These terms and conditions are the standard terms and conditions of business (“Standard Consumer Terms”) of Ortex Technologies Limited a company registered in England and Wales under company number 11033216 and whose registered office is at The Old School House, West Street, Southwick, Fareham, England, PO17 6EA (“Supplier”). These Standard Consumer Terms govern the manner in which the Supplier provides services to any customer or Customer who is a Nonprofessional User, and is not a Professional User (“Customer”) and are the only terms and conditions upon which the Supplier trades and are incorporated into all agreements of any nature entered into between the Supplier and the Customer whether made orally or in writing.
- The Supplier has developed a web-based equity analytics platform for the financial services industry which makes data available for authorised subscribers to view via the internet by way of unique logins on agreed payment terms.
- The Customer wishes to subscribe to Supplier’s services on agreed terms which incorporate these Standard Consumer Terms.
The definitions and rules of interpretation in this clause apply to these Standard Consumer Terms:
“Agreement” means the agreement entered into between the Customer and the Supplier being the Standard Consumer Terms (and any subsequent updated version of the same notified to the Customer);
“Commencement Date” means the date the Agreement shall commence, being the date on which the Supplier accepts the Customer’s application for registration to receive the Supplier’s Services (or, if sooner, the date on which the Customer begins to use the Supplier’s Services);
- “Confidential Information” means all reports, specifications, technical information and documentation comprised in or relating to the Services and/or Software, research and trading data, marketing and sales information, lists of Customers or customers, plans, know-how and all other data that is either marked confidential or ought reasonably to be considered confidential given the nature of the material or the manner in which it is provided, in each case furnished by one of the parties to the other pursuant to or in connection with the Agreement;
- “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications and the rights to make such applications (and rights to apply for and be granted) renewals or extensions of, and any rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Nonprofessional User” means that you are a natural person, and you intend to use the Services solely in connection with your personal investment activities or the personal investment activities of your immediate family members. You will not use the Services in connection with any business, professional or commercial activities and will notify Supplier immediately if this definition is no longer met.
“Professional User” means a natural person, company or trust that is registered with and governed by any financial regulator in your country, or otherwise engaged as an investment adviser for anyone other than yourself or immediate family.
- “Service(s)” means the web-based equity analytics platform providing information to the financial services industry including all content and information contained within it, its layout and know-how, summaries, statistics, categories, metrics, algorithms, methods and systems, statistics, formulae, and third-party information available via the Website for view by the Customer;
- “Software” means the Supplier’s relevant proprietary software and any associated online software application;
“Subscription Fees” means the fees payable by the Customer to the Supplier in respect of the Supplier’s Services for each calendar month, the details of which are set out on the Website;
- “Term” means the period during which this Agreement remains in force, as set out in clause 3;
“Virus”: any device or thing (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; anything to prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or which adversely affects the users experience, including worms, trojan horses, viruses and other similar things or devices;
- “Website” means the Supplier’s website, or any successor site operated by the Supplier and notified to the Customer.
- The Agreement commences on the Commencement Date and shall continue for the initial period and shall thereafter automatically renew for any subsequent period unless either party terminates by providing a written 30 days’ notice to the other party, or by using the termination procedures available within the Service, in which case this Agreement shall terminate at the expiry of the current Term. If a trial period is offered, the Agreement can be terminated at any time during the trial period by using the termination procedures available within the Service.
- Customers may request to change the renewal period of their subscription to a longer or shorter period. If this is requested during the duration of the shorter of the two periods (e.g., within the first month if switching in either direction between a monthly and annual subscription), the subscription and fee will be adjusted as if the chosen subscription period had started at the time of the original subscription. Requests to change to a longer or shorter period after this time (e.g., if switching in either direction between a monthly and annual subscription after the first month of either the continuous monthly subscription or an annual subscription) will be actioned at the end of the current subscription period and will apply from the following period. The right to change the renewal period will not be available for any Customer found to be in breach of Section 4, 5 or 7 of this Agreement.
- Subscriptions created via the Google play store or Apple app store does not entitle the customer to access to the web based interface, but the Supplier may grant access during promotional periods.
