These are the entire terms and conditions that apply to the access and/or use of any of the website(s), electronic trading platform(s), software and/or services that are provided by the Company.
Defined terms. The following words and phrases shall have the following meanings:
Collectively, the Client Application Form and these Terms and Conditions;
A day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
9 am to 5 pm (UK local time) on Business Days;
“Client Application Form”
The Client Application Form to be completed by you in accordance with this Agreement at the time of registration for the Services, and to which these Terms and Conditions apply;
All information disclosed by either party to the other under this Agreement (in whatever medium, including in written, oral, visual or electronic form and whether before or after the date of this Agreement) including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information;
“Data Protection Legislation”
(a) all applicable law and regulation concerning data protection and/or privacy in or relating to the European Union (as composed from time to time), including Directive 95/46/EC of the European Parliament on the protection of individuals with regard to the processing of Personal Data (for so long as the relevant provisions of such Directive remains in force), and (with effect from such time as it comes into force) the EU General Data Protection Regulation (2016/679); and (b) all local laws or regulations in force from time to time, in any country which as at the Effective Date is a member state of the European Union, implementing, giving effect to, replacing, consolidating or otherwise supplementing the law and regulation referred to in part (a) of this definition, or which otherwise concern data protection and/or privacy;
Documentation (if any) made available to you by us online via the System or otherwise provided via email to you, containing user operating guide and/or instructions for the Services;
The date on which this Agreement comes into force, being the date on which you complete the Client Application Form and your registration for the Services is validated by us;
The Fees payable by you to us for the Services, as stated in the Client Application Form;
A period of 12 months, or as otherwise stated in the Client Application Form;
With respect to a Party: (a) that Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts; (b) that Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a scheme for a solvent amalgamation of that Party with one or more other companies or the solvent reconstruction of that Party); (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that Party (other than for the sole purpose of a scheme for a solvent amalgamation of that Party with one or more other companies or the solvent reconstruction of that Party); (d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over that Party; (e) any event, actions or proceedings is taken or arises preparatory to or in anticipation of any of the foregoing; or (f) in the case of a Party who is an individual, any equivalent or analogous event to any of the foregoing occurs; limited to all similar or analogous rights throughout the world, in each case for the full term of the relevant right;
All direct or indirect holding companies of Silicon Markets Limited from time to time, and all direct and indirect subsidiary companies thereof and of any such holding companies from time to time; in which respect “holding company” and “subsidiary” shall mean as set out in section 1159 of the Companies Act 2006;
A contracting party to this Agreement, which includes any successor in title or permitted assignee;
Means as defined in the Data Protection Legislation;
A period of 12 months, or as otherwise specified in the Client Application Form;
The services provided by us to you under this Agreement, as specified in the Client Application Form;
The online software applications and programs owned by us which (in whole or part) provide the underlying functionality and features of the Services, but excluding Third-Party Software;
“Third Party Software”
Third-party software licensed to us for use in, or in in conjunction with, the Software in order to make the Services available to you;
Any extraneous thing or device (including any malicious code, worm, trojan horses or virus) which is intended to designed to disable, damage, erase, disrupt, prevent, impair or otherwise adversely affect the normal operation of or access to any computer programme, software, database or contents thereof, hardware or equipment, network or telecommunications service, or otherwise adversely to affect the use of the Services.
