KIND THAT YOU WILL EXPERIENCE ANY SPECIFIC LEVEL OF EARNINGS BY USING ITS PRODUCTS AND SERVICES. ANY EXAMPLES TA PROVIDES SHOULD NOT BE INTERPRETED AS ANY GUARANTEE OF EARNINGS. TA DOES NOT ASSERT THAT ITS PRODUCTS AND SERVICES REPRESENT ANY LEVEL OF SUCCESS. UPON REQUEST, TA MAY ASSIST YOU IN THE VERIFICATION OF CLAIMS OF ACTUAL EARNINGS AND EXAMPLES OF ACTUAL RESULTS ACHIEVED, THOUGH IT IS UNDER NO OBLIGATION TO DO SO. HOWEVER, NEITHER TA NOR ITS AGENTS OR REPRESENTATIVES ARE PERMITTED OR ABLE TO OFFER YOU ANY DIRECT FINANCIAL ADVICE. ADDITIONALLY, TA DOES NOT ASSUME ANY LIABILITY FOR ANY FINANCIAL DECISIONS THAT YOU MAKE. AS ALWAYS, IT IS YOUR SOLE RESPONSIBILITY TO DISCUSS THE LEGALITY OR FINANCIAL SOUNDNESS OF ANY DECISION YOU MAKE WITH A QUALIFIED PROFESSIONAL ADVISOR BEFORE MAKING SUCH A DECISION.
Hypothetical or Simulated Performance Results Have Certain Limitations. UNLIKE AN ACTUAL PERFORMANCE RECORD, SIMULATED RESULTS DO NOT REPRESENT ACTUAL TRADING. SINCE THE TRADES HAVE NOT BEEN EXECUTED, THE RESULTS MAY HAVE UNDER- OR OVER-COMPENSATED FOR THE IMPACT, IF ANY, OF CERTAIN MARKET FACTORS, SUCH AS LACK OF LIQUIDITY. SIMULATED TRADING PROGRAMS IN GENERAL ARE ALSO SUBJECT TO THE FACT THAT THEY ARE DESIGNED WITH THE BENEFIT OF HINDSIGHT. NO REPRESENTATION IS BEING MADE THAT ANY ACCOUNT WILL BE OR IS LIKELY TO ACHIEVE PROFITS OR LOSSES SIMILAR TO THOSE SHOWN. WHILE THE TRADING IDEAS AND TRADING METHODS SHOWN ON THIS WEBSITE MAY HAVE WORKED IN THE PAST, PAST RESULTS ARE NOT NECESSARILY INDICATIVE OF FUTURE RESULTS. WHILE THERE IS A POTENTIAL FOR PROFITS THERE IS ALSO A HUGE RISK OF LOSS. A LOSS INCURRED IN CONNECTION WITH TRADING FUTURES CONTRACTS, STOCKS, OPTIONS OR FOREX CAN BE SIGNIFICANT. YOU SHOULD THEREFORE CAREFULLY CONSIDER WHETHER SUCH TRADING IS SUITABLE FOR YOU IN LIGHT OF YOUR FINANCIAL CIRCUMSTANCES SINCE ALL SPECULATIVE TRADING IS INHERENTLY RISKY AND SHOULD ONLY BE UNDERTAKEN BY INDIVIDUALS WITH ADEQUATE RISK CAPITAL. AN INVESTOR COULD POTENTIALLY LOSE ALL OR MORE THAN THE INITIAL INVESTMENT. TA DOES NOT OFFER TRADING ADVICE OR RECOMMENDATIONS . ALL PROVIDED INFORMATION IS FOR EDUCATIONAL PURPOSES ONLY AND NOT AN OFFER OR A RECOMMENDATION TO TRADE FUTURES CONTRACTS, STOCKS, OPTIONS OR FOREX.