4. USER SUBSCRIPTION RIGHTS
- The Supplier hereby grants to the Customer a non-exclusive and non-transferable right (without the right to grant sub-licences) to permit the Customer to use the Services during the Term solely for the purposes of the Customer’s personal use.
- In the event that the Supplier can demonstrate reasonable grounds for believing a Customer has elected not to subscribe for the Services and/or that an existing Customer has failed to renew its subscription to the Service caused by a redistribution to another forming a substitute for the Services then the Supplier reserves the right to require the Customer by notice not to make any redistribution of the Services and to account to the Supplier in respect of losses caused to the Supplier by the conduct of the Customer.
- The Customer must not distribute the Services or any excerpts or any derivatives thereof to any other person or to any third parties.
- The Customer must only use the Services for the Customer’s own internal business operations. The rights granted to the Customer under the terms of this Agreement are for the benefit of the Customer only for use in the course of its own internal business and are not granted to any other connected or unconnected third party.
- The Customer warrants that they are over eighteen (18) years of age.
- The Customer shall not attempt to upload, store, distribute or transmit any material during the course of its use of the Service that comprises a Virus or other malicious code, or that is unlawful, harmful, threatening, defamatory, obscene, infringing, facilitates illegal activity, relates to the unlawful use of financial data or causes damage or injury to any person or property. The Supplier reserves the right to disable the Customer’s access to the Services at any time in such case without notice, liability or compensation to the Customer.
- The Customer warrants that it shall only use the Services for lawful purposes and shall not use the Services in a manner that breaches any applicable laws or regulations in any jurisdiction. The Customer shall indemnify the Supplier against all losses, liabilities, damages, costs (including expenses and legal costs) arising as a result of a breach of this war
- The Customer shall not except as may be allowed by any applicable law which is incapable of exclusion or by express agreement between the parties or attempt to:
- copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the information provided by the Supplier in the course of supplying the Services in any form or media or by any means;
- nor may the Customer attempt to de-compile, reverse compile, disassemble reverse engineer or otherwise reduce to human perceivable form all or any part of the information obtained through the supply by the Supplier of the Services;
- access all or any part of the Services in order to build a product or service which competes with the Services;
- use the Service to provide services to third parties in a manner that constitutes a functional substitute for such third party subscribing to the Services;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party;
- obtain, or assist third parties in obtaining any form of access to the Services;
- use the Services to compile a separate database or store of information that is capable of being accessed independently without maintaining a subscription to the Supplier for the Services.
- The Customer shall at all times use all of its reasonable endeavours to prevent any unauthorised access to, or use of, the Services and in the event that the Customer becomes aware of any such unauthorised access or use to promptly and at the earliest opportunity notify the Supplier.
- In the event that the Customer exceeds acceptable limits in terms of the number or speed of requests, the number of simultaneous requests from more than one device, or any other factor which has a significant effect on the Supplier’s systems, the Supplier may ask the Customer to moderate their behaviour, and in extreme cases, the Supplier may limit the rate at which the Customer can access systems, block the Customer’s access or terminate the Customer’s account.
- The Customer accepts that some of the data on Supplier’s platform are the results of estimates or the Supplier’s own evaluation based on its own internal algorithms. Estimated data is always labelled as such and by its nature, estimations are based on incomplete data. Estimates may be shown to be inaccurate when full data is finally made available, but this is to be expected from time-to-time, particularly if market activity is unusual and could not have been predicted at the time of the estimation.
- The Customer accepts that the Supplier may, from time to time and at its discretion, choose to share limited and anonymized data publicly on social media, or elsewhere, for promotional purposes.
6. SUPPLIER’S OBLIGATIONS
- The Supplier shall provide the Services to the Customer in accordance with the terms of this Agreement and shall use its commercially reasonable endeavours to make the Services available on the Website at all times with the exception of planned and unscheduled maintenance.
- The Supplier does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the Services will meet the Customer’s requirements. Further the Supplier will not be responsible for any delays, delivery failure or any other loss or damage resulting from the transfer of data and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- In providing the Services the Supplier shall use such expertise, skill, care and diligence that would ordinarily be expected of a provider of services similar to the Services. For the avoidance of doubt the Services are provided for information only and for use by the Customer in the course of its business and do not and are not intended to provide financial advice or recommendations to the Customer which must use its own skill and know-how in its use and interpretation of the information provided by the Services.
