Terms of Use by OpenTrade

Terms of Use

These Terms of Use are effective on February 12, 2021.

These Terms of Use ("Terms") govern your access to and use of the services provided by OpenTrade, Inc, a Washington corporation ("OpenTrade", "we", "us", or "our"), including (a) our website, mobile applications and other online services, and our other services that reference these Terms (collectively, the "Services"), and (b) any website, mobile applications, online portal or other online services developed by us for any of our clients, including our user editing permissions and management system and any edits performed on such client services or information, materials or data uploaded to such client services (collectively, the "Client Services"). Your access to and use of the Services and/or Client Services, as applicable, are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.

We may revise these Terms from time to time without direct notice to you, and the most current version of these Terms will be available at www.opentradeinc.com/tou.  By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

If you are a client of the Company for which we have developed a website, mobile application, online portal or other online services, this Privacy Policy and the Terms of Use shall, to the extent applicable, govern your use of such Client Services (and the use of customers, distributors, suppliers or any other third party you authorize to access such Client Services). However, we encourage you to implement your own privacy policy, terms of use and any other applicable policies or agreements to govern the relationship between you and each such customer, distributor, supplier or other third party you authorize to use such Client Services. Should any conflict arise between any such privacy policy, terms of use or other applicable policy or agreement, this Privacy Policy and the Terms of Use shall govern with respect to any Services and/or Client Services accessed, edited or otherwise used through our Services.

In accessing any Client Services, you may be subject to, and may be required to agree to be bound by, privacy policies, terms of use and any other policies and agreements that may be applicable to such Client Services or otherwise required by the applicable Company client.

 

1. General

You are responsible for your use of the Services and any Client Services, and for any consequences thereof. You acknowledge and agree that by consenting to these Terms and using the Services, OpenTrade may access certain information on your mobile electronic device. You may use the Services or Client Services, as applicable, only in compliance with these Terms and all applicable laws, rules and regulations.

 

2. Privacy

By accessing or using the Services or Client Services, you intend to and expressly agree to be bound by all the terms and conditions of this Agreement and OpenTrade's Privacy Policy (available at www.opentradeinc.com/privacy) (the "Privacy Policy"), which is incorporated herein by reference. If you do not agree to these terms and conditions, you may not use the Services or any Client Services. Any information that you provide to OpenTrade is subject to the Privacy Policy, which governs our collection and use of your information.  You understand that through your use of the Services or Client Services, you consent to the collection and use of your information as set forth in the Privacy Policy.

 

3. Eligibility

You may provide access to the Services and, if you are a client of OpenTrade, to any Client Services OpenTrade develops for you in such capacity (such Client Services, "your Client Services") to individual users (each, an "Authorized User"). You are solely responsible for Authorized User activities and interaction with the Services or your Client Services. You agree to ensure all Authorized Users are aware of any and all restrictions of use in these Terms, the Privacy Policy, and any other rules or requirements applicable to the Services or Client Services. You agree to cause Authorized Users to comply with such provisions. You are solely responsible for all actions taken by and interactions with Authorized Users, including providing any disclosures governing an Authorized User's interaction with the Services or Client Services, and any applicable Privacy Policy or further obligations required by OpenTrade or any applicable law. Any obligation imposed on you by these Terms shall be applicable to you and to any Authorized User.

By using our Services or any Client Services, you represent and warrant that you and each Authorized User:

  1. If an individual, are at least 18 years old;
  2. Are legally qualified to enter a binding contract with OpenTrade;
  3. Are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country;
  4. Are not on any list of individuals prohibited from conducting business with the United States;
  5. Are not prohibited by law from using our Services or any Client Services, as applicable;
  6. Do not have more than one account on our Services; and
  7. Have not previously been removed from our Services by us, unless you have our express written permission to create a new account.

If at any time you cease to meet these requirements, we reserve the right to delete your account with OpenTrade, to revoke any and all Credentials held by you and any of your Authorized Users and to delete any Client Services developed on your behalf.

