Apifiny Algo License And Subscription Agreement.Last Updated: June, 2022
Please read this carefully. This is a legal and binding agreement (“Agreement”) between the entity or person who has signed this Agreement (“your or your”) and Apifiny (“Licensor”) which covers the terms and conditions of your permitted right and license to use, and your promises and obligations regarding your use of (“Subscription”):
(A) one or more Apifiny proprietary or branded (including white-labeled under a license to Licensor or an affiliate of Licensor from a third party; a “Third-Party Licensor”) software or electronic applications, programs, interfaces, and other functional tools (for charting, research, analysis, simulated trading, information viewing and processing, etc.) relating to the Apifiny Algo product suite, whether downloadable, web-based,mobile phone-based, or via a mobile app, and whether server-based, cloud-based or in a virtual environment (the “Software”); together with
(B) market exchange and other market or financial data, news and business information (“Data”) made available by Licensor or its data suppliers, which may include digital asset, equities, options, futures and other securities, commodity or derivatives exchanges (“Exchanges”), and other suppliers of Data (collectively, including the Exchanges, and including Licensor with respect to any of its own Data, the “Data Suppliers”), and distributed, redistributed or otherwise made available to you via the Software. Your Subscription may be solely a charting, research and analysis subscription, or one used together with an online trading account offered by Licensor or an affiliate of Licensor (a “Trading Affiliate”), and each such Trading Affiliate is authorized to offer the Subscription and this Agreement to you when you apply for an account with such Trading Affiliate.
By agreeing to and accepting (as part of an online application or any other sign-up process) this Agreement, you are agreeing to be legally bound by the terms of this Agreement. You understand and agree that this Agreement has the same binding legal force and effect of a contract signed in ink and delivered in person. You further acknowledge and agree that the foregoing applies equally to any Third-Party Licensor or Data Supplier license or other agreement that you are required to acknowledge or accept when you log in to the Software.
THIS AGREEMENT DOES NOT COVER OR RELATE TO THE OPENING OF A TRADING ACCOUNT OR TRADING SERVICES OR TRANSACTIONS OF ANY KIND. ALL MATTERS RELATING TO TRADING SERVICES AND TRANSACTIONS ARE COVERED BY AGREEMENTS BETWEEN YOU AND THE LICENSOR OR TRADING AFFILIATE WITH WHICH YOU HAVE SIGNED OR OTHERWISE ACCEPTED A SEPARATE CUSTOMER ACCOUNT.
1.GRANT OF LICENSE.
(a) Licensor grants to you a nonexclusive and non transferable license to use the Software and Data included in the Subscription on a single computer terminal (at any given time). If the Software or Data are being used on a network, each individual accessing the Software or Data through the network must have a separate Software and Data license to, or subscribed for by, that individual (i.e., there must be a Subscription enabled per individual). Your Subscription may be terminated by Licensor immediately with or without notice, if you fail to make any required payment or violate any provision of this Agreement or of any other agreement you have with Licensor, or any of the Trading Affiliates (or other affiliate of Licensor), or any of the Data Suppliers, including any Exchanges. Licensor also has the right to terminate your Subscription at any time, for any lawful reason or no stated reason, with or without notice to you, to the fullest extent permitted by applicable laws. This Agreement and the license and rights granted may not be transferred, assigned, leased, rented, sublicensed or otherwise transferred by you. In no event shall the Software or the Data be used by you for, or in connection with, any unlawful purpose.
(b) You are also granted a nonexclusive, nontransferable license to use precise reproductions of static screen shots of charts displayed by the Software in connection with your business, solely for illustrative or informational purposes, and only if your business is related to investment analysis (such as an investment analysis website, financial newsletter or book, etc.). In order to utilize this right, you may not in any manner state or imply that Licensor endorses you, your company or any of your or its products or services, that the use of any Licensor or Trading Affiliate’s product or service will guarantee profits, increased profits or minimization of losses, or that Licensor, or the Trading Affiliates, recommend any particular trading approach, system, strategy, or account type. Also, each screen shot reproduced must be displayed under a prominent caption that reads “Apifiny Inc. All rights reserved.” The screen shot may not be altered or presented in a manner that leads or may lead the viewer to believe that the Software has capabilities which it does not. This license may be terminated by Licensor at any time, for any reason, upon notice to you of such termination. IN NO EVENT MAY ANY OF THE DATA BE DISSEMINATED FOR ANY EXTERNAL USE.