- This Agreement shall not prevent the Supplier from entering into similar agreements with third parties or from independently developing, using, selling or licensing documentation, products, and/or services which are similar to those provided to the Customer.
- The Supplier will maintain all required licenses and consents necessary for the performance of its obligations under the terms of this Agreement.
- The Customer shall provide the Supplier with all necessary information and co-operation in relation to providing the Services and fulfilling the terms of this Agreement including access to such information as may be required by the Supplier in order to render the Services.
- The Customer shall comply with all applicable laws and regulations relevant in any jurisdiction in which it operates and with respect to all of its activities and actions in respect of this Agreement.
- The Customer shall ensure that its systems and networks comply fully with the relevant specifications that may be required from time to time by the Supplier to facilitate its internet connection to the Supplier’s Website for the provision of the Services.
- The Customer shall be solely responsible for establishing and maintaining its network connections and in respect of all connectivity, problems, conditions, delays, delivery failures and all other losses or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet or the Customer’s connection to the Supplier’s Website.
8. Data protection
- The Supplier shall, in providing the Services, comply with its Website Privacy and Security Policy as the same may be amended from time to time relating to the privacy and security of any data relating to the Customer.
- The Supplier shall ensure that it has in place appropriate organisational measures to protect against unauthorised or unlawful processing of any personal data of the other and against accidental loss or destruction of, or damage to such data that might result from unauthorised or unlawful processing or accidental loss, destruction or
9. CHARGES AND PAYMENTS
- Supplier offers Services on both a free and paid-for basis. Free services are limited in scope and may be withdrawn, or Customer’s access may be terminated, without notice.
- When the Customer registers on the Website to receive the Supplier’s paid for Services, the Customer shall provide to the Supplier details of the Customer’s chosen payment method (but only those payment methods stated on the Website to be supported) so as to allow the Supplier to charge the Subscription Fees.
- The Customer agrees to the Supplier debiting the Customer’s chosen payment method for the Subscription Fee on a monthly or annual basis, as selected by the customer upon sign-up, in advance, with the first payment being taken on or close to the Commencement Date and each subsequent payment during the Term being taken on or about the anniversary of the Commencement Date. All charges will be subject to the applicate rate of value added tax (VAT) or other applicable tax.
- If the Customer fails to pay the Subscription Fees when due (for example, due to expiration of the payment method or insufficient funds) the Supplier may charge interest to the Customer on the overdue amount at the rate of 3% a year above the then current base lending rate of Lloyds Bank plc. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Supplier may also without any liability to the Customer disable the Customer’s Account, password and access to the Services until all outstanding sums are fully paid.
- Supplier may, from time-to-time, offer discounts via voucher or otherwise. Unless otherwise stated, discounts will only apply to a single subscription period and in any case for not more than one calendar year. Discounts offered, but not accepted, may be withdrawn at any time at the discretion of supplier. Discounts will not be valid for any Customer found to be in breach of Section 4, 5 or 7 of this Agreement.
- All subscription purchases are final and not eligible for refund, full or partial, once paid.
- An exception to 6 is available in the event automatic renewal of an annual subscription for the second or subsequent year, where the right to cancellation of the most recent annual subscription with a full refund is granted for one week from the date and time of payment.
- Nothing in the Agreement shall limit or exclude either party’s liability to the other for fraud, fraudulent misrepresentation, or for death or personal injury caused by the negligence of such party or by that of its employees or agents.
- Neither party shall have any liability to the other for any consequential or indirect loss or damage whatsoever whether or not they were aware of the same and without limiting the generality of the foregoing for any financial loss, loss of profit, business opportunity or loss of data.
- The parties agree that the total aggregate liability to the other howsoever arising in connection with the Agreement shall be limited to 50% of the Subscription Fees paid by the Customer to the Supplier during the 12-month period prior to the cause of action arising.
- The Services are provided by the Supplier on an information only basis for its own dissemination and use and is not intended in any way to constitute advice and the Supplier makes no representation or warranty whatsoever that the Services are complete, accurate or error-free, and expressly disclaims any implied and/or statutory warranties that are not expressly set out in this Agreement including as to merchantability and fitness for purpose. Further, the Customer acknowledges that in entering into the Agreement it has not relied upon any representation, warranty or other term that has not been expressly set out in the Agreement.