 

4. Your Responsibilities

Liability: You acknowledge that you are solely responsible and liable for all any and use of the Services or Client Services by you or any Authorized User, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by you, will be deemed a breach of these Terms by you. You are further solely responsible for compliance with all applicable laws relating to your or any Authorized User's use of the Services or Client Services.

Editing of Client Services: Certain Client Services you may have access to may allow you to edit or modify content on Client Services (any such edit or modification, a "User Modification"). You have sole responsibility for all User Modifications, and all information, materials and data uploaded to Client Services by you or any of your Authorized Users. We are not responsible and make no representation or warranty concerning any Client Services subject to a User Modification in any way after the completion of our development of such Client Services by any third party. OpenTrade (and the applicable OpenTrade client) reserve the right to impose restrictions on User Modification permissions. You shall be solely responsible for all User Modifications by you and the consequences of OpenTrade's hosting, display, distribution, or publishing of such User Modifications. In connection with any User Modifications by you or any of your Authorized Users edit, you affirm, represent, and warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize OpenTrade to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all information, materials or data to enable inclusion and use of such information, materials or data in the manner contemplated by these Terms; and (ii) you have the written consent, release, or permission to use the name, image, or likeness of each individual identified in such User Modifications. IN CONNECTION WITH ANY USER MODIFCATIONS BY YOU, YOU FURTHER AGREE THAT YOU WILL NOT USE MATERIAL THAT IS COPYRIGHTED, PROTECTED BY TRADE SECRET, OR OTHERWISE SUBJECT TO THIRD-PARTY PROPRIETARY RIGHTS, INCLUDING PRIVACY AND PUBLICITY RIGHTS, UNLESS YOU ARE THE OWNER OF SUCH RIGHTS OR HAVE PERMISSION FROM THEIR RIGHTFUL OWNER TO POST THE MATERIAL AND TO GRANT OPENTRADE THE NECESSARILY RIGHTS GRANTED IN THIS SECTION. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS OPENTRADE FOR ANY AND ALL DAMAGE OR LIABILITY OPENTRADE INCURS AS A RESULT OF YOUR VIOLATION OF THIS PARAGRAPH.

Acceptable Use: You agree not to misuse the Services or Client Services or help anyone else to do so. For example, you must not try to do any of the following in connection with the Services or Client Services:

  1. probe, scan, or test the vulnerability of any system or network;
  2. breach or otherwise circumvent any security or authentication measures;
  3. access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you have not been invited to;
  4. interfere with or disrupt any other user of the Services or Client Services, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services or Client Services;
  5. access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, "scraping" or creating accounts in bulk);
  6. send unsolicited communications, promotions or advertisements, or spam;
  7. send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
  8. promote or advertise products or services other than your own without appropriate authorization;
  9. abuse referrals or promotions to get more storage space than deserved or to sell storage space received from referrals or promotions;
  10. circumvent storage space limits;
  11. sell the Services or Client Services unless specifically authorized to do so;
  12. publish or share materials that are unlawfully pornographic or indecent, or that contain extreme acts of violence or terrorist activity, including terrorist propaganda;
  13. advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual orientation, disability, or impairment;
  14. harass or abuse OpenTrade personnel or representatives or agents performing services on behalf of OpenTrade;
  15. violate the law in any way, including storing, publishing or sharing material that's fraudulent, defamatory, or misleading; or
  16. violate the privacy or infringe the rights of others.

 

Equipment: You shall be responsible for providing, maintaining and ensuring that you and your Authorized Users are able to access and use the Services or Client Services, including compatible hardware, software, internet access, security software, backup devices or services, and any other requirements. OpenTrade shall have no responsibility to provide any additional software or hardware. You, on your own behalf and on behalf of your Authorized Users, agree that OpenTrade shall have no responsibility for any data loss or other damage or loss suffered in connection with your use of the Services, including any failure to provide adequate security or backup devices or services.