(c) To the extent you are using a Subscription, you will obtain a Subscription password that enables your use of the Software and Data (your “Password”). You agree to keep your Password confidential, and not to disclose it to anyone else, publish it, or allow anyone else to use it. You acknowledge and agree that, in addition to providing your unique Password, Licensor may implement technical measures that enable the Apifiny® Affiliates to verify your compliance with the terms of this Agreement, as well as authentication that you are the user, such as multi-factor or 2FA authentication, which may, at Licensor’s discretion, be an optional feature you can select or required for each login or on some other timed basis.
2.OWNERSHIP AND COPYRIGHT
The Software has been developed by or for Licensor or, if you are using Software of a Third-Party Licensor, by or for such Third-Party Licensor. The Data has been assembled, formatted and supplied by either Licensor (or its affiliates) and/or the Data Suppliers, and is being offered to you pursuant to licenses or sublicenses granted by Licensor or the Data Suppliers referenced or included herein. The Software and the Data were developed, compiled, prepared, revised, selected and arranged by Licensor (or Third-Party Licensors, where applicable) and the Data Suppliers through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, constitute confidential and valuable industrial property and trade secrets, and are protected by United States copyright laws and international treaty provisions as well as other intellectual property laws and treaties. All title and copyrights in and to the Software and the Data and any accompanying printed materials are owned by Licensor or, as applicable, Third-Party Licensors, or the Data Suppliers (or their suppliers). You agree not to duplicate, reproduce, publish, retransmit or redistribute the Software or Data, except as otherwise specifically permitted by this Agreement. You may not directly or indirectly offer or transmit all or any portion of the Software or Data to third parties whether by way of subscription, license, sale or otherwise. You may not modify, translate, reverse engineer, decompile or disassemble the Software or the Data.
(a) Fees, charges and payment terms (collectively, “Fees”), if any, for the Software and/or the Data will be as disclosed to you in the application process for your Subscription (including an application process for an account with a Trading Affiliate in which this Agreement is included), or on an Apifiny® company website, or as part of your login process, or as otherwise published in the Software or in an Apifiny® company client center. The Fees may change at any time and from time to time, and will be published on an Apifiny® company website, or as notifications in the Software, or by email or other electronic means, or any other suitable method. Your use of Software or Data after any such change in Fees constitutes your unconditional and irrevocable acceptance of such changes.
(b) You agree to pay when due all Fees for your Subscription. If your Subscription is being used in connection with Licensor or its Trading Affiliate’s services, Licensor or such Trading Affiliate is authorized to offer the Subscription and this Agreement to you, and you hereby authorize Licensor or such Trading Affiliate to debit any accounts you have with such Trading Affiliate the full amount of all Fees (if any are charged), in advance of the period or periods to which the use by you of your Subscription relates. Licensor or such Trading Affiliate, in its discretion, may not charge you any separate amounts for your use of your Subscription.
(c) If any separate Fees are payable by you for this Subscription, regardless of who charges them to you, no refunds or prorated refunds are required to be made to you. Your Fees are for permitted access to the Software and the Data, and do not change, and are not reduced or prorated, based on your actual login to, or use of, the Software or the Data, even if you rarely or never use them, and your promises and obligations under this Agreement are the same whether or not you are charged Fees. Also, any and all applicable sales or use taxes, as well as all applicable Exchange fees and charges (unless expressly included in your Subscription for no additional charge), shall be your responsibility and paid by you in full and on a timely basis, typically in advance of services rendered.