- The Customer acknowledges and agrees that the Services and all data available for view on the Website and provided by the Supplier at any time in the course of the provision of the Services is for informational purposes only and does not in any way constitute advice and does not either implicitly or explicitly recommend or suggest any investment strategy or provide any opinion, insight or analysis that it intended to inform an investment strategy to the Customer. Nothing on the Website shall be considered to be a solicitation or offer to buy or sell any security or other financial instrument.
- The Customer accepts sole responsibility for its selection of the Services as a data source and hereby agrees and acknowledges that the Services are provided for information purposes only and are not intended to constitute financial advice, investment advice or personal recommendation of any type in relation to any investment or other financial undertaking nor any other form of advice nor are the Services intended to be a substitute for the Customer’s own skill, judgement or management in making its own investment decisions or otherwise in operating its business.
- The Customer acknowledges that any investment decisions the Customer makes shall be deemed to be at the Customer’s sole risk and the Supplier shall not have any liability to Customer or any third party for losses resulting from and of the Customer’s financial, investment or business decisions.
- Neither party shall have any liability to the other for delay or failure to carry out an obligation under the agreement in consequence of force majeure. For the purposes of this clause force majeure refers to an event or circumstance such as acts of war, riot, acts of God and similar events beyond the reasonable control of the parties and not contemplated by it at the Commencement Date of the Agreement. Without limiting the generality of the foregoing, the Supplier is not responsible for any delays, failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet and its Website and the Customer acknowledges that the Services may be subject to limitations, interruptions, delays or other problems inherent in the use of such communications facilities.
11. Default by customer
- If the Supplier determines, in its sole discretion, that i) the Customer is not in compliance with any of the conditions, terms of provisions of this Agreement; ii) any of the Customer’s representations or warranties in this Agreement are untrue; or iii) a petition or other proceeding in bankruptcy, insolvency, or for the appointment of a received is filed by or against the Customer, then the Supplier shall have the immediate right, in its sole discretion, to take one or more of the following actions: x) to terminate this Agreement without notice; or y) to pursue such other remedies as it may be entitled to by virtue of or under this Agreement, or at law or in equity.
12. THIRD PARTIES
- The Customer acknowledges that the Services will contain content from third parties and the Customer understands that although the Supplier will use its reasonable endeavours to monitor what appears on the Website the Supplier gives no warranty as to its accuracy, timeliness, sequence or completeness of information or that the third-party has adhered to these Standard Consumer Terms. In the event that the Customer is aware of any inaccuracies in the content of the Website or any breach of these Standard Consumer Terms or any other breach of third-party rights then the Customer shall forthwith notify the Supplier and the Supplier will use its reasonable endeavours to rectify the content of the Website.
- The Supplier uses data from exchanges and third-party providers in the provision of the Services and in doing so warrants to the Customer that the Supplier has all necessary consents in place to permit the Supplier the use of such data in the provision of the Services
- Each party shall hold the other party’s Confidential Information in confidence and shall not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Further, each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violations of the terms of this Agreement.
- A party may disclose Confidential Information to the extent that it is required to be disclosed by law or by any government or regulatory authority or by a court of competent jurisdiction subject to notifying the other party to the extent that it is permitted to do so or if it is already in the public domain other than by a breach of the terms of this Agreement.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- The Customer shall defend, indemnify and hold harmless the Supplier against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services provided that the Customer is given reasonable notice of such claim, the Supplier provides reasonable cooperation to the Customer in respect of defending or settling such claim and the Customer is given authority to defend and settle the claim.
15. INTELLECTUAL PROPERTY RIGHTS
- The Customer acknowledges and agrees that the Supplier and/or the Supplier’s licensors own all Intellectual Property Rights in the Services and in all documentation, Software and content of the Website and all derivatives thereof and creations therein in any format and that the Intellectual Property rights vest solely and absolutely in the in the Supplier or its licensors.
- This Agreement does not grant the Customer any rights to, under or in, any patent, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licences in respect of the Services or the Software or the Website. For the avoidance of doubt ORTEX and the ORTEX logo are trademarks registered to the Supplier.
