1.1. Mercor Index Ltd ("Mercor", "we", "us") provides Charts, Alerts, Trading, Portfolio Management, Investment Club and Taxation products, collectively referred to as the "Services", for persons trading or investing in securities that include Stocks, Foreign Exchange, Spread Betting, CFDs, Options, Funds or other types of securities. "Alerts" are used to provide a notification of when price, trendline, technical analysis, fundamental analysis, news and trade events occur. Alerts can be used to backtest and simulate trading strategies, or execute orders. The Services are delivered via the on-line web base service application or applications that are downloaded onto electronic devices (the "System").
1.2. Any person wishing to use the Services via the System (the "Subscriber", "you") must read the following terms and conditions of use ("this Agreement") which shall govern the use of the System. By subscribing to the System, the Subscriber is deemed to have read and understood this Agreement.
1.3. This Agreement governs the relationship between Mercor and the Subscriber, and sets forth sets forth the terms and conditions that govern the Subscriber use of the System. The use of the System requires the Subscriber to confirm that the Agreement has been read and agreed by clicking on a checkbox when the Subscriber is registering to use the System.
1.4. Mercor will not provide you with any advice on the merits or suitability of the Subscriber entering into this Agreement.
1.5. Mercor will not provide you with any investment advice although we may at our discretion provide you with generic, educational or factual information from time to time on the nature, the terminology and of the procedures involved with using the System. You should rely on your own judgement when using the System. If any of the Mercor staff members appear to give advice, the Subscriber agrees that such advice is given on a personal level and is never the official position of, or advice from, Mercor.
1.6. By accepting this Agreement you authorise Mercor to telephone or otherwise contact you at any time whatsoever in order to discuss any aspect of your account or use of the System.
1.7. By accepting this Agreement, you consent to receiving information regarding your account and our products, for example but not limited to email, website address links and the website in general.
2. Obtaining the Services
To obtain the Services, the Subscriber shall:
2.1. Complete an application form setting up, among other things, a user name and password ("User ID") and making an initial selection of the Services which may be amended as required by the Subscriber from time to time (the "Application Form");
2.2. Provide payment details for the relevant Services if the user Subscription package requires it.
3. Accuracy & Security
3.1. Mercor will use reasonable endeavours to ensure that any information, data, services, systems, articles, bulletins, notifications and other content published from time to time on the System ("Content") is accurate and complete. However, neither Mercor nor its suppliers warrant that the Content is accurate or complete.
3.2. Certain information on the System is provided by third parties and the Subscriber hereby acknowledges that neither Mercor nor its suppliers have any control over the accuracy or completeness of such third party Data.
3.3. It is the sole responsibility of the Subscriber to ensure the security of the User ID and the Subscriber hereby agrees not to disclose or permit to be disclosed the User ID to any third party.
3.4. Mercor will take all reasonable security measures to ensure that the Subscriber's personal data is not disclosed. However, the Internet is an open system and Mercor cannot and does not guarantee that the personal data provided will not be accessed by others.
3.5. Some content on the System contain links to and from websites not operated or maintained by Mercor ("Third Party Systems"). When the Subscriber enters a Third Party System by means of links from the System, the Subscriber hereby acknowledges and agrees that:
3.5.1. they will be subject to the terms and conditions of the Third Party System they have entered; and
3.5.2. Mercor is not responsible or liable in any way with regard to any advice, information or Content which may be provided on such Third Party Systems including, but not limited to, any trading services available on such Third Party System,;
3.5.3. Mercor does not endorse or make any recommendation about products and services that are advertised or promoted on such Third Party Systems.
3.6. Professional advice should be sought by the Subscriber in relation to the correct use of the Content as provided on the System.
4.1. The Fees for the Services (the "Fees") and the various methods of paying the relevant Fees, shall be as displayed on the System from time to time.
4.2. Mercor reserves the right to increase its Fees by giving the Subscriber 30 days' notice in writing by email and any such price increase shall take effect on the next due payment date for the relevant Subscriber.
4.3. The Subscriber may elect to terminate this Agreement in accordance with clause 9.2 if the Subscriber no longer wishes to subscribe to the Services in the light of any such price increase and the Subscriber shall be deemed to have accepted the price increase if the Subscriber does not exercise such right of termination.