Correct Information: You are responsible for ensuring OpenTrade has accurate and current information for your account, including current contact and payment information. You are further responsible for regularly reviewing the associated email account for, and, if requested, responding to, any communications from OpenTrade.

Account Security: If you are provided with a username, password, credentials file, or any other piece of information as part of any security procedure ("Credentials"), you must treat such information as confidential. You must not disclose Credentials to any other person or entity. You acknowledge that your account and Credentials are personal to you, and further agree not to provide any other person with access to the Services or portions of it using your Credentials. You agree to notify OpenTrade immediately of any unauthorized access to or use of your Credentials or any other breach of security. OpenTrade has the right to disable any Credentials or other identifier at any time, whether set up by you or any Authorized User, or provided by OpenTrade.

Compliance with Laws: You agree to use the Services or any Client Services only for lawful purposes, and to conduct your business in accordance with all applicable laws and regulations.

Third-Party Service Providers: OpenTrade may from time to time and in its sole discretion engage other service providers to assist in the performance of the Services, such as web hosting providers, payment processors, and other third parties. You agree to abide by the terms of use and other requirements associated with the services provided by such third parties in connection with the Services or Client Services.

Beta Services: You may choose to use Services or features identified as alpha, beta, preview, early access, or evaluation, or words or phrases with similar meanings ("Beta Services") in your sole discretion. If you choose to use any Beta Services, you acknowledge and agree that: (a) Beta Services may not be supported and may be changed at any time without notice; (b) Beta Services may not be as reliable or available as the Services; (c) Beta Services have not been subjected to the same security measures and auditing to which the Services have been subjected; and (d) OPENTRADE WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES – USE AT YOUR OWN RISK. In exchange for using Beta Services, you acknowledge and agree that OpenTrade may contact you or your Authorized Users to obtain Feedback regarding Beta Services. Beta Services are confidential until officially launched by OpenTrade. You agree to take reasonable measures to keep information regarding the Beta Services confidential, including at least those measures you take to protect your own confidential information of a similar nature. You agree not to disclose information regarding Beta Services to any third parties, and will keep new features and functionality confidential until officially launched by OpenTrade. You may disclose information regarding Beta Services to the extent required by law or regulation if you give OpenTrade reasonable advance written notice, to the extent permitted, so OpenTrade can seek to prevent or limit the disclosure.

 

5. Your License to Use the Services

OpenTrade grants you a limited license to access the Services subject to the terms and conditions set forth in these Terms. You acknowledge and agree that OpenTrade may modify, update, and otherwise change the Services at any time in its sole discretion.

Except for the limited license to access the Services identified in the preceding paragraph, you acknowledge that nothing contained in these Terms shall be construed as granting or conferring, by implication, estoppel or otherwise, any right, title, or interest to any intellectual property, including any (i) inventions (whether patentable or not in any country), patents, patent applications, invention disclosures, improvements, trade secrets, proprietary information, know how, information, or technical data; (ii) copyright protected works, copyright registrations, mask works, mask work registrations or applications in the United States or any foreign country; (iii) trademarks, trademark registrations, service marks, logos or applications therefor in the United States or any foreign country; (iv) trade secrets; or (v) any other tangible or intangible proprietary rights anywhere in the world.

OpenTrade grants you a limited license to access any Client Services to which you have been granted access by the applicable OpenTrade client, subject to the terms and conditions set forth in these Terms and any terms of use or other applicable policies or agreements imposed by such client, and the representations, terms and conditions set forth in this Section 5 shall apply to such license.

 

6. Intellectual Property Rights; Feedback

Trademarks: Certain trademarks, service marks, and logos, including without exclusion the OpenTrade trademark and associated logo (the "Trademarks") used and displayed in connection with the Services are owned by OpenTrade. The Services may also contain or refer to third-party trademarks, trade names, product names, and logos that may be registered trademarks of their respective owners. Under no circumstances may you use or copy any of the Trademarks. Nothing herein should be construed as granting any license or right to use any Trademarks displayed in connection with the Services or Client Services without OpenTrade's express written permission.