(d) If you are paying Licensor for your Subscription by credit card, you hereby authorize Licensor or its affiliate to use the credit card information furnished by you to Licensor or its affiliate for purposes of fulfilling your payment obligations under this Agreement. You further represent and warrant that (i) the credit card information provided by you (card number, expiration date and card-holder’s name) is accurate and valid in all respects and lawfully authorized for use, and that you are providing your credit card information to Licensor fully intending and expecting your credit card to be fully charged all Fees; and that (ii) such credit card belongs to you or has been authorized for use by you by the valid cardholder. Upon expiration of your credit card, you shall notify Licensor of the new credit card expiration date and all other relevant new information pertaining to the new credit card. Please see the Privacy Statement posted by link from the Apifiny® company websites, which you acknowledge you have read and understand.
(e) Payments not received by their due dates, regardless of the cause (unless the cause is solely the fault of Licensor or one of its affiliates) will be assessed a late charge fee equal to Licensor’s then current late charge fee amount, which shall not exceed the highest rate permitted by applicable law. Payments returned to Licensor for insufficient funds will also result in a service charge fee equal to the maximum allowable returned check fee under Florida law. You shall thereafter be charged interest at the maximum legal interest rate on any unpaid balance.
4.SOFTWARE ISSUES AND MODIFICATIONS.
If any of the Data Suppliers furnishing Data ceases to furnish it in a manner which is compatible with the Software or any receipt/transmission equipment software or hardware, Licensor may terminate the inclusion and delivery in the Subscription of as much Data as is affected, without advance notice, without incurring any liability to you, and without any change to any of your payment or other obligations. Further, the Software (which, among other things, determines the functionality and appearance of most, if not all, of the Subscription’s features) may be modified or replaced from time to time, in whole or in part, without any notice, and without incurring any liability to you, and without any change to any of your payment or other obligations.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR, ALL THIRD-PARTY LICENSORS, ALL TRADING AFFILIATES, ALL DATA SUPPLIERS, AND ALL OF THEIR RESPECTIVE SUPPLIERS AND AFFILIATES, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE.
6.NO LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES; TOTAL LIABILITY CAPPED.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR, ANY THIRD-PARTY LICENSORS, ANY TRADING AFFILIATES, ANY DATA SUPPLIERS, OR ANY OF THEIR RESPECTIVE SUPPLIERS AND AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS INFORMATION, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR THE DATA, OR ANY ERRORS IN THE SOFTWARE OR THE DATA, EVEN IF ANY OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) ALL SOFTWARE AND DATA PRODUCTS AND SERVICES CONTAIN SOME ERRORS AND INACCURACIES, INCLUDING THE SOFTWARE AND THE DATA. YOU UNDERSTAND THIS AND FULLY ASSUME ALL RISKS AND CONSEQUENCES RELATING TO SOFTWARE ERRORS AND DATA INACCURACIES OR INCOMPLETENESS. YOU ACKNOWLEDGE AND AGREE THAT EVEN THOUGH THE DATA SUPPLIERS, THIRD-PARTY LICENSORS AND TRADING AFFILIATES ARE GRANTED RIGHTS AND PROTECTIONS UNDER THIS AGREEMENT, NONE OF THEM ARE PARTIES TO THIS AGREEMENT AND NO RIGHTS ARE BEING CREATED IN YOUR FAVOR THAT MAY BE ENFORCED BY YOU AGAINST ANY OF THEM (INCLUDING, BUT NOT LIMITED TO, ANY EXCHANGE).