“we”, “us”, “our”
Silicon Markets Limited trading as Silicon Signals, a company incorporated in England under number 09587159 whose registered office is at 100 Avebury Boulevard, Milton Keynes, MK9 1FH and operating address at 111, Baker Street, First Floor, London W1U 6SG;
The individual as specified in the Client Application Form, and shall include any person claiming on your behalf and/or your executors, administrators or successors in title;
(a) any data or information provided by you to us in connection with the use of the Services, and (b) any data or information which is uploaded by you to the System in the course of your use of the Services;
1.2 Interpretation. In this Agreement, unless otherwise specified or the context otherwise requires:
1.2.1 words importing the singular only shall include the plural and vice versa, and words importing the whole shall be treated as including a reference to any part;
1.2.2 reference to this Agreement or to any other document is a reference to this Agreement or to that document as modified, amended, varied, supplemented, assigned, novated or replaced from time to time as permitted by the provisions of this Agreement;
1.2.3 reference to any provision of law is a reference to that provision as modified or re-enacted from time to time, except to the extent that any modification or re-enactment takes effect after the Effective Date and has the effect of materially increasing or extending any obligation or liability or otherwise materially adversely affects the rights of either Party;
1.2.4 reference to any statutory provision includes a reference to any subordinate legislation made under that provision from time to time;
1.2.5 reference to any statutory provision or legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept, state of affairs or thing shall in respect of any jurisdiction other than England be deemed to include that which most closely approximates in that jurisdiction to the English statutory provision or legal term;
1.2.6 any phrase in this Agreement introduced by the term “include”, “including”, “in particular” or similar expression will be construed as illustrative and will not limit the sense of the words preceding that term;
1.2.7 headings used in this Agreement (including at the beginning of clauses) are for reference only and shall not form an operative part of this Agreement or otherwise affect its construction or interpretation;
1.2.8 a “person” includes any individual, firm, company, corporation, body corporate, government, state or agency of trust or foundation, or any association, partnership or unincorporated body of two or more of the foregoing (whether or not having separate legal personality and wherever incorporated or established); and
1.2.9 “written” or “in writing” includes emails but excludes all other content or messages sent by mobile phone or via any instant messaging or similar platform.
1.3 Status. These Terms and Conditions together with the terms of the Client Application Form shall apply to the exclusion of all other terms and conditions which you seek to impose or incorporate, or which are or may be implied by trade, custom, practice or course of dealing.
2. YOUR RIGHTS TO USE THE SERVICES
2.1 Grant of rights. Subject to you paying the Fees due under this Agreement and subject to your compliance with the other terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services and the Documentation during the term of this Agreement solely for your personal use and benefit.
2.2 Commencement. Your agreement to these Terms and Conditions becomes effective immediately upon the Effective Date. You shall provide accurate and up-to-date information when completing a Client Application Form and otherwise registering with us. You are not permitted to open or operate multiple accounts.
2.3 Non-transferable nature. The rights granted under this Agreement are personal to you and not transferable to any other person. You shall keep your password for the Services and Documentation secure and confidential and shall not share it or divulge it to any other person.
2.4 Our provision of the Services. Subject to Clause 3.5, we shall provide the Services with reasonable skill and care and in accordance with good industry practice. Any technical support provided by us shall be as set out in the Documentation and shall be limited to the Business Hours.
3. RESTRICTIONS AND DISCLAIMERS
3.1 Uploading restrictions. You shall not, in the course of the use of the Services access, store, distribute or transmit (a) any Viruses or (b) any material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; (iii) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; (iv) is otherwise illegal or causes damage or injury to any person or property; or (v) the use or analysis of which breaches or would breach your obligations under this Agreement. We hereby reserve the right, without thereby incurring additional liability to you and without prejudice to our other rights and remedies, to disable or terminate your access to the Services in whole or in part in circumstances in which you breach or threaten to breach or in our reasonable consideration have otherwise demonstrated an intention to breach the provisions of this clause.
3.2 Prohibition on copying etc. You shall not, save as otherwise permitted by applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted otherwise under this Agreement: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Third-Party Software and/or Documentation and/or Services or any output of the Services (as applicable) in any form or media or by any means; or (b) attempt to download, access, decompile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or Third-Party Software.
3.3 Prohibition on commercial use. Except as expressly permitted under this Agreement, you shall not: (a) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; (b) use the Services and/or Documentation to operate any business, agency or outsourced service provision for or for the benefit of any third party; (c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or (d) attempt to obtain or assist third parties in obtaining, access to the Services and/or Documentation.
3.4 Effect of unauthorised activities. Our obligations to provide the Services shall be disapplied to the extent of any non-conformance which is caused wholly or partly by the use of the Services by you other than in accordance with this Agreement and/or the Documentation, or by any modification or alteration of the Services by any other person.