4.4. Notwithstanding Clause 10.1 below (Force Majeure), no refund of any Fees paid in advance will be made to the Subscriber except where the System and/or the Services were continuously unavailable for a minimum period of seven days in which cases a pro rata refund (calculated on a daily basis) will be made to the Subscriber. For the avoidance of doubt, no refund shall be provided where the service is down due to scheduled maintenance on the System.
5. The Subscriber's Undertakings
5.1. The Subscriber shall not at any time:
5.1.1. post or transmit on the System any unlawful, fraudulent, libellous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, or otherwise objectionable information, Content or materials of any kind (including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any applicable laws, rules, regulations, codes of conduct or market conventions);
5.1.2. post or transmit on the System any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial messages or engage in spamming or flooding; or
5.1.3. copy, upload, download, post, publish, transmit, reproduce or distribute in any way, Content or any other information or material appearing on the System (including, without limitation, any Alerts, text, data, software, graphics or programming code) without Mercor' prior written consent;
5.2. The Subscriber undertakes to:
5.2.1. use the Content and/or the information obtained via the Services ("Confidential Information") for the Subscriber's personal information and use only (the "Purpose");
5.2.2. receive, hold and keep confidential the Confidential Information in the strictest confidence and to take all reasonable security precautions in the safekeeping of the Confidential Information and in preventing its unauthorised disclosure to third parties; and
5.2.3. make or keep no copies of the Confidential Information unless necessary for the Purpose.
6. Availability of Services
6.1. Mercor will use all reasonable endeavours to keep the Services in operation during the term of this Agreement. However Mercor' obligations will be suspended if and for so long as any circumstances occur which prevent it from delivering the Services.
6.2. Mercor reserves the right to alter the Content or manner of presentation of the Services and to remove any file or any of its contents within the Services either temporarily or permanently.
6.3. The Subscriber hereby acknowledges that:
6.3.1. Mercor may from time to time update the technology used for the System and the Services;
6.3.2. it shall be the Subscriber's responsibility to ensure the compatibility of the telecommunication lines and Subscriber's equipment (including but not exclusively, computers and mobile phones), to secure uninterrupted and continuous receipt of the Services;
6.3.3. if, due to the Subscriber's failure of ensuring compatibility in accordance with Clause 6.3.2 above, the Services cannot continue, Mercor may, at its absolute discretion, permit the use of any payment of Fees already made and in credit at the relevant time for an alternative service.
6.3.4. Mercor reserve the right to close or suspend the Subscriber account at any time without notice or consent, should the use of the System by the Subscriber cause degradation in the performance of the System or be in breach of the terms of the Agreement. If a Subscriber creates an Alert that causes performance degradation to the System, Mercor reserves the right to pause or delete the Alert without notice. Reasonable measures will be taken to notify the Subscriber using email should Mercor exercise this right, and it will be the obligation of the Subscriber to use alternative means to execute trades or close positions with the Third Party Broker where applicable.
6.3.5. If an Alert or pending Trade order is using market data that is subject to a split or consolidation, Mercor reserves the right to pause, delete or modify the Alert or Trade without notice or consent to reflect the underlying Capital Reorganisation. Reasonable measures will be taken to notify the Subscriber using email should Mercor exercise this right.
6.3.6. If an Alert is using market data that is suspended, Mercor reserves the right to pause, delete or modify the Alert without notice or consent. Reasonable measures will be taken to notify the Subscriber using email should Mercor exercise this right.
6.3.7. If the Subscriber has not logged into the System within three months, Mercor reserves the right to pause or delete Alerts and pending Trade orders, without consent. Reasonable measures will be taken to notify the Subscriber using email should Mercor exercise this right.
6.3.8. Mercor has the right to modify or replace this Agreement, change suspend or discontinue services available on the System at any time. Reasonable measures will be taken to notify the Subscriber using email should Mercor exercise this right.
7. Intellectual property rights
7.1. The copyright in all literary works comprising the database is owned by Mercor or by its information suppliers.
7.2. The Subscriber acknowledges that the permission to use those copyright works is limited to the rights expressly conferred by this Agreement.