Copy any of the Trademarks: Nothing herein should be construed as granting any license or right to use any Trademarks displayed in connection with the Services or Client Services without OpenTrade's express written permission.

Copyrighted Works: All content provided by OpenTrade in association with the Services, Client Services and these Terms, including, but not limited to, computer software, images/video, electronic art, graphics, sounds/audio, data, communications programs, and user interfaces, executable code, computer code, and data formatted, organized, and collected in a variety of forms, including layouts, pages, screens, and databases and any and all other copyright-protected work associated with the Services ("Copyrighted Works") are exclusively owned or licensed by OpenTrade and are protected by U.S. and international copyright laws. You agree not to directly or indirectly copy, reproduce, modify, create derivative works from, distribute, or publicly display the Copyrighted Works without the prior express written permission of OpenTrade.

Feedback: If you or any of your employees or Authorized Users sends or transmits any communications or materials to OpenTrade by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), OpenTrade is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. OpenTrade is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although OpenTrade is not required to use any Feedback.

Ownership of Certain Data: In accordance with its Privacy Policy, OpenTrade shall have the right to collect, own, store, track and use any data created or generated by a User on the Services or Client Services that relates to: (1) behavioral or usage data or similar information, including any click streams or patterns or any other metrics for tracking user activity on the Services or Client Services; or (2) any documentation, communication or information relating to customer purchase orders, invoices or transactions placed on the Services or Client Services. In the event such data in (1) or (2) cannot be granted or owned by OpenTrade, you hereby agree to provide to OpenTrade, or otherwise secure for OpenTrade from the appropriate third party, a royalty-free, transferable, perpetual, irrevocable, non-exclusive, fully sublicensable worldwide license to use, reproduce, store and track all such data.

DMCA Copyright Notice: OpenTrade respects the intellectual property rights of others and it is OpenTrade's policy to expeditiously process and review and notices of claimed infringement of copyright or other applicable intellectual property laws. Any notices of claimed infringement should be sent to OpenTrade at info@opentradeinc.com, and must contain all of the following: (i) a signature (physical or electronic) of the copyright owner or a person authorized to act on behalf of the copyright owner; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the material that you claim is infringing and is to be removed or have access to same disabled, and information sufficient to permit our administrators to locate the material; (iv) information sufficient for us to contact you, such as address, telephone number and e-mail address; (v) a statement that you have 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 you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed. If you believe any content or materials posted or uploaded by you were improperly removed or disabled, you may submit a notice to info@opentradeinc.com with all of the following: (A) your signature (physical or electronic); (B) a description of the work at issue; (C) 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 (D) your name, address and telephone number, and a statement that you consent to jurisdiction of the Federal District Court for the judicial district in which the address is located, and that you will accept service of process from the person who provided notification of the alleged infringement.

 

7. License Grant to Your User Modifications

By making any User Modification, you expressly grant, and you represent and warrant that you have a right to grant, to OpenTrade, the applicable OpenTrade Client and any of our or their third-party partners, as applicable, a royalty-free, transferable, perpetual, irrevocable, non-exclusive, fully sublicensable worldwide license to use, reproduce and store all information, materials or data used in such edits or modifications, in whole or in part, and in any form, format, media or technology, whether now known or hereafter developed. You agree that this license includes the right for OpenTrade to provide, promote, and improve the Services or Client Services, subject to these Terms. You understand, acknowledge, and agree that all rights in this paragraph are granted by you without the need for any additional compensation of any sort to you (cash or otherwise).

You agree that OpenTrade may monitor your activities in your use of the Services and Client Services and in your account. Registration data and other information about you are subject to OpenTrade's Privacy Policy. Your information may be stored and processed in any country worldwide. You consent to the transfer of your information outside the State of Washington, the United States and/or your country.