(c) IF ANY OF THE DISCLAIMERS OF LIABILITY IN THIS AGREEMENT ARE FOR ANY REASON DECLARED INVALID BY A COURT OF COMPETENT JURISDICTION, YOU AGREE THAT THE MAXIMUM COLLECTIVE LIABILITY OF LICENSOR AND ALL CONNECTED PERSONS (AS SUCH TERM IS DEFINED IN THE PARAGRAPH BELOW) TO YOU RELATING TO ANY CLAIM YOU MAY HAVE IN ANY MANNER RELATING TO YOUR LICENSE, SUBSCRIPTION, THE SOFTWARE OR DATA, OR THE USE, CONDITION, OPERATION, EFFECTIVENESS OR QUALITY THEREOF, WHETHER BASED IN CONTRACT, TORT, EQUITY OR ON OTHER GROUNDS OR THEORIES, AND REGARDLESS OF THE CIRCUMSTANCES, SHALL NOT EXCEED THE HIGHER OF (i) THE TOTAL AMOUNT OF FEES (EXCLUDING EXCHANGE FEES AND ANY OTHER “PASS-THROUGH” OR COST-REIMBURSEMENT FEES), IF ANY, ACTUALLY PAID BY YOU TO LICENSOR FOR THE SUBSCRIPTION FOR THE MOST RECENT THREE (3) MONTHS AT THE TIME THE LIABILITY ARISES, AND (ii) U.S. $300.
(d) You further expressly agree that each Trading Affiliate, each other affiliate of Licensor, each of the Data Suppliers (including each of the Exchanges), and each Third-Party Licensor (collectively, “Connected Persons”), if you assert any claim of any kind or nature against any of such Connected Persons in any manner related to this License, Subscription, the Software, the Data, or your use of any of the foregoing, are express third-party beneficiaries of the provisions of this section for the purpose of asserting against you, and each of them may assert against you, such provisions for estoppel purposes or any other affirmative or equitable defenses.
7.NO WARRANTY ON SOFTWARE OR DATA; OTHER TERMS REGARDING DATA.
(a) ALL SOFTWARE AND ALL DATA ARE PROVIDED “AS IS.” THE DATA ARE DERIVED FROM SOURCES WHICH LICENSOR AND THE DATA SUPPLIERS DEEM USUALLY RELIABLE, BUT NEITHER LICENSOR NOR THE DATA SUPPLIERS OR THEIR RESPECTIVE SUPPLIERS OR AFFILIATES GUARANTEE THE CORRECTNESS OR COMPLETENESS OF THE DATA, AND HEREBY INFORM YOU THAT INTERRUPTIONS, INACCURACIES, ERRORS AND OMISSIONS DO AND WILL FROM TIME TO TIME OCCUR. NEITHER LICENSOR NOR THE DATA SUPPLIERS OR ANY OF THEIR RESPECTIVE SUPPLIERS OR AFFILIATES SHALL HAVE ANY LIABILITY WHATEVER FOR ANY INTERRUPTIONS, INACCURACIES, ERRORS OR OMISSIONS, REGARDLESS OF CAUSE, OR ANY LOSSES YOU INCUR AS A RESULT THEREOF.
(b) The use of automated query systems to access the Data is strictly prohibited. Any use of such systems will result in immediate termination of access.
(c) You further understand and agree that your right to receive all or a portion of the Data is subject to termination to the extent that Licensor’s agreements with any of the Data Suppliers terminate for any reason, or any Data Supplier refuses or is unable, for whatever reason, to continue to supply Data to Licensor (in whole or in part). If that occurs, it may occur without notice, and in no event shall result in any liability to Licensor or any of the Data Suppliers or any of their respective affiliates, or change any of your payment obligations.
(d) To the extent applicable, you agree to make application to, and receive written approval from or execute an appropriate agreement with, each Exchange, to the extent required by the rules, regulations or policies of such Exchange, in order to receive the Data of that Exchange. You also agree to comply with any applicable conditions, restrictions and limitations, and to pay any applicable fees and charges, imposed by such Exchange. These obligations may generally apply, in whole or in part, at a minimum, to Professional Subscribers who receive Exchange financial market data. If any Exchange, for any reason, terminates provision of Data to Licensor or the Data Suppliers, your receipt of Data may be discontinued with or without notice, and you agree that in such event neither Licensor nor the Data Suppliers or their suppliers, or any other Connected Persons, shall have any liability to you.