3.5 Notification of unauthorised use by others. You shall use all reasonable endeavors to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us.
4. YOUR CONSUMER RIGHTS
4.1 Digital content. This is a contract for the supply of digital content. You acknowledge that the performance of the Services by us may commence immediately on or after the Effective Date. You further acknowledge that, by your commencement of use of the Service at any time within 14 days of the Effective Date, you expressly consent that your statutory right to cancel shall be extinguished.
5. YOUR OBLIGATIONS TO US
5.1 Co-operation. You shall, at your own cost, provide us with all necessary co-operation in relation to this Agreement, and all necessary access to such information as may be required us, in order to provide the Services, including but not limited to your Data, security access information and configuration services.
5.2 Legal Compliance. You shall, at your own cost: (a) comply with all applicable laws and regulations with respect to your activities under this Agreement; and (b) obtain and maintain all necessary licenses, consents, and permissions needed for your use of the Services (other than those rights granted to you under this Agreement).
5.3 Responsibility for your IT systems. You shall, at your own cost, ensure that your network and systems comply with the relevant specifications provided by us from time to time, and you be solely responsible for (a) procuring and maintaining your network connections and telecommunications links from your systems to our data centers, and (b) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
6.1 Payment of our Fees. The Fees payable are as stated in the Client Application Form. Our Fees are chargeable on either an annual basis or in monthly installments as stated in the Client Application Form. If you choose to pay the Fees on an annual basis, you shall be required to pay in full on the Effective Date and subsequently on each anniversary thereof. If you choose to pay Fees in monthly installments, you shall be required to pay 12 equal amounts monthly in advance, the first payment falling due on the Effective Date and subsequently on or around the same day in each subsequent month thereafter. The total Fee will be greater if you pay by monthly installments than if you pay annually.
6.2 Fees Variation. We shall increase our Fees once in each 12 month period. Each increase in Fees shall however only take effect from the commencement of a relevant Renewal Period commencing in the applicable 12 month period.
6.3 Non-refundable. Except in circumstances in which you are entitled to a refund or to cancel your subscription in accordance with your statutory rights, all Fees are payable by you in full and on a non-refundable basis and without set-off or deduction.
6.4 Tax. All amounts payable under this Agreement are stated exclusive of value added tax, which shall be payable in addition to the principal amount(s) charged to you. If you are required to make any withholding by way of withholding tax it shall gross up the payment to us so that we receive the sum that it would have received had not such withholding been made.
6.5 Interest. We reserve the right to charge interest on a daily basis on all unpaid sums from the due date for payment until payment in full is received, whether before or after judgment, in accordance with our rights under applicable law.
7. INTELLECTUAL PROPERTY, DATA AND DATA PROTECTION
7.1 Intellectual Property. You acknowledge and agree that we and/or our Affiliates and/or its or their respective licensors shall own all other Intellectual Property in and to: (a) the Services, the Documentation, the Software and the Third Party Software; and (b) all other software, materials and works created or developed in the course of the provision of the Services including all reports and outputs of the Services (but excluding your Data). To the extent that any of the Intellectual Property mentioned above does not, by operation of the law, vest automatically in us but is owned by you, you hereby irrevocably assign the same to us by way of present and (where possible) future assignment with full title guarantee. You shall do or procure to be done all such things and execute or procure the execution of all such documents which may be necessary or desirable to vest such rights in us absolutely.
7.2 Your Data. You shall own all right in your Data and shall have sole responsibility for its legality, reliability, integrity, accuracy and quality.
7.3 Back-ups. We shall follow our normal operating procedures for the backup of your Data. In the event of any loss or damage to your Data, we shall use all reasonable commercial endeavors to restore from the latest back-up of such your Data (if any) maintained by us. We shall not however be responsible for any loss, destruction, alteration, or disclosure of your Data if and to the extent that such back-up procedures are inoperative, inadequate, or defective in any way.