 

8. Restrictions on Use of the Services

We reserve the right to immediately suspend or terminate your access to the Services for any reason or no reason. We also reserve the right to access, read, preserve, and disclose any information you provide through the Services as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, (v) protect the rights, property or safety of OpenTrade, users of the Services or Client Services, and the public, or (vi) protect our legitimate business interests.

You shall not use the Services or any Client Services for any purposes beyond the scope of the access granted in these Terms. You shall not at any time, directly or indirectly, and shall not permit any third party to: (i) copy, modify, or create derivative works of the Services or any Client Services, in whole or in part; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or any Client Services, in whole or in part; or (iii) use the Services or any Client Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that otherwise violates any law, regulation, or other legal requirement.

 

9. Your Interactions with OpenTrade Clients or Other Users of the Services or Client Services.

YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OPENTRADE CLIENTS AND OTHER USERS OF OUR SERVICES OR CLIENT SERVICES, AND YOU AGREE TO TAKE ALL REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT OPENTRADE DOES NOT CONDUCT SCREENINGS OF ITS USERS OF ANY KIND. OPENTRADE ALSO DOES NOT CONDUCT ANY DILIGENCE ON ITS CLIENTS OR CONDUCT CRIMINAL OR OTHER BACKGROUND OR IDENTITY VERIFICATION CHECKS ON ITS USERS. OPENTRADE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR INTERESTS, AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY INJURY OR DAMAGES POTENTIALLY INCURRED BY ITS USERS. OPENTRADE RESERVES THE RIGHT TO CONDUCT ANY SCREENINGS OF ITS USERS AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.

 

10. No Endorsement, Sponsorship, or Guarantee of Users or Third Parties.

OPENTRADE DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY USER MODIFICATIONS MADE IN ANY CLIENT SERVICES, OR (II) ADOPT, ENDORSE, NECESSARILY AGREE WITH, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY USER MODIFICATIONS. IF YOU ARE ACCESSING CLIENT SERVICES SUBJECT TO USER MODIFICATIONS, YOU ACKNOWLEDGE AND AGREE THAT SUCH CLIENT SERVICES ARE BEING PROVIDED TO YOU BY SUCH OTHER USER(S) AND NOT BY OPENTRADE. YOU AGREE TO MAKE YOUR OWN INDEPENDENT ASSESSMENT OF ANY SUCH CLIENT SERVICES AND SEEK YOUR OWN PROFESSIONAL ADVICE REGARDING SUCH CLIENT SERVICES AND ANY ACTION TAKEN ON THE BASIS OF SUCH CLIENT SERVICES. UNDER NO CIRCUMSTANCES WILL OPENTRADE OR ITS AFFILIATES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON CLIENT SERVICES OR USER MODIFICATIONS, OR TRANSMITTED TO OR BY ANY USERS.

 

11. Termination

You may terminate your account at any time via the account procedures set forth on Services or by written notice to info@opentradeinc.com.

OpenTrade may suspend or terminate your account or cease providing you with all or part of the Services (or, upon reasonable consultation with the applicable OpenTrade Client, any Client Services developed for such OpenTrade Client) at any time for any reason and without notice, including, but not limited to, if we believe: (i) you have violated these Terms; (ii) you create security or other risk or possible legal exposure for us; (iii) our provision of the Services or Client Services to you is no longer commercially viable; or (iv) prolonged inactivity on your account. We will make reasonable efforts to notify you by the email or through your account of such termination. We are not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.

Upon such termination or suspension, excepted as provided in these Terms, you will not be entitled to any refund of any Service Fees or unused fees in connection with your account.

After your account is terminated, these Terms will terminate except any rights or obligations that, by its nature, should survive account termination shall survive, including: Section 6 (Intellectual Property Rights; Feedback), Section 9 (Your Interactions with OpenTrade Clients or Other Users of the Services or Client Services), Section 10 (No Endorsement, Sponsorship or Guarantee of Users or Third Parties), Section 11 (Termination), Section 12 (Disclaimers, Limitations of Liability, and Indemnity), Section 16 (Arbitration and Governing Law) and Section 17 (Miscellaneous) shall survive such termination.