TESTIMONIALS APPEARING ON TRADERSAGENCY.COM OR ANY OF OUR INTERNET PROPERTIES MAY NOT BE REPRESENTATIVE OF THE EXPERIENCE OF OTHER CLIENTS OR CUSTOMERS AND ARE NOT A GUARANTEE OF FUTURE PERFORMANCE OR SUCCESS.
You are responsible for obtaining and maintaining all devices, and other equipment and other software, and all internet and wireless connectivity, mobile service, and other services needed for your access to and use of the Products, Services, and Software, and you will be solely responsible for all charges related to them. We do not take responsibility for the performance of devices, including the ongoing compatibility of devices with Products, Services, and Software. By using Products, Services, or Software, you agree to look solely to the entity that manufactured and/or sold or leased you the device for any issues related to your device.
You are responsible for obtaining and maintaining all internet services, mobile services, and other services needed for your access to and use of the Products, Services, and Software. You are responsible for any charges incurred in obtaining access to the Products, Services, and Software. Please check with your internet service provider for information on possible data usage charges.
You agree to defend, indemnify and hold harmless the TA Parties from and against any and all claims, demands, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees and costs) arising out of or related to (i) any breach of this Agreement, (ii) your User Content, and/or content or materials Uploaded by any other subscriber or user of your account that infringes any intellectual property right of any person or entity or defames any person or violates their rights of publicity or privacy, and (iii) any misrepresentation made by you in connection with your use of the Services, Products, or Software.8. NOTICES.
TA shall transmit all communications to User at User’s address (including email or internet address) as provided in writing by User and all communications so transmitted shall be deemed delivered when sent. No communication directed to TA by User shall be effective unless TA has received and acknowledged receipt, unless otherwise required by law .
Each of the following shall constitute an Event of Default (each an “Event of Default”):
(a) User fails to make a payment obligation under this Agreement when due and such failure is not cured within one business day of User’s receipt of written notice thereof; or
(b) User is in default under or violates or fails to perform on a timely basis any other term, covenant, or condition of this Agreement or any other agreement with TA or any of its affiliates (other than a payment/delivery covered in (a) above) and such default is not cured within two business days following notice of default to User).
If an Event of Default has occurred and is continuing, TA may, with notice and acting in a commercially reasonable manner, exercise one or more of the following rights:
(a) treat all of User’s obligations under or in any way related to this Agreement as immediately due and owing;
(b) cancel any outstanding Transactions or other activities or orders for Transactions or other activities in order to close User’s Account; and
(c) take any actions which TA deems appropriate.
All the above actions may be taken without any notice of default to the User.
If an Event of Default occurs, TA shall, subject to Applicable Terms, calculate in respect of all Transactions or other activities its total cost owed by User to TA. User shall promptly pay to TA any such amounts due. All rights and remedies provided in this Agreement are cumulative and not exclusive of those provided by any other agreement, operation of law or otherwise. TA shall be under no obligation to exercise any right or remedy. A failure by TA to exercise or a delay by TA in exercising any rights shall not operate as a waiver. No single or partial exercise of a remedy shall prevent further exercise of that right or remedy or the exercise of another right or remedy.