(e) You further expressly agree that each of the Connected Persons, if you assert any claim of any kind or nature against any of such Connected Persons in any manner related to this License, Subscription, the Software, the Data, or your use of any of the foregoing, are express third-party beneficiaries of the provisions of this section for the purpose of asserting against you, and each of them may assert against you, such provisions for estoppel purposes or any other affirmative or equitable defenses.
8.USING THE SOFTWARE TO MAKE INVESTMENT AND TRADING DECISIONS OR TO INITIATE TRADES.
(a) All software, including the Software, contains errors, and all financial market and similar databases and services, including the Data, contain inaccuracies and mistakes and are incomplete in certain respects. You are strongly advised to verify pricing and all other relevant information prior to making any trade or investment.
(b) AS BETWEEN LICENSOR AND THE CONNECTED PERSONS ON THE ONE HAND, AND YOU ON THE OTHER, SOLELY YOU FULLY ASSUME THE RISK THAT ERRORS OR INACCURACIES IN THE SOFTWARE AND/OR THE DATA MAY RESULT IN YOUR REACHING CONCLUSIONS THAT YOU MIGHT NOT OR WOULD NOT HAVE REACHED HAD SUCH ERRORS AND/OR INACCURACIES NOT BEEN PRESENT. FURTHER, AS BETWEEN LICENSOR AND THE CONNECTED PERSONS ON THE ONE HAND, AND YOU ON THE OTHER, SOLELY YOU FULLY ASSUME THE RISK THAT SOFTWARE ERRORS MAY CAUSE FAILURES IN THE TRANSMISSION OF INFORMATION THROUGH THE INTERNET OR OTHER CHANNELS, OR INACCURACIES IN INFORMATION BEING SO TRANSMITTED, INCLUDING BUT NOT LIMITED TO TRANSMISSIONS OF ORDERS TO PLACE OR EXECUTE TRADES OR CONFIRM OR CANCEL TRANSACTIONS. YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER LICENSOR NOR ANY OF THE CONNECTED PERSONS OR ANY OF THEIR RESPECTIVE AFFILIATES SHALL HAVE ANY LIABILITY WHATEVER FOR ANY CONSEQUENCES OF SUCH ERRORS, INACCURACIES OR FAILURES.
(c) You further expressly agree that each of the Connected Persons, if you assert any claim of any kind or nature against any of such Connected Persons in any manner related to this License, Subscription, the Software, the Data, or your use of any of the foregoing, are express third-party beneficiaries of the provisions of this section for the purpose of asserting against you, and each of them may assert against you, such provisions for estoppel purposes or any other affirmative or equitable defenses.
You shall indemnify and hold harmless Licensor and each of its affiliates, including the Trading Affiliates, and each of their respective directors, officers, employees and affiliates, from and against any claim, damages, loss, liability, cost as incurred and/or expense (including, but not limited to, reasonable attorneys’ fees and costs, before and at any trial or other proceeding, at all tribunal levels, and whether or not any suit is instituted) that directly or indirectly arise from or are caused by or relate to: (a) any use by you of any of the Software and/or any of the Data; (b) any breach or violation by you of any term or provision of this Agreement or any other agreement you have made in connection with your license hereunder, your registration for the Subscription; (c) your assertion of a claim against Licensor, any of the Connected Persons, or any of their respective employees, agents or affiliates, that asserts that any of them are responsible or liable for any loss or damage the risk of which has been disclaimed by Licensor (on its own behalf and/or for the benefit of Connected Persons) or assumed by you under this Agreement; (d) any violation of any kind by you, or on your behalf, of the legal or contractual rights of any third party (including each of the Connected Persons and their respective affiliates), including, but not limited to, violation of any such person’s patent, copyright, trademark, service mark, trade secret or other intellectual property rights; and/or (e) any false or misleading information provided by you to Licensor, any of the Connected Persons (including the Exchanges), or to any of their respective suppliers or affiliates.
10.PRODUCT SUPPORT; OTHER PRODUCTS AND SERVICES; UPGRADES.