 

12. Disclaimers, Limitations of Liability, and Indemnity

OpenTrade tries to keep the Services and Client Services accessible, accurate error-free, and safe, but cannot guarantee that the Services and Client Services will be secure or that access to or use of the Services and Client Services will be uninterrupted or free of errors or omissions. OpenTrade also cannot guarantee that any catalog or inventory management system provided will be accurate and up-to-date. OpenTrade does not warrant that the Services and Client Services will operate error-free, or that the Services, Client Services and OpenTrade's servers are free of computer viruses or other harmful components. OpenTrade uses reasonable care and skill in providing the Services and Client Services, but beyond that, the Services and Client Services are provided without any warranties of any kind. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Services for any reconstruction of any lost data. OPENTRADE AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SERVICES AND CLIENT SERVICES "AS IS WITH ALL FAULTS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, AND OPENTRADE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES AND CLIENT SERVICES WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY AND NON-INFRINGEMENT. OPENTRADE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES OR CLIENT SERVICES, THE AVAILABILITY OF THE SERVICES OR CLIENT SERVICES, THAT THE FUNCTIONS CONTAINED IN THE SERVICES OR CLIENT SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE SERVICES AND CLIENT SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE SERVICES AND CLIENT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SERVICES AND CLIENT SERVICES WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE SERVICES AND CLIENT SERVICES WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OPENTRADE OR ANY OPENTRADE CLIENT OR ANY OF THEIR RESPECTIVE REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLES TATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY.

You acknowledge and agree that at times the Services and Client Services may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which OpenTrade may undertake from time to time without notice to you; or (iii) causes which are beyond the control of OpenTrade or which are not reasonably foreseeable.

TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF OPENTRADE AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS, FOR ANY CLAIMS UNDER THESE TERMS, IS LIMITED TO THE GREATER OF: (1) THE AGGREGATE AMOUNT YOU PAID US TO USE THE SERVICES IN THE PAST 12-MONTHS; OR (2) U.S. ONE HUNDRED DOLLARS ($100.00).

IN NO EVENT WILL OPENTRADE, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES OR ANY CLIENT SERVICES, OR SUCH OTHER SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT OPENTRADE HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. TO THE EXTENT LIABILITY CANNOT BE EXCLUDED OR LIMITED AS SET FORTH ABOVE, IN NO EVENT SHALL OPENTRADE BE LIABLE FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, IN EXCESS OF THE AMOUNT ACTUALLY PAID BY YOU TO OPENTRADE UNDER THESE TERMS IN THE TWELVE (12) MONTHS PRECEDING ANY SUCH CLAIM.

THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS FAIL WITH RESPECT TO THEIR ESSENTIAL PURPOSE.

You agree to indemnify, defend, and hold harmless OpenTrade, our affiliates, advertisers and each of our/their respective directors, officers, shareholders, employees, independent contractors, agents, representatives and successors and assigns, from and against any losses, liabilities, suits, claims, actions, costs, damages and expenses (including, without limitation, reasonable attorneys' fees and expenses) directly or indirectly resulting from, arising out of, relating to or in connection with (i) violation of these Terms by you, any Authorized User or other person using your account or Credentials, (ii) your or any Authorized User's access to or use of the Services or Client Services, (iii) any information used, stored, or transmitted in connection with your account or Credentials; (iv) breach of the rights of any third party, including but not limited to privacy, publicity, intellectual property, or other proprietary rights, by you, any Authorized User or anyone using your account or Credentials; or (v) violation of any law, regulation, or other legal requirement. This paragraph is intended to be applicable to the maximum extent allowed by law.