8.1 Obligations of confidentiality. Each of us (the “receiving Party”) shall keep all Confidential Information of the other party (the “disclosing Party”) secret and shall not disclose or permit the disclosure of it to any other person, except that we may disclose your Confidential Information to our personnel and/or professional advisers as required in connection with the performance of our obligations or exercise of our rights under this Agreement.
8.2 Exceptions. The obligations of confidentiality set out immediately above shall not apply to any information that: (a) the receiving Party can reasonably demonstrate was known to the receiving Party or in its possession before that information was acquired from the disclosing Party; (b) is in or enters the public domain through no default of the receiving Party or any person on its behalf, with effect from the date that the relevant Confidential Information enters the public domain; or (c) the receiving Party receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that information as a result of a breach of an obligation of confidence.
8.3 Disclosure required by law. The obligations of confidentiality set out above shall not apply to any information which is required to be disclosed by any applicable law or by order of any court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure, provided that the receiving Party shall use all reasonable endeavours: (a) to give the other Party as much written notice of the disclosure as it reasonably can to enable the other Party to seek a protective order or other action protecting such information from disclosure; (b) to furnish only that portion of the information that it is legally obliged to disclose; and (c) to consult with the other Party with a view to agreeing the timing and content of any such disclosure.
8.4 Notification. The receiving Party shall notify the disclosing Party promptly if it becomes aware that any of the Confidential Information falls within the provisions of clauses 8.2 and 8.3.
9.1 Indemnity. You shall defend and indemnify us and our Affiliates, and our and their respective officers, directors, and employees, on-demand, from and 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 use of the Services and/or Documentation by you and/or by any person under your auspices or control.
9.2 Disclaimers. Except as expressly and specifically provided otherwise in this Agreement, and to the fullest extent permissible by applicable law:
9.2.1 you assume sole responsibility for all information, notifications, results, data or disclosures (collectively “Results”) supplied by us to you or otherwise obtained or delivered (including automated delivery) in the course of the use of the Services and the Documentation by you, and we hereby to the fullest extent permissible under applicable law expressly disclaim any and all responsibility and liability to you in respect of such Results, your conclusions drawn from such Results, reliance upon such Results or any steps, measures or actions taken or omitted to be taken relating to such Results;
9.2.2 the Services and the Documentation are provided to you on an “as is” basis;
9.2.3 we do not undertake, warrant or represent that your use of the Services will be uninterrupted or error-free, or that the Services, Documentation and/or the information obtained by you through the Services will meet your requirements;
9.2.4 we are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.3 The nature of the Services. The Services provide general market intelligence in response to specific investment criteria provided by you but do not provide any specific recommendations or investment advice of any kind. The Services shall not initiate or execute any trading instruction or transaction. You acknowledge that your use of the Services, and all investment decisions made by you in reliance on the Services, are entirely at your own cost and risk. You further acknowledge that all investment is subject to risk and that the value of investments and the income derived from them may fall as well as rise and is not guaranteed. We do not make any warranties or representations as to the performance, profitability, or outcome of any investment or trading transaction.
9.4 Third parties. We make no representation or commitment and shall have no liability or obligation whatsoever to you in relation to any third party goods or services used by you in connection with or in conjunction with the use or receipt of the Services, including the services of any broker, financial institution or third party software or platform.
9.5 Events of Force Majeure. We shall have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement by any acts or events beyond our reasonable control, including: (a) strikes, lock-outs or other industrial disputes, war or substantive threat of war, terrorism or substantive threat of terrorism, riot or civil commotion or unrest, or malicious damage or accident; (b) compliance with any law not in force as at the Effective Date, or which is a modification or re-enactment of a law in force as at the Effective Date; (c) unforeseeable failure of a third party internet, telecommunications or power network, or unforeseeable breakdown of plant or machinery; or (d) fire, flood, storm, earthquake, subsidence, epidemic or other natural physical disaster or catastrophe; in each case provided that we notify you of any such act or event and its expected duration, and provided further that we shall use reasonable endeavours to mitigate the effect of any such acts or events.