7.3. The Subscriber agrees to keep confidential any information (other than the Data) supplied to it by Mercor and expressly designated as 'confidential'. This permission shall survive termination of this Agreement.
8. Liability and indemnity
8.1. The Subscriber acknowledges that Mercor makes no express or implied warranties as to the merchantability or fitness for a particular purpose of the Services or the Content.
8.2. Nothing in this Agreement restrict or exclude Mercor' liability for death or personal injury caused by our negligence.
8.3. Subject to the above, Mercor shall not be liable for any loss, damages, costs, claims or expenses whatsoever arising from:
8.3.1. the acts, errors or omissions of third parties;
8.3.2. the accuracy or completeness of the System or Content;
8.3.3. the Subscriber's failure to ensure the security of the User ID; and
8.3.4. the Subscriber's use of the System and Content otherwise than in accordance with this Agreement;
8.3.5. notifications not received in a timely manner or not at all;
8.3.6. the accuracy, failure, errors, omissions, timeliness, accuracy or completeness of:
184.108.40.206. trades sent to or received from the Third Party Brokers;
220.127.116.11. synchronising trading activity, swaps, cash deposits, cash withdrawals, dividends, charges or portfolio related transactions with Third Party Brokers;
18.104.22.168. trade execution reports and representation of the open positions;
22.214.171.124. Third Party System or Third Party Broker market data;
126.96.36.199. trades not executed, updated or represented correctly within the System;
188.8.131.52. the Third Party Brokers and Third Party Systems.
8.3.7. the rejection or cancellation of trades by the Third Party Broker
8.3.8. the availability of the System
8.3.9. the security of the System or integration with Third Party Systems or Third Party Brokers being compromised
8.4. In no event shall Mercor be liable for any indirect or consequential loss or damages whatsoever (including, without limitation, loss of profits) incurred by the Subscriber or in respect of any claim made against the Subscriber by any third party arising as a results of, or in connection with, the Subscriber's use of the System or Content.
8.5. The System and Content is provided 'as is'. All warranties whether express or implied under law (including, without limitation, any warranties in relation to the Content, information, data, Services, interrupted use, errors, omissions, delays, termination of service, loss of data for any reason, fitness of purpose, infringement of third party property rights) are hereby expressly excluded to the fullest extent permitted by law.
8.6. The Subscriber acknowledges that the way in which the Subscriber uses or interprets the System, Services and/or the Content, is dependent upon the exercise of the Subscriber's own skill and judgment.
8.7. Mercor is not an advisor and the System does not provide advice. The use of the System is directed by the Subscriber. The System provides functionality that the Subscriber can program to execute trading strategies with Third Party Brokers and manage portfolios. The Subscriber is solely responsible for any investment or trading decisions made when using the System.
8.8. Mercor has made reasonable endeavours to ensure that any content provided is accurate and complete. The taxation Services are intended to assist Subscribers in the preparation of tax returns and Mercor cannot verify the accuracy of the information entered, guarantee the accuracy of the calculated tax liability or assist in the organisation of tax affairs. Before using any of the content provided for the completion of tax returns or other purposes, you must consult with a professional tax advisor.
9.1. The Term will begin (or be deemed to begin) on the date in which this Agreement is accepted by the subscriber and will continue in force unless and until terminated in accordance with this Clause 9.
9.2. Either party may terminate this Agreement at any time by giving not less than 30 days notice in writing by email and such termination shall take affect on the next due payment date for the relevant Subscriber.
9.3. Termination of this Agreement shall not affect any obligations by either party to the other which are outstanding as at the effective date of termination nor any of the provisions of this Agreement which are expressed to survive termination.