 

13. Purchases and Subscriptions

You may have the opportunity to purchase products and services from OpenTrade ("Paid Services"), for which OpenTrade will charge fees, as determined by OpenTrade in its sole discretion ("Fee(s)"). OpenTrade will provide notice of such Fees then in effect in relation to such Paid Services. If you wish to receive or use such Paid Services, you are required to pay all applicable Fees in advance.

OpenTrade reserves the right to change its Fees at any time, upon notice to you if such change may affect your existing subscriptions. If you received a discount or other promotional offer, OpenTrade shall have the right to automatically and without notice renew your subscription to such Service(s) at the full applicable Fee.

All Fees shall be deemed to be in U.S. Dollars, except as specifically stated otherwise in writing by OpenTrade. To the extent permitted by law (and unless specified otherwise by OpenTrade in writing), all Fees are exclusive of all taxes (including value added tax, sales tax, goods and services tax, etc.), levies or duties imposed by taxing authorities ("Taxes"), and you shall be responsible for payment of all applicable Taxes relating to your use of the Services, or to any payments or purchases made by you. If OpenTrade is obligated to collect or pay Taxes for the Fees payable by you, and whether or not such Taxes were added and collected from you for previous transactions, such Taxes may be added to the payment of any outstanding Fees and will be reflected in the Invoice for such transaction. We recommend that you verify the existence of any additional fees you may be charged by third parties in connection with the purchase of Paid Services or in connection with the renewal thereof (such as international transaction fees, currency exchange fees or fees due to banks or credit card companies). OpenTrade is not responsible for any such additional fees or costs.

OpenTrade and/or its affiliated companies will issue an invoice or credit memo for any payment of Fees or refund made to or by OpenTrade (each, an "Invoice"). Each Invoice will be issued in electronic form and based on the country stated in your billing address, and will be made available to you via the Services and/or by email. For the purpose of issuing the Invoice, you may be required to furnish certain personal information (as such term is used in the Privacy Policy) in order to comply with local laws. Please note that the Invoice presented in the Services may be inadequate with your local law requirements, and in such case may be used for pro forma purposes only.

If you purchase a subscription, it will automatically renew indefinitely, and you will be charged, until you cancel. By purchasing a subscription, you are explicitly consenting to an indefinitely automatically renewing subscription pursuant to these Terms.

If you are a California resident, this section serves as a clear and conspicuous notice pursuant to California's "Automatic Renewal Law" (Cal. Bus. & Prof. §17600, et seq) that discloses to you the terms of your subscription renewal, our cancellation policy, and instructions on how to cancel your subscription.

If you make purchase of Services, you agree to pay the prices displayed to you for the Services you've selected as well as any sales or similar taxes that may be imposed on your payments, and you authorize OpenTrade to charge the payment method you provide (your "Payment Method"). OpenTrade may correct any billing errors or mistakes even if we have already requested or received payment. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, OpenTrade may terminate or downgrade your Client Services immediately in its sole discretion, on the basis that you have determined that you no longer want such Client Services.

In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for your credit or debit card as provided by your credit or debit card issuer. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer, or other provider of your chosen Payment Method. Certain users may be entitled to request a refund. See below for more information.

Generally, all purchases are final and nonrefundable, and there are no refunds or credits for partially used periods, except if the laws applicable in your jurisdiction provide for refunds.

In accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at Consumer Information Division, 1625 North Market Blvd., Suite N112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

 

14. User Products and E-Commerce

The Services also include certain features which enable you to sell products, goods, services and content through the Services and through your Client Services ("User Products").

You are solely responsible for your User Products and related activities, and any promotions and related content contained or referred to in your Client Services, and in compliance with any laws applicable thereto. We are merely providing the platform for you to sell your User Products and manage your related activities. We are not involved in your relationship and/or any transaction with any actual or potential buyer, suppler or distributors of your User Products.

When someone purchases your User Products, the payments for such transactions will be processed through a third-party payment service provider.