9.6 Liability which is not excluded or restricted. Nothing in this Agreement excludes or restricts our liability to you for any death or personal injury caused by our negligence, or for our fraud or fraudulent misrepresentation.
9.7 Exclusion of our liability to you for certain losses. Subject to the foregoing clauses, neither we nor any of our Affiliates shall be liable to you, whether in contract, tort (including for negligence or breach of statutory duty) or otherwise, for (a) any of the following losses whether direct or indirect: loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss; or (b) for any special, indirect or consequential loss, costs, damages, charges or expenses; in each case, however, arising under or in connection with this Agreement.
9.8 Limitation of our residual liability to you. Subject to the foregoing clauses, our and our Affiliates’ total and aggregate liability to you, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, arising under or in connection with the performance or non-performance or contemplated performance of this Agreement, shall be limited to 150% of the total Fees paid to us by you during the 12 months immediately preceding the date on which the claim arose.
10. DURATION AND TERMINATION
10.1 Duration. This Agreement shall unless otherwise terminated as provided in this clause, commence on the Effective Date and continue for the Initial Period and thereafter automatically renew for successive Renewal Periods, subject to early termination by either Party pursuant to Clause 10.2.
10.2 Termination for convenience. Either Party may terminate this Agreement upon giving at least one month’s prior written notice to the other Party, such notice to take effect on the last day of the Initial Period or of the relevant Renewal Period (as applicable) in which the notice is given.
10.3 Termination for cause. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other party if:
10.3.1 the other Party commits a material breach of any other term of this Agreement which breach is either irremediable or remediable but has not been remedied within 30 days after being notified by the other Party in writing to do so;
10.3.2 in England, any Insolvency Event occurs, arises or is otherwise taken or occasioned with respect to the other Party; or in any other jurisdiction, any event, circumstance or proceedings occurs, arises or is otherwise taken or occasioned with respect to the other Party having an effect equivalent, analogous or similar to an Insolvency Event in England; or
10.3.3 the other Party dies or is permanently incapacitated.
10.4 Consequences of termination. Upon termination of this Agreement (howsoever arising):
10.4.1 all licences and rights granted under this Agreement shall immediately terminate and you shall immediately cease all use of the Services and/or the Documentation;
10.4.2 if you possess any of our Confidential Information you shall promptly delete or destroy it or (if we request) return it to us;
10.4.3 we shall delete all of your Data within a reasonable period of time (being not less than 30 days and not more than 60 days) of such termination; and
10.4.4 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination, shall not be affected or prejudiced.
11.1 Conflict. If there is an inconsistency between any terms of the Client Application Form and these Terms and Conditions, these Terms and Conditions shall prevail.
11.2 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
11.3 Waiver. 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.
11.4 Rights and remedies are cumulative. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
11.5 Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
11.6 Entire agreement. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement, provided that nothing in this Agreement shall exclude or restrict liability for fraud.
11.7 Rights to assign. This Agreement is personal to you, and you shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. We may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement.
11.8 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 agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
11.9 Third party rights. This Agreement does not create any right or benefit enforceable by any person not a party to it, and the Contracts (Rights of Third Parties) Act 1999 is accordingly excluded, except for (a) a person who is a permitted successor or assignee of the rights or benefits of a Party hereunder that or (b) any of our Affiliates.
11.10 Notices. Any notice permitted or required to be given under this Agreement must be in writing and, were sent by you to us, marked for the attention of Yusseri Yusoff. Notices may be hand-delivered or sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out in this Agreement (or such other address as may have been notified by that party for such purposes from time to time) or sent by email (for which purposes all emails to us must be sent to email@example.com. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre¬paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the delivery receipt obtained by the sender). The preceding parts of this clause do not apply to the service of any proceedings or other documents in any legal action, in respect of which the relevant service requirements prescribed by the court in question shall apply.
11.11 Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
11.12 Jurisdiction. Each Party irrevocably agrees that the English courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).