The Fees and any other consideration paid by you for the Subscription relate only to your receipt of the Software and Data (as included at the time of your Subscription, or a selected by you as added features, functions or services), and to no other products or services, including upgrades or technical support Licensor or an affiliate offers or may offer from time to time. All support services, including technical support and other services and benefits that may be made available from time to time by Licensor or an affiliate, and the terms and conditions upon which they are made available (including pricing), may be modified at any time and from time to time by Licensor or its affiliate with or without notice. Licensor is not required to provide error corrections or updates, and if you are or become dissatisfied with the Subscription for lack of updates or error corrections, or for other reasons, your sole remedy and recourse is to cancel the Subscription. You represent and acknowledge that you have numerous other satisfactory choices if you decide to cancel and take your business elsewhere. If Licensor does provide an upgraded build or version, you may be required to accept such upgrade and not be permitted access to any prior version or build, including the one you are using at the time of the upgrade, and upgrades may be made seamlessly (meaning automatically) made when you login and not readily apparent to you, and with or without notice to you. Licensor and its affiliates may decide, in its or their sole discretion, not to provide any technical or other support with respect to any prior version or build as soon as it has been replaced.
Each affiliate of Licensor (including each of the Trading Affiliates), is an intended third-party beneficiary of this Agreement, and may enforce all rights and obligations, and assert all defenses, in its favor contained in this Agreement, and each Trading Affiliate, in any dispute-resolution proceeding (including civil litigation, arbitration, reparations or any other alternative dispute forum) with you or anyone acting by or through you, may assert any or all of the disclaimers, assumptions of risk and other provisions of this Agreement (unless expressly prohibited by applicable laws, rules or regulations). Neither this express beneficiary designation, nor any other provision of this Agreement, creates in your favor any express or implied right or remedy, of any kind or nature, against any Trading Affiliate or other affiliate of Licensor under this Agreement or otherwise.
The performance by Licensor, any Third-Party Licensor and each of the Data Suppliers of, under or with respect to this Agreement, including delivering availability and use of the Software and the Data pursuant to your Subscription, shall be excused (without creating liability of any kind to Licensor, any Third-Party Licensor or any Data Supplier) in the event and to the extent that any software bug or virus, failure of any internet service provider, operator error, failure of any electronic or mechanical equipment, hardware, communication system or other system, or any component thereof, telephone or other interconnect problems, unauthorized access, theft, security breach, government restriction, exchange or market regulation, suspension of trading, war, terrorism, cyberterrorism, strike or other labor dispute, civil disorder, fire, tornado, wind storm, earthquake, power failure, explosion, or any other third-party failure, or any other act, event or circumstance beyond the reasonable control of Licensor or such Data Supplier (as applicable), renders such performance, in whole or in part, impossible or difficult to accomplish.
If any provision of this Agreement is held to be invalid, void or unenforceable by reason of any law, rule, administrative order or judicial decision, that determination shall not affect the validity of the remaining provisions of this Agreement.
Except as specifically permitted in this Agreement, no provision of this Agreement can be, or be deemed to be, waived, altered, modified or amended unless agreed to in writing signed by an authorized officer of Licensor. In the event of conflict or inconsistency with any other Licensor Agreement with you (including the User Agreement on Licensor’s website), this Agreement shall control.
15.ENTIRE UNDERSTANDING; ASSIGNMENT.
This Agreement contains the entire understanding between you and Licensor concerning the subject matter of this Agreement, and supersedes all prior or contemporaneous agreements or understandings, oral or written. You may not assign any of your rights or delegate any of your obligations hereunder without first obtaining the prior written consent of Licensor.
16.CHOICE OF LAW AND VENUE.
This Agreement shall be deemed to have been made in the State of New York, United States of America, and shall be construed, and the rights and liabilities of the parties determined, in accordance with the laws of the State of New York. Venue for any dispute involving or relating to your Subscription shall be proper only in New York County, New York, except if waived by Licensor in writing in its sole and absolute discretion, and except that any dispute between you and any Data Supplier and/or Exchange (which does not include Licensor) shall be proper only in the county where the principal executive office of such Data Supplier or Exchange is located. You hereby irrevocably consent to personal jurisdiction in the State of New york, and represent that New York county is not inconvenient locations or forums for you.