User represents and warrants, as of the date of this Agreement and while this Agreement remains in effect and at the time of each Transactions under this Agreement:
(a) User has full right, power, capacity and authority to enter into this Agreement and the Transactions and to perform its obligations pursuant to this Agreement;
(b) this Agreement and the obligations hereunder are legal, valid and binding on the User and enforceable against the User in accordance with the terms;
(c) if User is a corporation, trust or limited liability company, partnership (including a limited liability partnership) or other legal entity, it is duly organized and in good standing in the jurisdiction in which it is organized and every state or jurisdiction in which it does business;
(d) except as disclosed in writing to TA, no person has an interest in or control of any of its Accounts with TA and User is acting as principal and not agent;
(e) User may lawfully establish the Account and Transactions and such Account and Transactions will not violate any Applicable Terms;
(f) the Transactions do not and will not violate User’s charter or by-laws (or other comparable governing document) or any law, rule, regulation, judgment, decree, order or agreement to which User is subject or bound;
(g) the information provided by User, and any further information provided upon request, including any financial information, is true, complete and correct in all material respects and User shall notify TA promptly of any changes to such information;
(h) no Event of Default has occurred with respect to User and no Event of Default would occur as a result of its entering into or performing its obligations under this Agreement;
(i) User will promptly notify TA if it becomes aware of any unauthorized use of or disclosure of its passwords, ID or account numbers to any electronic system provided by TA;
(j) User is a sophisticated and informed investor that, acting alone or together with its advisors, has a full understanding of all the terms, conditions, potential losses and risks (economic and otherwise) of making investments and trading decisions and is capable of assuming and willing to assume (financially and otherwise) those potential losses and risks;
(k) User has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it has deemed necessary, and it has made its own investment and trading decisions (including decisions regarding the suitability of any investment) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any advice, statement or opinion expressed by TA;
(l) User has a full understanding of the merits and risks of each particular investment, exchange, market, execution facility and clearing organization in which it may invest or trade, including without limitation, the particular risks associated with investing and trading in commodity futures; and
(m) User and its agents are solely responsible for making the decision whether to make any investment, including the market, timing, quantity and price of each investment and has determined that entering into or terminating such investment is prudent and suitable in all respects.
(n) TA may include forums and other opportunities for you and other users to upload or otherwise provide (“Upload”) content and materials (upon Upload, “User Content”). When you Upload any User Content, you hereby grant us and our licensees a perpetual, irrevocable, worldwide, royalty-free, fully paid up, sub-licensable through multiple tiers, transferable, non-exclusive license to use, reproduce, adapt, publicly display, publicly perform, synchronize and otherwise exploit that User Content, including any Personal Elements (as defined below) in your User Content, in any manner and any media, formats, and channels now known or later developed or discovered throughout the universe in perpetuity, including in connection with advertising, promotions or third party services without notice or payment to you. For instance, we and our partners may display advertising, promotions and other content in connection with your User Content and you will not be entitled to any associated revenue. You agree that we and our licensees may give you credit for your User Content, but are not required to so. To the extent permitted by applicable law, you hereby waive and agree not to assert any “moral rights” or other proprietary rights in your User Content against us, our licensees, our representatives or other users. When you Upload any User Content, you also consent to the recording, use and reuse by us and our licensees of your voice, actions, likeness, name, appearance, profile photograph, performance, biographical material, and any other identifying information in your User Content as used or modified by us (collectively, “Personal Elements”). When you Upload any User Content, you represent and warrant that you own that User Content or have sufficient intellectual property and proprietary rights in order to make the grants in these Terms. You agree to pay any monies owed to any party based on our and our licensees’ use of your User Content.
User shall be deemed to repeat each of the foregoing representations and warranties while this Agreement continues in effect and as of the date of each investment and while that investment remains open. User agrees to promptly notify TA in writing if any of the warranties and representations applicable to it contained in this Agreement become inaccurate or in any way cease to be true, complete and correct.
TA represents and warrants that it is duly organized and is authorized to enter into this Agreement, the terms of which constitute its valid and binding obligations.
TA makes no representations or warranties as to the Software, Products, or Services with respect to their accuracy, timeliness, reliability, completeness or otherwise.
WE PROVIDE THE SOFTWARE, PRODUCTS, AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR PARENT COMPANIES, EACH OF OUR AFFILIATES, AND ALL SUCH PARTIES’ DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND LICENSORS (COLLECTIVELY, THE “TA PARTIES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. NONE OF THE TA PARTIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SOFTWARE, PRODUCTS, OR SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NONE OF THE TA PARTIES SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY OTHER USER OF THE SOFTWARE, PRODUCTS, OR SERVICES. WITHOUT LIMITING THE FOREGOING, THE TA PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH THE TERMS OR (2) CONTENT POSTED TO THE SOFTWARE, PRODUCTS, OR SERVICES BY YOU OR ANY THIRD PARTY.