9.4. Mercor shall have the right to assign its rights and obligations under this agreement to a third party.
10.1. Force Majeure
10.1.1. If either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control (including but not limited to war national emergency flood earthquake strike or lockout (other than a strike or lockout induced by the party so incapacitated) or illness) the party unable to fulfil its obligations ("the Incapacitated Party") shall immediately give notice of this to the other party and shall do everything in its power to resume full performance of its obligations as soon as possible;
10.1.2. Subject to compliance with the requirements of sub-clause 10.1.1 above, the Incapacitated Party shall not be deemed to be in breach of its obligations under this Agreement during the period of incapacity and the other party shall continue to perform its obligations under this Agreement save only in so far as they are dependent on the prior performance by the Incapacitated Party of obligations which it cannot perform during the period of incapacity;
10.1.3. If the period of incapacity exceeds three months then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.
10.2. Whole agreement
This Agreement contains the whole agreement between the parties and supersedes any prior written or oral agreement between them in relation to its subject matter and the parties confirm that they have not entered into this Agreement upon the basis of any representations that are not expressly incorporated into this Agreement. No oral explanation or oral information given by any party shall alter or affect the interpretation of this Agreement.
10.3. Reservation of rights
All rights not specifically and expressly granted to the Subscriber by this Agreement are reserved to Mercor.
10.4. Governing law and jurisdiction
10.4.1. This Agreement shall be governed by and construed in accordance with the law of England and Wales in every particular including formation and interpretation and shall be deemed to have been made in England.
10.4.2. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this agreement or the legal relationships established by this agreement.
10.5.1. Any notice consent or the like (in this clause referred to generally as 'notice') required or permitted to be given under this Agreement shall not be binding unless in writing and may be given personally or sent to the party to be notified by pre-paid first class post or by electronic mail or facsimile transmission at its address as set out on the System for Mercor and in the Application Form for the Subscriber or as otherwise notified in accordance with this clause;
10.5.2. Notice given personally shall be deemed given at the time of its delivery;
10.5.3. Notice sent by post in accordance with this sub-clause shall be deemed given at the commencement of business of the recipient on the second business day following its posting;
10.5.4. Notice sent by electronic mail or facsimile transmission in accordance with this sub-clause shall be deemed given at the time of its actual transmission provided that the sender does not receive any indication that the electronic mail message or facsimile transmission has not been successfully transmitted to the intended recipient.
The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of this are received by either of the parties from any relevant competent authority, the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or at Mercor' discretion it may be severed from this Agreement and in either event the remaining provisions of this Agreement shall remain in full force and effect.
10.8. Survival of terms
The provisions of this clause 10.8, payment of Fees, confidentiality and intellectual property undertakings under the terms of this Agreement shall survive the termination or expiry of this Agreement.
10.9. Local Tax charges
All sums payable to Mercor under this Agreement are exclusive of UK VAT (at the current rate of 17.5% or at such rate as may be in force at the due time for payment) which shall, where applicable, be paid in addition to any Fees due.
10.10. Rights and remedies cumulative
All rights and remedies available to the parties under the terms of this Agreement and under the general law shall be cumulative and no exercise by either of the parties of any such right or remedy shall restrict or prejudice the exercise of any other right or remedy granted by this Agreement or otherwise available to it.
This Agreement shall be personal to the Subscriber.
10.12. This Agreement
10.12.1. In this Agreement unless the context requires otherwise:
(a) words and expressions that are defined in the Copyright, Designs and Patents Act 1988 shall bear the same meanings in this Agreement;
(b) words importing the singular number shall include the plural and vice versa;
(c) words importing any particular gender shall include all other genders;
(d) words importing the whole shall be treated as including a reference to any part of the whole.
10.12.2. Any reference in this Agreement to any statute or statutory provision shall be construed as referring to that statute or statutory provision as it may from time to time be amended modified extended re-enacted or replaced (whether before or after the date of this Agreement) and including all subordinate legislation from time to time made under it.
10.12.3. The expression 'copyright' shall include the entire copyright design right rental right right to authorise or prohibit lending and database right subsisting now or created at any time during the Term under the laws of the United Kingdom and all analogous rights subsisting now or created at any time during the Term under the laws of each and every other jurisdiction throughout the Territory.
10.12.4. References in this Agreement to clauses schedules and exhibits are to clauses of and schedules and exhibits to this Agreement except where otherwise expressly stated.
10.12.5. Headings are used in this Agreement for the convenience of the parties only and shall not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the clauses schedules or exhibits to which they relate.
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