17.ADDITIONAL IMPORTANT INFORMATION AND DISCLAIMERS.
(a) Investment and trading involve risks, including possible loss of principal and other losses. The Software and Data are designed, provided and/or presented chiefly to provide a training tool for the understanding and analysis of the financial markets. They are licensed to you with the understanding that neither Licensor or any Third-Party Licensor, nor the Data Suppliers, are engaged in rendering any investment, trading or other professional advice. If investment, trading or other professional advice is required, the services of a competent, licensed professional should be sought. No employee, agent or representative of Licensor, any Third-Party Licensor, any Data Supplier, or any of their respective affiliates is authorized to provide any such advice of any nature whatever, and any such advice, if given, is in violation of Licensor’s (or such Third-Party Licensor’s) and such Data Suppliers’ policies, is unauthorized and may not be relied upon.
(b) The use of any trading system or strategy, including any system or strategy included as a sample in, or that is or was developed using, the Software or any of the Data, does not and cannot guarantee that you will make profits, increase profits or minimize losses. Any popular or other tools, strategies or systems included in the Software are intended merely as examples of technical ideas that can be incorporated into a personally designed trading strategy or system. None is recommended. You must use your own judgment or consult a professional for advice on such matters.
(c) Trading results based upon hypothetical or historically tested trading strategies or systems do not necessarily compare to results of actual trading. No hypothetical or historical trading record can account for the level of risk present in actual trading. Numerous factors relating to market conditions, the existence or nonexistence of specific events or circumstances, human error, human/emotional reaction to losses during actual trading, inherent limitations of certain hypothetical or historically tested models, particularly ones that do not operate at the “tick” (as opposed to open, high, low, close) level, volume of trade, and liquidity differences between hypothetical models and actual trades, and other supply/demand differences that may not be addressed by hypothetical models, and other conditions and circumstances, can account for these differences. There is no guarantee that your hypothetical trading results, even if tested against historical data, will produce comparable actual trading results. In fact, there are frequently sharp differences between hypothetical or historically tested performance results and the actual results subsequently achieved by any particular trading system or strategy. The possible reasons for this include the likelihood that no trading strategy or system can, even with automated trading, be precisely executed as designed.
(d) You should be aware that certain commonly used trading “jargon,” including trading terms, such as, for example, a “limited risk” position, should not be taken literally. For example, so-called “limited risk” positions in certain options trades are not in fact limited as may be expected. Again, with respect to matters such as these, a licensed professional should be consulted.
(e) You further expressly agree that each of the Connected Persons (for the avoidance of doubt, the independent companies and individuals described in subsection (e) above are not Connected Persons), if you assert any claim of any kind or nature against any of such Connected Persons in any manner related to this Subscription, the Software, the Data, or your use of any of the foregoing, are express third-party beneficiaries of the provisions of this section for the purpose of asserting against you, and each of them may assert against you, such provisions for estoppel purposes or any other affirmative or equitable defenses.
The Software and the Data and their descriptions contain trademarks of Licensor or its affiliates as well as registered and unregistered trademarks and service marks of the Data Suppliers or other Connected Persons, and trademarks, service marks and trade names of other companies. You have no right to use any such trademarks, service marks or trade names in any context without the express prior written consent of the owner(s) of such trademarks, service marks or tradenames.
“Apifiny” means either (i) Apifiny Asset Network Inc., a Delaware corporation, if your address is in the United States or if you are a citizen of the United States, (ii) Simple Fintech Australia PTY LTD., an Australian limited liability company if your address is in Australia or if you are a citizen of Australia, or (iii) Apifiny Asia PTE LTD, a Singapore limited liability company, or if your address is not in the United States or Australia and if you are not a citizen of the United States or Australia.