IN NO EVENT WILL THE TA PARTIES’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SOFTWARE, SERVICES, PRODUCTS, AND THIS AGREEMENT EXCEED (A) THE AMOUNT (IF ANY) PAID BY YOU TO TA IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY OR (B) ONE HUNDRED DOLLARS ($100), WHICHEVER IS LESS.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF THE ACTS OR OMISSIONS OF THE TA PARTIES OR YOUR USE OF THE SOFTWARE, SERVICES, OR PRODUCTS ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE SOFTWARE, SERVICES, OR PRODUCTS
BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SOME OF THE LIMITATIONS SET FORTH IN THESE TERMS MAY NOT APPLY TO YOU. THE TA PARTIES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. THIS PARAGRAPH WILL ONLY APPLY IF AN ARBITRATOR OR COURT WITH APPLICABLE JURISDICTION IN ACCORDANCE WITH THESE TERMS FINDS EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY TO BE UNCONSCIONABLE OR OTHERWISE VIOLATE APPLICABLE LAWS. NOTHING IN THESE TERMS SHALL EFFECT A WAIVER OF ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
This Agreement shall continue in force until written notice of termination is given by User or TA. Termination shall not relieve User or TA of any obligations arising prior to termination. However, upon termination of this Agreement, all amounts owed by User to TA shall become immediately due and payable. Termination shall not affect any rights or obligations which may have already arisen or arise thereafter as a result of events occurring prior to termination, including but not limited to any indemnification and payment obligations.
14(a). Binding Arbitration of All Disputes. No Class Relief.
This Section 14(a) is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and we agree that we intend that this Section 18 satisfies the “writing” requirement of the Federal Arbitration Act. If binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of Section 14(b) shall apply to all relevant disputes between you and us.
We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to this Agreement, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Services, Products, Software, or other issues with us, (ii) any subscriptions or other purchases, transactions or relationships related to your use of the Services, Products, Software, or (iii) any data or information you may provide to us or that we may gather in connection with such use, interaction, subscriptions, purchases, transactions or relationships (collectively, “TA Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Services, Products, Software, or engaging in any other TA Transactions or Relationships with us, you agree to binding arbitration as provided below.
We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using the Services, Products, or Software, you agree that any complaint, dispute, or disagreement you may have against us, and any claim that we may have against you, arising out of, relating to, or connected in any way with this Agreement or any TA Transactions or Relationships shall be resolved exclusively by final, confidential and binding arbitration (“Arbitration”) before a single arbitrator administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect that would be applicable to the matter in dispute, we agree to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section 14(a), provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Section 14(a) shall not prevent any party from seeking provisional remedies (that is, a temporary restraining order or preliminary injunction) from a court of appropriate jurisdiction. You further agree that:
The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and us (the “Arbitrator”).
The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions, including but not limited to any claim that all or any part of these Terms is void or voidable.
The Arbitration shall be held either: (i) at a location determined pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and us; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
The Arbitrator (i) shall apply internal laws of the State of Florida consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Florida or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief.
The Arbitration can resolve only your and/or our individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated.
The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets.
In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith.
In the event you recover an Award greater than our last written settlement offer, the Arbitrator shall also have the right to include in the Award our reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but we shall in all events bear our own attorneys’ fees.
With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitrate any dispute between us and you, and must instead bring any claims subject to subsection (k) below and Section 14(b).
We may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after we have given notice of such modifications and only on a prospective basis for claims arising from TA Transactions or Relationships occurring after the effective date of such notification. If any modification pursuant to this subpart (j) is deemed to be invalid, unenforceable, or illegal, then the arbitration provisions effective at the time of your agreement to these Terms shall govern any dispute or disagreement between you and us regarding TA Transactions or Relationships.