By using any of the features described in this Section 14, you acknowledge, represent, warrant and agree that:

  1. You shall be solely and fully responsible for all Taxes and fees of any nature associated with sales of your User Products and related activities, including any Taxes related to the purchase or sale of the User Products, and to collect, report and remit the correct amounts to the appropriate authorities and/or inform your end users of such and provide them with a duly issued invoice as required by law;
  2. Any Taxes indicated by the features provided to you by OpenTrade within your Client Services are solely provided for illustration purposes only, and may not be relied on in any way;
  3. You shall be responsible for and bear all costs of procuring and delivering your User Products, and for providing them in a safe and professional manner, consistent with industry standards;
  4. You are solely responsible for any and all statements and promises you make and for all assistance, warranty and support regarding your User Products, and shall provide true contact information on your Client Services for any questions, complaints or claims; and
  5. You may not offer or sell any User Products, or provide any information, content or material regarding User Products, which may be deemed hazardous, counterfeit, stolen, fraudulent, offensive or abusive; which are prohibited for sale, distribution or use; or which otherwise fail to comply with any applicable laws, including with respect to consumer rights, intellectual property or privacy rights, product safety, trade regulations and sanctions, support, maintenance and export; and
  6. OpenTrade may, at any time and at its sole discretion, suspend, disable access to or remove your Client Services and/or any User Products – whether or not incorporated, published with or made a part of your Client Services at such time, without any liability to you or to any of your end users.

OpenTrade may, at any time and at its sole discretion, suspend, disable access to or remove your Client Services and/or any User Products – whether or not incorporated, published with or made a part of your Client Services at such time, without any liability to you or to any of your end users.

 

15. Links

The Services and Client Services may contain advertisements and promotions offered by third parties and links to other web sites or resources. You acknowledge and agree that the Company is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, information, statements, advertising, goods or services, or other materials on or available from such websites or resources. Your correspondence or business dealings with, or participation in promotions of, third parties found in or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, information, statements, advertising, goods or services or other materials available on or through any such website or resource.

 

16. Arbitration and Governing Law

Except for users residing within the European Union and elsewhere where prohibited by applicable law:

  1. The exclusive means of resolving any dispute or claim arising out of or relating to these Terms (including any alleged breach thereof) or the Services or any Client Services shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against the Company in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding.
  2. By using the Services or Client Services in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and the Company (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. The arbitration shall occur in King County located in the State of Washington.
  3. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company (except for small-claims court actions) may be commenced only in the federal or state courts located in King County in the State of Washington. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
  4. These Terms, and any dispute between you and the Company, shall be governed by the laws of the State of Washington without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.

For users residing in the European Union or elsewhere where this arbitration agreement is prohibited by law, the laws of the State of Washington, U.S.A., excluding Washington's conflict of laws rules, will apply to any disputes arising out of or relating to these Terms or the Services or Client Services. All claims arising out of or relating to these Terms or the Services will be litigated exclusively in the federal or state courts located in King County in the state of Washington and you and OpenTrade consent to personal jurisdiction in those courts.

 

17. Miscellaneous

The failure of OpenTrade to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect. These Terms and our Privacy Policy are the entire and exclusive agreement between OpenTrade and you regarding the Services or Client Services, and these Terms supersede and replace any prior agreements between OpenTrade and you regarding the Services or Client Services. Your use of Client Services may be subject to additional terms and conditions set forth in terms of use or other terms or agreements imposed by the applicable OpenTrade Client. If you are an OpenTrade Client for which we have developed Client Services, you should implement terms of use or other similar terms or agreements with users of such Client Services to govern your relationship with such users, and you agree to incorporate these Terms by reference into any such terms of use or similar terms or agreements. These Terms and the rights granted hereunder may not be transferred or assigned by you. Any attempted transfer or assignment of these Terms or the rights granted hereunder by you shall be null and void. OpenTrade may assign or transfer these Terms and the rights granted hereunder without restriction of any kind.