- The Customer acknowledges that the design and presentation of the Services, the Website, the Software and all associated data content, icons, reports, graphs, tables, information, graphics, and applications and all other elements of the Services and the Software whether or not visible on the Website are protected by the Supplier’s Intellectual Property Rights and must not be duplicated, copied or otherwise replicated in whole or part.
- The Customer shall not to infringe the Supplier’s Intellectual Property Rights in any way whether intentionally or unintentionally.
- The Agreement may be terminated by the Customer by using the termination procedures available within the Service, after such termination the Customer will retain access to the Service for the duration of the current period.
- The Agreement may be terminated by either party giving to the other at least 1 months notice in writing of their wish to terminate the Agreement ending on the last day of the initial period of the Agreement or at the end of any subsequent automatic renewal period.
- This Agreement may be terminated by either party with immediate effect by giving written notice to the other if:
- the other commits a material breach of any term of this Agreement which cannot be rectified, or which could be rectified but after 30 calendar days written notice of the breach has not been rectified.
- the other party suspends payment of its debts or is deemed unable to do so pursuant to the provisions of the Insolvency Act 1986 or any re-enactment of the same, enters into compromise arrangements with its creditors (other than for a solvent reorganisation), is adjudicated bankrupt or insolvent, has an administrator or administrative receiver appointed or where a winding up petition is filed, or notice is given, or a resolution passed in respect of the same.
16.4 This Agreement may be terminated with immediate effect by the Supplier if the Customer fails to pay the Subscription Fees on the due date for payment and remains in default for 30 calendar days after being notified in writing to make the payment.
17. POST TERMINATION
- Upon termination of this Agreement for any reason all permissions consents and licences granted under the terms of this Agreement shall immediately terminate and the Customer shall immediately cease to use the Services and the Customer’s access to the Services will be disabled.
- Upon termination of this Agreement for any reason the parties shall make no further use of any data relating to the other party (if any).
- Upon termination or non-renewal for any reason the Supplier may destroy or otherwise dispose of any of the Customer’s data in its possession (if any) unless notified by the Customer prior to termination of the Agreement that it requires any Customer data to be returned.
- All rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination which existed at or before the date of termination of the Agreement shall not be affected or prejudiced.
18. ENTIRE AGREMENT
This Agreement constitutes the entire agreement between the Customer and the Supplier with respect to the subject matter hereof, and supersedes all prior negotiations, communications, understandings and agreements with respect thereto.
If any provision or part of this Agreement is invalid, illegal or unenforceable then this Agreement shall be deemed to be modified to the minimum extent possible to make it legal, valid and enforceable. Any modification to or deletion of a provision or part of this Agreement shall not affect the validity and enforceability of the rest of this agreement.
No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of the parties by their authorised representatives.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
The terms of this Agreement and the permissions granted under its terms are specific to the parties to this Agreement and neither party may assign any of the rights authorised, granted and/or licensed under the terms of this Agreement without the prior written consent of the other party.
23. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties or authorise either party to act as an agent for the other and neither party shall have authority to act in the name of or on behalf of the other in any way.
24. THIRD PARTY RIGHTS
A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
Any notice given under the terms of this Agreement shall be in writing and either delivered by hand or sent by pre-paid first-class post or registered post to the other’s registered office or email to the other’s email address as notified to the other party for this purpose. Notices for termination of the Service can be sent by the Customer by using the termination procedures available within the Service.
The provisions of Sections 8, 10, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24 and 28 shall survive the completion of performance or any termination of this Agreement.
27. Change of Agreement Terms by the supplier
The Supplier reserves the right to change the terms of this Agreement, including the associated Subscription Fees, by giving 30 days’ notice unless the change is due to compliance in law.
28. GOVERNING LAW AND JURISDICTION
- This Agreement is governed by English law. This means that the Customer’s access to and use of the Website will be governed by English law.
- Each party to this agreement irrevocably agrees that the courts of England shall have exclusive jurisdiction to hear, settle and/or determine any dispute, controversy or claim (including any non-contractual dispute, controversy or claim) arising out of or in connection with this agreement, including any question regarding its existence, validity, formation or termination. For these purposes, each party irrevocably submits to the jurisdiction of the English courts.