Notwithstanding the foregoing arbitration provisions, and subject to the rest of this Agreement at your option, you may bring any claim for damages you have against us in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
You and we agree to maintain the confidential nature of the Arbitration and shall not disclose the fact of the Arbitration, any documents exchanged as part of any mediation, proceedings of the Arbitration, the Arbitrator’s decision and the existence or amount of any Award, except as may be necessary to prepare for or conduct the Arbitration (in which case anyone becoming privy to such confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by applicable law or court order.
14(b). Dispute Resolution Only if a Tribunal has Ruled that Arbitration is Prohibited by Applicable Law
This Section 14(b) applies only where applicable law, as determined by a court with appropriate jurisdiction, prohibits arbitration of disputes in accordance with Section 14(a).
If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Services, Products, Software, this Agreement or to any of our actual or alleged intellectual property rights (collectively, a “Section 14(b) Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Section 14(b) Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 14(b). Your notice to us must be sent to:
20 N. Orange Ave.
Orlando, FL 32801
For a period of sixty (60) days from the date of receipt of notice from the other party, we and you will engage in a dialogue in order to attempt to resolve the Section 14(b) Dispute, though nothing will require either you or us to resolve the Section 14(b) Dispute on terms with respect to which you and us, in each of our sole discretion, are not comfortable.
The parties agree that the state or federal courts in Florida shall have non-exclusive jurisdiction of any Section 14(b) Dispute.
To the maximum extent permitted by the mandatory laws in your country of residence, these Terms and any Section 14(b) Dispute arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the U.S. and the State of Florida without regard to its conflicts of law provisions.
The foregoing provisions of this Section 14(b) will not apply to any legal action taken by us to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the TA Services, any Content, your User Content and/or our intellectual property rights (including such as we may claim may be in dispute), our operations, and/or our products or services.
Under California Civil Code Section 1789.3, California users of the TA Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.15. MISCELLANEOUS.
For purposes of this Agreement “affiliate” means, in relation to any User, any entity controlled, directly or indirectly, by the User, any entity that controls, directly or indirectly, the User or any entity directly or indirectly under common control with the User. Affiliate means, in relation to TA (a) all other companies owned materially or controlled in substantial part, directly or indirectly, by TA at any time; and (b) the successors or assigns of TA (whether by way of consolidation, amalgamation, merger, transfer of assets or other corporate reorganization). For this purpose, “control” of any entity or person means ownership of a majority of the voting power of the entity or person.
Recording: The User consents, without further notice, to the recording and monitoring by TA of all telephone conversations between TA and the User. Records of such conversations remain the sole property of TA and may be used as evidence of such conversations. In addition, communications by mail, electronic communications systems, facsimile or otherwise may be monitored, recorded and retained by TA .
Entire Agreement and Modifications: This Agreement constitutes the entire agreement between TA and User and supersedes all understandings, agreements, or communications that are related to the subject matter of this Agreement. TA may amend this Agreement at any time with the consent of User. No provision of this Agreement shall be waived, altered, modified or amended unless agreed to in writing by TA. Clauses in this Agreement are for ease of reference only and shall have no substantive meaning. All references to “unless otherwise agreed” shall mean a written agreement signed by TA.
No Third-Party Rights: Nothing in this Agreement, express or implied is intended to confer any rights on any third party and no individual or entity who is not a Party to this Agreement shall have any rights under this Agreement.
Severability and Illegality: If any provision of this Agreement becomes invalid, illegal or unenforceable or at any time becomes inconsistent with Applicable Terms, such inconsistent, illegal, invalid or unenforceable provision shall be superseded or modified to conform to relevant law, rule or regulation, but in all other respects this Agreement shall continue in full force and effect.
Cumulative Rights: The rights and remedies conferred upon the Parties shall be cumulative, and any forbearance to take any remedial action available under this Agreement shall not waive any right at any time or from time to time thereafter to take such action. TA’s failure at any time to insist on strict compliance with this Agreement or any of its terms shall not constitute a waiver by TA of any rights.
Successors and Assigns: This Agreement shall inure to the benefit of the Parties hereto and their successors and assigns, and shall be binding upon the Parties hereto and their executors, trustees, administrators, successors and assigns, provided, however, that this Agreement is not assignable by User without the prior written consent of TA. TA may assign any of its rights or obligations under this Agreement without notice to User and User agrees to take such actions as TA may reasonably require to effect such an assignment.
We offer a mobile messaging program (the “Program”), where, if you opt-in to the Program, you agree to these terms and to receive marketing text messages from us. The Program is optional and not a condition of purchase. The Program allows users to receive SMS/MMS mobile messages by voluntarily and affirmatively opting into the Program, such as through online or application-based enrollment forms.
The messages we send to you include marketing messages, and may also include cart abandon messages, as well as messages allowing you to make purchases using previously-saved account information or account information that you provide, and messaging frequency may vary. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Regardless of the opt-in method you utilized to join the Program, you agree that these terms apply to your participation in the Program if you opt-in to do so. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from us.
While, if you opt-in, you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving mobile messages. Under no circumstances will we be responsible for any messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number.
SMS/MMS MOBILE MESSAGING OPT-OUT: If you do not wish to continue participating in the Program, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
DUTY TO NOTIFY AND INDEMNIFY REGARDING SMS/MMS MOBILE MESSAGING: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the opt-out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events. Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with us. For support regarding the Program, text “HELP” to the number you received messages from.
We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida “Do Not Call” Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by us in direct response to mobile messages or requests from you (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
Opt outs should be submitted in accordance with the procedures set forth above. The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage, or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control; we are not liable for delayed or undelivered mobile messages.
MMS DISCLOSURE: The Program may send SMS TMs (terminating messages) if your mobile device does not support MMS messages
TA and its affiliated organizations respect the intellectual property rights of others, and we require that our advertising partners do the same. TA complies with the notice-and-takedown procedures set out in the United States Digital Millennium Copyright Act (DMCA), which applies to content reported and removed for violating U.S. copyrights. If your content is removed under the DMCA takedown process as a result of a takedown notice, you will have an opportunity to file a counter-notification. When we receive an effective DMCA counter-notification, we forward it to the party that reported the content. The information they receive includes your contact information.
DMCA (“Digital Millennium Copyright Act”) Takedown Notices
Content owners of copyrighted material and their representing agents may submit a DMCA notice to our registered Copyright Agent if they believe that infringing activity has taken place. The abuse team will only consider valid reports of infringement, you may submit a complete DMCA notice that features all the points described below only if the representing party sending the request is the content owner or the authorized agent acting on the behalf of the copyright owner.
To be effective under the DMCA, any notification of claimed infringement must be in a written communication that includes substantially the following which must include a certification made under penalty of perjury:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, as well as information sufficient for TA to determine the legitimacy of the signature and the identity of the signatory;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site, including citation to the application copyright registrations where available;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit TA to locate the material, including a timestamp and visible identification of the material in a screenshot or comparable medium, with all metadata intact;
(iv) Information reasonably sufficient to permit TA to contact the complaining party, including an email address, telephone number, and, if available, physical mail address;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Any such notifications of claimed infringement must be sent to:
TA Copyright Agent
1420 Edgewater Drive
Orlando, FL 32804
Please note if any notification of claimed infringement does not meet the above requirements, TA has no responsibility to respond to or act on any such defective notification of claimed infringement.
DMCA Counter Notification
If you receive a notification of claimed infringement, you may submit a counter notification to us pursuant to the DMCA. It must include the following, which includes a certification made under penalty of perjury:
(i) Your physical or electronic signature, as well as information sufficient for TA to determine the legitimacy of the signature and the identity of the signatory;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the Middle District of Florida, and that you will accept service of process from the person who provided notification under the DMCA or an agent of such person.
Any such counter notification must be sent to:
TA Copyright Agent
1420 Edgewater Drive
Orlando, FL 32804